MATHAI ALIAS JOY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant/accused was charged with the offence punishable under Sec. 302 IPC. Appreciating the evidence on record the trial court found that the appellant/accused was exercising his right of private defence; but he exceeded it. Accordingly, he was convicted for the offence punishable under part I of Sec. 304 IPC and was sentenced to undergo rigorous imprisonment for six years. This conviction is under challenge in this appeal.

(2.) IT is contended that the accused had not exceed his right of private defect. One facing danger to his own life due to threat from another cannot exercise his private defence in such a way that any injury being inflicted shall not reach the vital part of the body of the aggressor. Therefore having found that the appellant/accused was exercising the right of private defence, the trial court erred in finding that the he had exceeded it, especially when PW9 doctor who conducted autopsy and issued Ext. P9 post mortem certificate clearly stated that injury No. 5 alone on the body of the deceased was fatal. According to him, as other injuries were no fatal injuries, it could not have been found that he had exceeded his right of private defence. IT is further contended that it is discernible from the evidence of PW1 and PW2 and also PW14, though hostile, that the aggressive act came from PW2 when he questioned the accused with regard to his default in reconstructing the boundary fence and that there was quarrel between the two. PW14 who came there tried to separate PW2 catching hold of him, so that shall not be any assault by him on the accused. IT was at that time the deceased caught hold of the neck of the accused causing apprehension of death or grievous hurt. IT was to escape from such assault by the deceased, as is discernible from the version of the accused in his 313 statement, that he inflicted the injuries. Therefore, on that count also this is a case squarely coming within section 100 IPC. So the conviction and sentence are bad.

(3.) CERTAINLY the right of private defence is a very valuable right serving a social purpose and should not be construed narrowly. At the same time it cannot be based on surmises and speculations. In order to find whether the right is available to an accused, the entire incident must be examined with care and viewed in its proper setting. It is no doubt true that nothing is an offence which is done in exercise of right of private defence of person or property, for the purpose of repelling an unlawful aggression, within certain limits. The right of private defence under the Indian Penal Code is entirely a preventive measure provided to a person who is unlawfully attacked by another, to dispel such attack. No such right is available under the code in respect of an act which by itself is an offence. In other words the principle of right of private defence cannot legitimately be used as a shield to justify an act of aggression. The right commences as soon as reasonable apprehension of danger to the body arises from an attempt or thereat to commit an offence, although the offence may not have been committed. But certainly not until there is that reasonable apprehension. As soon as the cause of reasonable apprehension disappears, there can be no occasion to exercise the right of private defence.