2021 Supreme(Ker) 1100

IN THE HIGH COURT OF KERALA AT ERNAKULAM
GOPINATH P., J.
Sivankutty Nair S/o Bhaskara Pillai – Appellant
Versus
State of Kerala – Respondent
Criminal Appeal No. 166 of 2006
Decided On : 20-11-2021

Point of Law: If right of private defence has not been established (on test of preponderance of probabilities) as required under Section 105 of Indian Evidence Act, if court, on an overall appreciation of facts and circumstances of case comes to conclusion that claim of private defence by accused is a reasonably acceptable version, court would then grant benefit of doubt and acquit accused on premise that prosecution has failed to establish its case beyond all reasonable doubt or on premise that prosecution had failed to prove certain ingredients of offence alleged.

Headnote:

Indian Penal Code, 1860 - Sections 447, 307, 302, 96, 97, 100, 102, 324 and 304 (Part I) - Indian Evidence Act, 1872 - Section 142, 27 and 105 - Section 313 and 232 - Criminal Trial - Offence of Murder - Right of private defence - Risk of death/grievous hurt - Appeal against conviction - Benefit of doubt - Grant of Whether appellant/accused is entitled to benefit of exception contained in Section 96 of Code also having regard to provisions of Sections 97, 100 and 102 of Code - When PWs. 1 to 3 (son, wife and daughter of deceased) and deceased were in their house, appellant/accused, who was their neighbour was seen coughing and spitting on a small public pathway in front of their house - Alleged that when PW-1, son of deceased, had come out of house and had questioned appellant/accused as to why he was coughing and spitting, appellant/accused got infuriated - Alleged that appellant/accused and PW-1 engaged in a tussle and appellant/accused took out a folding knife (a penknife) and stabbed PW-1 causing an injury on his right thigh - On hearing cries of PW-1, deceased and his wife (PW-2) came rushing out and while they were trying to ensure that appellant/accused did not cause any further injury to PW-1, appellant/accused stabbed deceased and he died almost instantaneously.

Finding of the Court:

The evidence of PW-1 (son of deceased), PW-2 (wife of deceased) and PW-13, (investigating officer) is consistent in that first injury in scuffle between appellant/accused and PW-1 was sustained by appellant/accused and that he had fallen down and inflicted an injury on PW-1 when he was lying down. The fact that injury inflicted by appellant/accused was on thigh of PW-1 also supports fact that appellant/accused had fallen down and had injured PW-1 from that position. Of course, in box, PW-1 has stated that initial injury on appellant/accused was not caused on account of PW-1 hitting his head with a stick, but was on account of fact that appellant/accused had hit his head on a concrete basement while falling down - at that point of time. This may have taken place inside property of deceased. But these circumstances, by itself, cannot be lead to conclusion that appellant/accused was the aggressor. Again, it is in evidence that appellant/accused was running a pan shop - Knife which was used by appellant/accused though not marked in evidence, was a small folding knife. It has come out in evidence that knife, that was used by appellant/accused to inflict injuries on deceased was, according to recovery mahazar, a knife, blade of which was 8 cms in length from sharp tip to base. The handle of knife was 10 cm long - Taken into consideration by learned Sessions Judge to conclude that appellant/accused was not acting in self defence, are not sufficient to hold that appellant/accused was not entitled to benefit of that exception. It is settled law that even if accused faces only a reasonable apprehension of grievous hurt, right of private defence may even extend to causing death of aggressor. The fact that appellant/accused coughed provocatively in front of the house of accused is not a circumstance that can be taken into consideration to hold that appellant/accused was aggressor. The evidence in case is clearly suggests that on hearing appellant/accused coughing in front of house of accused , PW-1 came out of house and questioned him. It is not suggested that at that time, appellant/accused had entered property of the deceased. It appears that there was an argument and a scuffle between PW-1 and accused - Appellant/accused was accosted by PW-1 for making provocative sounds while he was admittedly outside property of deceased. Thereafter it appears that an argument broke out between appellant/accused and PW-1 and appellant/accused continued the argument inside the compound of deceased - Court view does not amount to a criminal trespass as defined in Section 441 of Code. At any rate there was no mens rea to commit any criminal trespass - Therefore conviction of appellant/accused under Section 447 of Code also cannot be sustained.

Result: Appeal allowed.