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1983 Supreme(Ker) 85
Judges : G.BALAGANGADHARAN NAIR,SUKUMARAN
SUDHAKARAN ANIYAN KUNJU - Appellant
Versus
STATE OF KERALA - Respondent
Case No : Crl.A. No. 282 of 1981
Decided On : 03/25/1983
Advocates Appeared :
N. Raghava Kurup; For Appellant Public Prosecutor; For Respondent
The main legal point established in the judgment is that the accused exceeded the right of private defence of property, leading to liability for culpable homicide not amounting to murder under S.304, Part I.
Headnote:
S.302, I.P.C. - Conviction under S.302, I.P.C. - Summary
Fact of the Case:
Appellant Sudhakaran alias Aniyan Kunju aged 24 was accused 1 in Sessions Case No. 22 of 1981 before the Sessions Judge, Kottayam. He has been convicted under S.302, I.P.C. and sentenced to imprisonment for life. Accused 2 who was prosecuted with him has been acquitted. The prosecution case involved the accused forcibly dragging the deceased into a compound and inflicting stabs on him, resulting in his death.
Finding of the Court:
The court found accused 1 guilty of causing the death of the deceased and held that he had exceeded the right of private defence of property, rendering himself liable for culpable homicide not amounting to murder under S.304, Part I. The court set aside the conviction and sentence under S.302 and convicted accused 1 under S.304, Part I, sentencing him to rigorous imprisonment for 7 years.
Issues: The issues involved the acceptance of prosecution evidence, the right of private defence set up by the accused, and the liability of accused 1 for the injuries and death of the deceased.
Ratio Decidendi: The court held that accused 1 had exceeded the right of private defence of property, rendering himself liable for culpable homicide not amounting to murder under S.304, Part I. The court also commented on the irregular procedure in recording the evidence of a child witness.
Final Decision: The conviction and sentence of the accused under S.302 were set aside, and accused 1 was convicted under S.304, Part I, and sentenced to rigorous imprisonment for 7 years.
1. Appellant Sudhakaran alias Aniyan Kunju aged 24 was accused 1 in Sessions Case No. 22 of 1981 before the Sessions Judge, Kottayam. He has been convicted under S.302, I.P.C. and sentenced to imprisonment for life. Accused 2 who was prosecuted with him has been acquitted.
2. The prosecution case is as follows: The deceased Thomas, his wife pw.1 and children pw. 2 and Beena were residing in the Chettiyath house marked 2 in the plan Ext. P-6. To the north-west of this house is the house of accused No. 2 marked 1. Accused 1 who is the cousin of the 2nd accused's wife also resided with him to look after his affairs as the 2nd accused was mostly away being employed in the railway. On the northern side of the compound of the 2nd accused is a public pathway running east and west. It touches the compound of one Rajan pw. 3 on the west. From the public pathway there is a foot-path leading to the house of accused 2. The relationship between Thomas and accused 2 was not happy as Thomas spread a story that accused 2 had committed theft of coffee-beans from the land of one Namboodiri, a neighbour. On 18-8-1980 at about 6.45 p. m., Thomas left his house and proceeded west along the public pathway for going to the house of pw. 3 for looking up pw. 3's brother-in-law who was ailing. When he came near the entrance to the compound of accused 2, accused 2 came out and forcibly dragged Thomas into the compound against his resistance. In the course of the scuffle he pushed Thomas down to the ground. Accused 1 who was nearby inflicted stabs on the abdomen of Thomas with the Malappuram Knife M. 0.2 and when on receiving the injuries Thomas turned, he inflicted further stabs on his back. The accused then ran away.
3. pws.1 and 2 and others who were attracted by the noise from the scene saw what had happened to Thomas. They carried him to his house and then took him to the Medical College Hospital at Kottayam. He was examined by a Medical Officer pw. 4 who has issued the wound certificate Ext. P3 pursuant to an intimation Ext. P.5 sent from the hospital Pw.7 a Head Constable of the Gandhi Nagar Police Station came to the Hospital and at 10.30 a. m. on 19-8-1980 recorded the first information statement Ext. P1 given by pw.1.On this he registered a case for the offences under S.342 and 324 read with S.34 I.P.C. under the F. I. R. Ext. P. 7. pw. 8, the Sub-Inspector of the Station took up the investigation and at 1 p. m. he prepared the scene mahazar Ext. P8. When the investigation was in progress Thomas died on 19-8-1980 at 5 p.m. On receiving information about the death pw. 8 sent a report Ext. P11 to the court substituting S.302 for S.324 in the case. In the wake of the alteration of the Section, pw. 9, the Circle Inspector, assumed charge of the investigation. He proceeded to the hospital and conducted the inquest upon the dead body of Thomas from 8.30 a. m. to 10.30 a. m. on 20-8-1980. After the inquest pw. 5, Professor of Forensic Medicine and Police Surgeon, did the post-mortem examination between 11.30 a. m. and 12.30 p. m. on 20-8-1980. Ext. P1 is the relative certificate issued by him. The accused who were absconding appeared before pw. 8 on 10-9-1980. Accused 1 produced the knife M.O.2 before him. pw. 8 seized M. 0.2 under the mahazar Ext. P12. pw.9 completed the investigation and submitted the charge-sheet against the two accused.
4. The accused pleaded not guilty in the court below. The prosecution examined pws.1 to 9 and marked Exts. P1 to P14 and M. Os.1 and 2. The accused did not give any evidence either oral or documentary.
5. When questioned on the prosecution evidence under S.313, Criminal Procedure Code, the 1st accused gave the following version of the incident. While he was standing in the court-yard, Thomas came to the front of the house uttering abusive words. He retorted in the same language. At this time Thomas rushed up and tried to beat him with a stick. He avoided the blow when Thomas aimed a second blow on his head.
