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2006 Supreme(Ker) 443
Judges : K.S.RADHAKRISHNAN,V.RAMKUMAR
Thomas Varkey - Appellant
Versus
State of Kerala, Represented by the Circle Inspector Of Police - Respondent
Case No : CRL.A.No.66 of 2003
Decided On : 07/25/2006
Advocates Appeared :
For the Appellant: Alexander Skaria, Grashious Kuriakose, Advocates. For the Respondent: Sujith Mathew Jose, Public Prosecutor.
Headnote:
Criminal Law - Plea of Private Defence - Held, Where injuries are found on the accused and if the accused raises a plea of private defence, the plea has to be considered in the facts and surrounding circumstances obtaining in the case - Failure to explain the injuries on the accused probabilises the plea of self defence - It cannot be stated as a universal rule that whenever injuries are found on the body of the accused person a presumption must be raised that it is due to the exercise of right of private defence - Principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries - Evidence in each case has to be considered from the point of trustworthiness and from the angle as to whether it inspires confidence in the mind of the court to accept the same and the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of the court - burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the materials on record - Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension of attack from the side of the accused.
Radhakrishnan, J.
Calumny at times assumes dangerous proportions which can even cost the life of a person, a story which unfolds in this case. Accused, Thomas Varkey @ Mundackal Monachan and the deceased, Sebastian @ Sybichan, were labourers engaged in the construction of the house of Manjulankal Mary (PW.6) along with several others. House warming ceremony of the house was conducted on 14.05.1997. Deceased Sybichan did not participate in the house warming ceremony. On the afternoon of 18.05.1997 deceased met P.W.6 and questioned her whether she had abused him for not attending the house warming ceremony. P.W.6 answered in the negative but enquired about the source of that tell-tale story that she had abused the deceased. Disclosing that it was the accused who had informed him, he left the house of P.W.6 telling her that he would get down the accused there.
2. The manual labourers of the locality, P.Ws. 12, 13 and 15, had assembled in the house of P.W.12. Rosamma for chatting. P.W.13 is the next door neighbour of P.W.12. While they were having their assembly in the residence of P.W.12, the accused came over there with a bundle of firewood collected from the forest and he also joined in the discussion after keeping the bundle of firewood behind the house of P.W.12. While so, deceased came over to the road in front of the house of P.W.12 and forced the accused to go with him to the house of P.W.6. The accused expressed reluctance and deferred it to the next day but the deceased was adamant and insisted again, but the accused again expressed his unwillingness. The deceased then got down into the residential compound of P.W.12 which is below the road level by about 5 feet 6 inches and dragged the accused putting a cycle chain around his neck. There ensued a scuffle between the accused and the deceased. The accused succeeded in snatching away the cycle chain which was around his neck. The accused threw it away into the property of P.W.12. P.W.13 informed the incident to P.W.5, father of the deceased. P.W.5 and C.P.W.12, who are the parents of the deceased and P.W.4, a friend of the deceased, who were in the tea shop of P.W.5 came over and intervened and separated the accused and the deceased from the scuffle. P.W.5, C.P.W.12 and P.W.4 then proceeded back to the tea shop of P.W.5. Upto this there is unanimity in the version of the prosecution and the defence.
3. The further case of the prosecution is that after having separated them from the scuffle, the deceased also proceeded towards the tea shop of P.W.5 after picking up M.O.2 broken handle of spade from the premises of the house of P.W.12. While so, the accused taking M.O.1 chopper from behind the house of P.W.12 entered the road through the property in between the houses of P.W.12 and P.W.13 and called the deceased from behind. As the deceased had moved further towards north from the portion of the road the accused went after him and inflicted fatal cut injuries on his body despite the attempt of the deceased to ward off the chopper cuts using the handle of spade. The incident occurred at 2 p.m on 18.5.1997. P.W.5 rushed to the spot. He along with others took the deceased to Adimali hospital. Later he was removed to the Medical College hospital, Kottayam for treatment and on the way Sybichan succumbed to the injuries at about 8 p.m on the 18.5.1997.
4. P.W.1, brother of the deceased gave Ext.P1 F.I statement to P.W.14 Sub Inspector of Police, Munnar at 11.45 p.m on 18.05.1997. P.W.14 on the basis of the F.I statement, registered a case as crime number 89/97 of Munnar Police Station. On the drawing of Ext. P1(a) F.I.R, P.W.14 went over to the Medical College Hospital, Kottayam on 19.05.1997 and conducted inquest on the body of the deceased in the presence of witnesses and prepared Ext.P2 inquest report which has attested by P.W.2. He took into bandobast M.O.8 lungi, M.O.11 jetty worn on the body of the deceased, M.O.9 thorthu that has been used as bandage on the injur
