SAMUEL Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT is accused No. 1 in SC No. 262/95 on the file of the Second Additional Sessions Judge, Kollam. He has been along with his wife and a relative, accused Nos. 2 AND 3, charged for the offence punishable under S.341 and 302 read with S.34 IPC. Relying on the evidence of PWs. 2 and 3, the occurrence witnesses, the court below giving him the benefit of exception No. 4 to S.300, convicted him for the offence punishable under Part I of S.304 IPC and was sentenced to undergo rigorous imprisonment for a term of 10 years and to pay compensation of Rs.75,000/- with default sentence of imprisonment for 4 years. Therefore this appeal. Accused Nos.2 and 3 had been acquitted.

(3.) The incident occurred at about 1.30 p.m. on 8-6-1995, almost in front of the house of the appellant/accused. The incident is not disputed. The attempt of the appellant is to get the shield of S.100 and 103 IPC, the right of private defence of person as well as property. Ext. D1 would certificate issued by DW1 in respect of the injury sustained by the accused, which is produced by the prosecution as Ext. P17, is projected to sustain the plea of the right of private defence. DW1 was the doctor who attended the accused when he was admitted in the hospital consequent on the injury sustained on his left fore arm. There were two injuries apart from one minor aberration. These has been found to be clear cut injuries by DW1, which could be inflicted by MO.4 chopper. This injury of the accused has not been properly explained by the prosecution. Thus the real occurrences was not revealed to the court. This explained injury itself is sufficient for the accused to plead right of private defence. The court below failed to consider this plea discernible from the materials on record including through the deposition of PW 2 and PW 3 and the defence case put forward through the statement under S.313 Cr.P.C. That the accused had taken the plea of right of private defence is evident from the discussion in para 43 of the judgment wherein the court below had come to a conclusion that he had exceeded the right of private defence. In such circumstances there was no reason for the court below to convict him under S.304 part I. This is not a case within the fold of exception No.4 to S.300 IPC. If the right of private defence has been exceeded, the case ought to have been placed within exception No. 2 of S.300 IPC. It is further submitted that the evidence given by the alleged occurrence witnesses PWs. 2 and 3 is not sufficient enough to repose confidence in court. They are interested witnesses. So on any count, the court below ought to have accepted the case of the accused and would have found that the alleged homicide was justified by reason of the exercise of right of private defence.

(3.) BY the time he reached the hospital, he had breathed his last as certified by PW 6, the doctor who attended him. PW 7 conducted post mortem examination and issued Ext. P4 certificate. The reason for death has been attributed to bleeding and shock resulting from the injury sustained.