STATE Vs. MADESHA

JUDGEMENT

(1.) WE have heard the learned counsel appearing on both sides threadbare and we have also had occasion to reappraise the records of this case. The reason why we have followed this procedure is because the accused are represented by their learned counsel and the incident pertains to the year 1991 and is an off-shoot to the disturbances that took place in that year. That there were communal flare-ups between two communities over the cauvery dispute, is also evident from the record and having regard to the complexion of the case what is predominant in the court's mind is the question whether at this late stage after the trial court has appreciated the evidence and recorded an order of acquittal, it would be prudent to disturb that order and reopen the old wounds. The learned state public prosecutor is justified in his submission that if serious offences have been committed, then the mere passage of time is no ground on which a court should refuse to reopen the entire issue. However, what we have taken note of is that the respondent's learned counsel vehemently submitted that as regards all the main heads of charges that the court will have to initially appraise as to whether the finding which is to the effect that the accused had acted in exercise of the self-defence is justified or not. His submission is that if this right is upheld, then the accused would be entitled to total immunity for the acts committed by them even though it has resulted in a death. As far as this contention is concerned what Mr. Chandramouli demonstrated to us is that the prosecution evidence itself is consistent with regard to the genesis of the incident. The trouble started when a large mob of 150 persons approached the area in a truck, set fire to the house of one thangamma and thereafter set fire to the hay-stack and were proceeding towards the house of the father of a-1 and a-2. It was at this stage that the firing took place and Mr. Chandramouli's submission is that from the number of persons, the background of inter-communal attacks that were taking place at that time and the fact that they had also already committed serious acts of arson, it was sufficient to generate alarm and apprehension in the mind of the accused that their life and property was in danger.

(2.) THE learned state public prosecutor pointed out to the court that if this is the defence pleaded by the accused, then they could have been immune from action provided the gun shot injuries were inflicted on the mob that was threatening them but that on the other hand the victim sukla was a boy who did not belong to that group and the submission canvassed is that even assuming the plea was available vis-a-vis the aggressors, that it would not have been available as against the infliction of injuries to sukla.

(3.) WE do concede that this is a fine distinction, but what the court needs to take cognizance of is the correct application of law. It is well-settled that when a split second decision is required to be taken while defending one's life or property, that even the Supreme Court has held that the evaluations cannot be done on the basis of "golden scales" in such matters as to what weapon to use, how much force would be legitimate and an extension of the same theory would include the direction in which the force is to be applied. In a case where a mob is attacking another group and a person fires in self-defence, it would be difficult for a court to insist upon a particular direction being observed when firing the gun because the entire objective is in order to scare away the aggressor. on the facts of the present case there could be no doubt about the fact that the deceased boy sukla had little to do with the clash between the two groups and it was most unfortunate that it was he who sustained the gun shot injuries. If the action is defensible and if the law prescribes an immunity in relation to the action, then it would not be open to a court to convict an accused in that background merely because the injured or the deceased did not strictly form part and parcel of the main group of aggressors. There is nothing on record to indicate that the accused had any animus vis-a-vis the deceased boy or that he was specifically targeted and consequently, the aforesaid principle would hold good and the finding of the trial court to the effect that the accused acted in exercise of the right of self-defence would still be valid for the reasons as set out by us.