SCARIA ALIAS THANKAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an appeal under S. 379, Cr. P.C. read with S. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The appellant, who is the sole accused in the case, was tried for offences punishable under Ss. 302, 326 and 324, IPC for allegedly causing the death of one Pappachan and for causing grievous hurt to Baby, PW-2, and simple hurt to the father of the deceased, PW-1, on 26-10-1982 at about 2-30 p.m. near the tea shop of the deceased. The accused also received injuries and the plea of self-defence had been put forward. The prosecution case is mainly on the evidence of the two injured witnesses, P. Ws. 1 and 2 and PW-3, wife of the deceased. The trial court having examined the evidence of the injured witnesses as well as that of PW-3, concluded that it was the appellant who inflicted the fatal injuries on the deceased and caused grievous hurt to PW-2 and simple hurt to PW-1. But, taking into consideration the plea set up by the accused, it took the view that the accused had a right of private defence and since he had a reasonable apprehension that the three persons were likely to cause his death or grievous hurt, in that view of the matter, acquitted the accused. The State Preferred an appeal questioning the said order of acquittal and a Division Bench of the Kerala High Court reversed the same holding that the accused had no such right of private defence. Hence, this appeal.

(2.) The accused is no other than the elder brother of PW-1, and the deceased was the son of PW-1 and PW-2 was the son of the deceased. It is stated that there was some family feuds between the deceased and his family members on the one hand, and the accused on the other. On the day of occurrence, PW-1 got down from a jeep in front of the house of the deceased and by then a quarrel was going on between the accused and the deceased. He saw the quarrel between the accused and the deceased. He then saw the accused whipping out a knife and stabbing the deceased. At that juncture, PW-2, son of the deceased, came out of the house with a stick and dealt a blow on the head of the accused. Thereafter, the accused stabbed PW-2 also on his stomach. When PW-1 tried to pacify, it is alleged that the accused also inflicted an injury on him and ran away. All the three injured were taken to the hospital at Palghat whereat PW-1 gave a report, Ex. P-1, to the Police. The case was registered and the accused was arrested and at his instance, MO-1, the weapon was recovered.

(3.) The deceased died and the post mortem was conducted, and four incised injuries were found on the dead body. One of the injuries extended into the left lobe of the liver and the other injuries were on other parts, namely, on the left side of the neck and on dorsum of the left hand and on the back of the chest. It is only the injury to the liver which was serious. The Doctor, however, opined that the death was due to the injury to the liver as well as cumulative effect of the other injuries. PW-2 also was examined by the Doctor who found an incised injury on his stomach. On PW-1 a simple incised injury was found on the left arm.