M V MUSAFFIR AHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) According to the prosecution the appellant/accused stabbed on the abdomen of the deceased Mustafa. This injury resulted in his death as id deposed by PW-11 doctor who conducted autopsy and issued Ext.P20 post mortem certificate. The injury sustained by the deceased was fatal. The appellant was tried for the offence punishable under section 302 I.P.C. Appreciating the evidence on record including that of PW-12 who had accompanied the deceased Mustafa to the scene of occurrence, the court below found that it was the deceased who started the trouble first and that the deceased had slapped on the face of the accused who was sitting and cleaning fish with a knife in his hand. It was at that time the accused/appellant while raising, stabbed on the abdomen of the deceased which resulted in death. The court below found that such bodily injury was inflicted in the sudden fight in the heat of passion aroused by the deceased because of the quarrel stated by him and that accused knew that it was likely to cause death. Accordingly, the court below found that the case against the accused appellant squarely fell under Exception 4 to Section 300 and the offence committed was culpable homicide not amounting to murder punishable under section 304 Part I I.P.C. He was accordingly convicted and sentenced to undergo rigorous imprisonment for seven years.

(2.) This conviction is assailed in this appeal contending that this was a case of exercise of right of private defence by the appellant to come within the coverage of Section 100 IPC. It is submitted, referring to the evidence of PW-12 that the deceased had several times slapped on the face of the accused. Naturally, it will result in apprehension of causing grievous hurt to the accused. Such an apprehension will justify the accused to cause grievous hurt to the accused. Such an apprehension will justify the accused to cause grievous hurt even to the extent of causing death of the initial offender to come within Secondly of section 100 I.P.C.

(3.) It is submitted by the learned Public Prosecutor that the nature of the injury spoken to by PW-11 and mentioned in Ext.P20 shows that it was a deep injury inflicted on the abdomen of the deceased. It had cut the aorta and caused instantaneous death. Even if he had the right of private defence, he had exceeded it, especially when the deceased or his companion, PW-12, were not armed. This is a case of culpable homicide not amounting to murder. Therefore, the finding of the court below does not warrant interference.