KELU KURUP Vs. STATE

JUDGEMENT

(1.) I will consider first the Criminal Appeal. This appeal is by the first accused. There were altogether three. First accused is the husband, second accused is wife and third accused is their son. Accused 2 and 3 were acquitted. The charges faced by all of them were under S.302 and 307 read with S.34 I.P.C. Accused No. 1 was convicted for the offence punishable under S.304 Part II I.P.C. and was sentenced to undergo rigorous imprisonment for 7 years. This conviction is under challenge in this appeal.

(2.) The plea set up by accused No. 1 was that of right of private defence. The court below accepted his case of right of private defence; but found that he had exceeded that right. Therefore, it was found that the case came under exception No. 2 of S.300 I.P.C. and was accordingly convicted under S.304 Part II as mentioned above.

(3.) It is submitted by the Counsel for the appellant that the entire incident took place in the courtyard of appellant's residential building. There was a subsisting boundary dispute between the first accused and the mother of the deceased whose property was just abutting the northern boundary of his property. Even on the date of occurrence; namely 1st October 1992, the Village Officer had come to the property to measure the same and to determine the boundary. At that time there was a scuffle between the deceased and the appellant/accused No. 1 and by reason of that, the measurement did not took place. The Village Officer advised the parties to get the services of a Taluk Surveyor to measure and determine the boundary. It was on the evening of the same day the incident had occurred. When the deceased came with P.W. 1 to the property, there was reasonable apprehension in the mind of accused No. 1, the appellant, that they may cause danger to his life, as P.W. 1 and the deceased were healthy persons. There was scuffle between the deceased and accused No. 1. It was during the scuffle, in order to avert the danger to his life that the accused had to make use of M.O. 4. Therefore he was exercising his right of private defence. He cannot, in order to avert the threat from the hands of the deceased, but inflict injuries. Therefore, it cannot be taken that he had exceeded the right of private defence. The court below had went wrong in finding that he had exceeded the right of private defence.