CHANDRASEKHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) In S.C.51/83, the Sessions Judge, Kozhikode tried the appellant (first accused) along with his son the second accused for offences punishable under Ss. 323 and 302 read with S.34 of the Penal Code. Second accused was acquitted. No appeal has been filed by the State from the acquittal. Appellant was convicted for the offence punishable under S.302 of the IPC and sentenced to undergo imprisonment for life. The only question for consideration in appeal is whether the appellant is proved beyond doubt to have committed the offence of murder. The main contention put forward before us at the time of arguments was that the appellant was acting in the exercisee of the right of private defence.

(2.) The incident was at 9.45 p.m. on 7-6-1982 near the residence of the appellant. PW. 1 and the deceased were walking towards their houses on the north of the scene of occurrence. During night, deceased Achuthan Nair was returning home. He had no light with him. When he saw PW. 1 he enquired with him whether he is coming and whether he is having light. PW. 1 was having a torchlight in hand. The deceased was going in front and PW. 1 was following him from behind.

(3.) The residence of the appellant is to a small distance west of the scene of occurrence. Appellant and his son are Namboodiri Brahmins. Through the southern side of the Illom of the appellant, there is a revetment running east to west and ending at the entrance of a varamba. That varamba from the east leads to a footpath running from south to north and leading to the residence of deceased Achuthan Nair, PW. 1 and others. On the southern side of the revetment, there was originally a bund which was used as a pathway by the deceased and others. When one Divakara Warrier constructed the basement of a building over a portion of the area covered by the varamba, the remaining varamba was also demolished and converted as portion of the southern paddy field. Thereafter, access to the foot-path through that portion became impossible because the western paddy field is at a level 5 feet lower than the ground north of the revetment. When the varamba on the soutern side of the revetment was there, pedestrians removed some stones from the eastern extremity of it for the purpose of access to the northern foot-path. When the bund was demolished, that gap was re-built by the appellant. That act on the part of the appellant caused inconvenience to the deceased as well as PW. 1 because in the absence of that access they had to take a round about route for the purpose of getting access to the foot-path from the east. On this count there was some quarrel between the appellant and the deceased. It is in this background that the incident took place.