KURIACHAN JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant/accused in S.C. No. 11/1995 on the file of the Additional Sessions Judge, Kottayam was tried for the offence punishable under S.302 I.P.C. He pleaded right of private defence. The court below found that he had exceeded the right of private defence. Accordingly, it was found in terms of Exception.2 to S.300 that he has committed culpable homicide not amounting to murder under Part I to S.304 IPC and he was sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 20,000/- with default sentence. This is under challenge in this appeal. The contention urged by the appellant is that this is a case where absolute private defence was available to him.

(2.) Evidence of occurrence witness. PW-2, was on unequivocal terms that the deceased had in his hand a bottle and with that bottle he had threatened the accused/appellant that the accused/appellant should not move further and that the appellant / accused had pleaded to the deceased to spare him without doing any harm. It was in spite of that there was scuffle and during that scuffle, the appellant drew M.O.-1 knife and stabbed on the chest of the deceased and he ran away. To avert the threat on him from the hands of the deceased and because of an apprehension of grievous hurt that may be caused by the deceased with the bottle in his hands, he was exercising his right under S.100. That right extended even to causing death to come under Secondly of S.100 IPC. It is further contended that even going by the evidence of PW-4, the wife of the deceased, she came to the scene of occurrence after the quarrel between the deceased and the appellant. She was doing her work in the kitchen. Hearing the quarrel, she came outside. It was at that time she saw the accused stabbing the deceased on his chest. Thereafter, once or twice he stabbed the deceased and ran away. Therefore, she could not have witnessed what had happened really just before the stabbing because she had been in the kitchen when she heard the quarrel. What were the words spoken to during the quarrel is not spoken to by PW-4, whereas it is spoken to by PW-2. Therefore the evidence of PW-2 is more relevant in this case and his evidence proved that the deceased was the real aggressor and the accused had to exercise his right of private defence.

(3.) Going by the evidence of PW-9 Doctor, who conducted autopsy and issued post mortem certificate, there were five injuries on the body of the deceased. Injury No. 1 on the chest along was fatal. Injuries 2 and 3 were on the front of right forearm and on the inner aspect of the right upper arm and injury No. 4 was only a linear abrasion of 3 cm. in length on the outer aspect of the front of right forearm and injury No. 5 is an incised injury on the back of the middle of right middle finger. Except injury No. 1, others are not fatal. Therefore, it cannot be taken that the appellant had exercised more force than what was required for averting attack of the deceased on his body which caused apprehension of grievous hurt from the hands of the deceased with the bottle in his hand. The deceased had a bottle in his hand and had threatened the accused/appellant with that bottle not to proceed further.