M K SOMIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The accused, Somaiah Sjo.Kallappa of Koggodlu a village in Coorg, was tried under Sec.302 of the Indian Penal Code. The learned Sessions Judge convicted the accused under Sec.304 Part II IPC. and sentenced him to undergo 18 months' rigorous imrisonment.

(2.) The prosecu.ien story, briefly stated, is as follows : One KushaLappa (deceased) was an advocate practising at Mercara. He had owned considerable property in Koggodlu village about 5 miles from Mercara. One Ponnamma was his wife. She also had owned considerable property got from her parents. Kushalappa was mostly living in Koggodlu village looking after his properties. Differences arose between him and his wile and children for various reasons. The wife and children were living separately. The wife in fact had no fixed abode and she was living here and there in the houses of her relations. The father of Somaiah is one Kallappa who has been examined in this case as PW.12. He was one of the relatives of Ponnamma who was now and then providing shelter for her whenever she wanted, Kushalappa was leading a wayward life. In tact Ponamma and her childern were afraid to live with Kushalappa as he was threatening them with dire consequences. Captain Machaiah (PW.2) is a cousin brother of Kushalappa. After leaving military service he had misunderstandings with his father for some reason or other and he was living somewhere in a village near Mysore. On 23-12- 1976 he came to the nouse of Kushalappa. He and Kushalappa spent that day in drinking. Kushalappa told Captain Machaiah that his wife was living in the house of the accused and was conspiring to murder him and therefore, he requested him to meet his wife to find out from her whether it was really go. Accordingly, on the morning of 24-12-1976 Captain Machaiah went to the house of the accused and met Ponnamma and requested her to join her husband. She refused to live with her husband stating that she and her children were treated very ba,dly and that they were afraid of their lives. But, Captain Machaiah did not ascertain from Ponnamma the truth or otherwise of the information given by Kushalappa about the conspiracy to murder him. He went back to the house of Kushalappa and told him about what transpired between him and his wife. There-after they had drinks and lunch. Some time later they went near Cooly lines where the son of Kushalappa was staying with a view to take the gun. Kushalappa was not able to get the gun. Then he proceeded along with Captain Machaiah and Narayana (PW.6) one of his servants, towards the house of the accused armed with a chopper, obviously to attack his wife and Kallappa (PW.12) the father of the accused. As soon as they went near the house, he called Kallappa and told him that he was harbouring his wife and that he would take away his woman from the house forcibly . In this behalf Kallappa and Kushalappa began to exchange words, in the course of which Kushalappa assaulted Kallappa with the chopper on his head. Kallappa cried out. Hearing his cries his daughter-in-law cried out stating that the life of Kallappa was in danger as he was being attacked by Kushalappa with a chopper. At that point of time the accused came out of the house armed with a gun and saw Kushalappa striking his father with a chopper who had fallen down. Immediately he shot at him, as a result of which Kushalappa sustained a gun shot injury, fell down and died. These are the facts which are proved and admitted in this case.

(3.) The learned Sessions Judge, after analysing the evidence on record, held that the injuries on Kallappa were simple in nature and that being so, although the accused had a right of private defence, he exceeded that right. The law on the right of private defence has been stated by the Supreme Court in a number of cases. Reference may be made to the decision in Puran Singh v. State of pun jab AIR. 1975 SC. 1674.. In the said decision, it has been held that the right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before 'the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. A person who is suddenly called upon to face an assault is entitled to resist the attack and defend himself and the person who is also attacked. There can be no doubt ,that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. If he is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and contusion, at such a moment, the uppermost feeling in his mind would be to ward off the danger and so he would naturally be anxious to strike a decisive blow in exercise of his right.