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2021 Supreme(Online)(KER) 45337
HIGH COURT OF KERALA
K. Babu, J
JOSE, S/O.OUSEPH – Appellant
Versus
SUB INSPECTOR OF POLICE – Respondent
CRL.A/2365/2006
SRI.V.RAJENDRAN (PERUMBAVOOR), SRI.GEORGE VARGHESE KIZHAKKAMBALAM, SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)
The right of private defense must be proportionate to the threat faced; excessive force invalidates this defense.
Headnote:
Assault - Criminal Law - IPC Section List - The court upheld the conviction under Section 323 IPC for voluntarily causing hurt, emphasizing that the right of private defence does not justify excessive force and confirmed the modified sentence reflecting the lengthy trial's impact.
Fact of the Case:
The appellant was convicted for assaulting the victim during an altercation with a neighbor. The victim intervened, and in response, the appellant inflicted severe injuries upon him.
Issues: Whether the prosecution established the necessary elements for convicting the appellant under Section 323 IPC and if the sentence imposed was appropriate.
Ratio Decidendi: The right of private defense is limited and cannot justify harm greater than what is necessary to prevent an attack; the appellant failed to prove he acted in self-defense.
Final Decision: Conviction confirmed; sentence modified to imprisonment till the rising of the court and compensation ordered.
JUDGMENT
Dated this the 7th day of July 2021 The challenge in this appeal is to the judgment dated
18.11.2006 passed by the learned II Additional Sessions Judge, Ernakulam in Sessions Case No.147 of 2006. By the impugned judgment, the appellant/accused was convicted of the offence under Section 323 IPC and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.1,000/-.
2. The genesis of this case dates back to 28th of August, 2005. The appellant/accused had an altercation with Yamuna (PW2), his neighbour, who was taking her goat for grazing in the property of one Murali. He caught hold on her tuft. By the time, the victim (PW1), who was on the scene, intervened and attempted to prevent the accused from causing harm to PW2. Enraged by this interference by PW1, the appellant caught hold of his penis and scrotum and twisted it causing serious injuries to him. PW1 was taken to Sanjoe Hospital, Perumbavoor by PW3 and another.
3. PW1 launched FIS before the Perumbavoor police in which Crime No.525 of 2005 was registered. The prosecution alleged that the accused committed the above acts with the knowledge that he was likely by such act to cause death of the victim and thereby committed the offence punishable under Section 308 IPC .
4. After completion of investigation, charge sheet was laid before the Judicial Magistrate of First Class, Perumbavoor alleging offence punishable under Section 308 IPC . The case was committed to the Court of Sessions, Ernakulam from where it was made over to the trial court.
5. The accused appeared before the trial court. Charge was framed against him for the offence punishable under Section 308 IPC . He pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.
6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6 and Exhibits P1 to P4.
7. After closure of the evidence on behalf of the prosecution, the accused was questioned under Section 313 Cr.P.C. He pleaded innocence. The matter was heard under Section 232 Cr.P.C. The trial court found that there was evidence against the accused and hence he was called upon to adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed from both sides, the accused was found guilty of the offence punishable under Section 308 IPC and he was sentenced to undergo simple imprisonment for a term of three months and to pay a fine of Rs.1,000/-.
8. Heard Sri.V.Rajendran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents.
9. The following points arise for consideration:
(i) Whether the prosecution succeeded in establishing the ingredients of the offence punishable under Section 323 IPC against the accused.
(ii) Whether the sentence imposed against the accused requires modification.
10. PW1, the victim has given evidence that on 28.8.2005 around 2 P.M., while he was returning home, he found the accused holding the tuft of PW2 and having quarrel with her. PW1 intervened in the matter as he wanted to prevent a cruelty being committed against a lady. The accused did not appreciate the same. He questioned the authority of PW1 to interfere in the matter. Enraged by that the accused caught hold of his penis and scrotum and squeezed it. The accused also caught hold of his neck and tried to strangle him. On hearing the cry of PW1, the wife of the accused rushed to the scene and got the grip of the accused released. PW1 got up and attempted to escape from the scene. Not being satisfied with what he had done, the accused got a chopper from somewhere and chased PW1. PW1 was bleeding profusely from the wound on his scrotum and collapsed. He was taken to a private hospital at Perumbavoor by PW3 and another.
11. According to PW1, his scrotum was torn and his testicles came out and the wound was sutured by applying ten stitches. PW2, a neighbour of the accused, gave evi
