LAWS(SC)-1999-2-126

SISI ALIAS CHALIL SASI Vs. STATE OF KERALA

Decided On February 24, 1999
Sisi Alias Chalil Sasi Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The appellant along with seven others was tried by the learned additional Sessions Judge, Ernakulam for having committed an offence under Section 302 IPC in causing murder of the deceased, Vijayan. The learned Sessions Judge acquitted the accused persons excepting the appellant, but convicted the appellant under Section 302 IPC, inasmuch as from the prosecution evidence it was established that it was the accused who gave the blow on the chest of the deceased Vijayan by means of a knife. On appeal, the High Court reappreciated the evidence and, on the basis of the evidence of PW 7, came to the conclusion that the incident occurred within the property belonging to Accused 2 and the said accused had got a decree of a civil court in respect of the same. The High Court further came to the conclusion that the deceased must be treated to be an aggressor and, therefore, the accused persons did have a right of private defence of property, but in giving the blow in question, the High Court came to the conclusion that the accused exceeded the right of private defence of property and, accordingly, acquitted him of the charge under Section 302 IPC, but convicted him under Section 304 Part I and sentenced him to rigorous imprisonment for five years.

(2.) Mr U. R. Lalit, learned Senior Counsel appearing for the appellant seriously contended that the occurrence having taken place inside the land of the accused and several accused persons having sustained injuries on their s person, the case is one where the accused is entitled to the right of private defence of person also and, in that view of the matter, the appellant would be covered by Section 100 IPC. Mr Lalit also further contended that the evidence of PW 7 itself cannot be accepted as the witness has not come forward with the true version of the incident which is apparent from the fact that several accused persons though sustained several injuries, but yet the same has not been deposed to by the witnesses. Having examined the correctness of the aforesaid two submissions and the evidence of PW 7 as well as the nature of the injury sustained by each of the accused persons, it is difficult for us to accept the contention of Mr Lalit that the accused is entitled to the protection of Section 100 of the Indian Penal Code. It is, no doubt, true that the occurrence took place inside the land of the accused persons and if the deceased was an aggressor, the accused persons were entitled to drive him out from the field. Though, some of the accused persons have sustained injuries, but considering the injuries in question, we find them to be so negligible and insignificant that the prosecution cannot be said to be obliged to explain those injuries. That apart, there is not an iota of material either in the cross-examination of the prosecution witnesses or even by way of defence suggestion to indicate that the appellant accused gave this blow only when some of the other accused persons had already sustained the injuries on their person caused by the deceased and/or their party members. In that view of the matter, it is difficult for us to comprehend how the accused would be entitled to the benefit of Section 100 IPC. The question, however, that further remains to be considered is whether in the circumstances under which the blow was given by the accused, it can be said that he did so with the intention of causing death of the deceased. As has been stated earlier, the accused was not the owner of the property but was a mere labourer and, when the deceased and other members of his party had entered upon the land of the accused where the appellant was working as a labourer, he had given one blow which no doubt struck on the vital part of the body. But it is not possible to hold that he inflicted the blow with the intention of causing death of the deceased. Consequently, the offence should be one under Part II of section 304 IPC and not under Part I. We, therefore, in modification of the judgment of the High Court, convict the appellant under Section 304 Part II ipc and sentence him to undergo rigorous imprisonment for four years.

(3.) This appeal is disposed of accordingly. The bail bonds of the appellant stand cancelled. The appellant must surrender to serve out the rest of the sentence.