MOHAMMAD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in Sessions Case No.62/1956 on the file of the Sessions Court at Kozhikode is the appellant.He was tried for the offence of murder punishable under S.302 of the Indian Penal Code.A quarrel took place between himself and Ummathur Moideen,the husband of PW 1,at about 2 P.M.on 2 -9 -1956 and in the course of that quarrel the accused inflicted two stabs on Moideen who died at the spot soon after sustaining these stab wounds.The accused,while conceding that he used the knife against Moideen,put forward the plea of private defence and maintained that in order to save himself he had to resort to the use of the knife against his opponent Moideen.This plea of private defence was accepted by the learned Sessions Judge who however held that in inflicting the fatal stab on Moideen,the accused had exceeded his right of private defence.On the strength of such a finding the accused was convicted under S.304 of the Penal Code and sentenced to undergo rigorous imprisonment for three years.In the appeal preferred against such conviction and sentence,it is contended on behalf of the accused that he had not exceeded his right of private defence and that therefore he is entitled to an acquittal.

(2.) REGARDING the facts that led up to the occurrence in this case there is practically no dispute between the prosecution and the defence.In Kodoor Amsom of Valluvanad Taluk,there is a property known by the name of Pezhuthara Paramba, which is separated into two plots by a ridge running from north to south along the middle of the compound. The eastern plot was in the possession of the accused and his father,while the western plot was in the possession of deceased Moideen .Disputes arose between the accused and the deceased about the ownership and possession of a jack tree standing on the ridge separating the two plots.PW 8, the Village Magistrate at Kodoor Amsom to whom the matter was referred by the rival claimants,could not arrive at a satisfactory solution and so he advised the parties to have the matter settled by having recourse to a civil suit.He also advised the parties not to do anything to the jack tree until the dispute was finally settled by the civil court.Within a few days of the advice thus given by PW 8,the occurrence in this case took place on 2 -9 -1956.At about 10 A.M. on that day the accused cut and removed a few branches of the jack tree.Deceased Moideen who was away from his house,came to know of such an act on the part of the accused only when he returned home in the afternoon.When he had just sat down to take kanji,he saw the accused and his two sisters proceeding to the Pezhuthara Paramba.The sight of the accused roused the anger of Moideen and he did not care for the kanji but hastened to the Pezhuthara Paramba to meet the accused;Apprehending trouble,Moideens wife,PW 1,and his mother followed him.On meeting the accused in the Pezhuthara Paramba,Moideen:questioned the accused about the cutting of the branches of the jack tree,This was followed by a hot exchange of words and also by blows between them.So far both sides agree.But as to the further developments and about the exact situation in which the accused resorted to the use of his knife,there is considerable variation in the versions given by the prosecution witnesses and the accused.

(3.) THE only other witness speaking to the occurrence is PW 1 who is none other than the wife of Moideen.Her evidence is undoubtedly interested,and in her anxiety to support the prosecution version of the occurrence she has suppressed all facts favourable to the accused.The version given by her in the Sessions Court is that on Moideen meeting the accused in his portion of the Pezhuthara Paramba,there was exchange of words between the two followed by exchange of blows and that then the accused drew out his knife,caught hold of Moideen by his neck and pressed him down and inflicted a stab on the back.It is further stated that when Moideen was about to fall down,a second stab was again given below the chest.The facts elicited in the cross examination of PW 1 herself clearly go to show that the version given by her cannot be true.She has admitted that on seeing the accused going to Pezhuthara Paramba,Moideen suddenly got up from the place where he was sitting to take kanji and hastened to the property saying I have heard branches have been cut;let me go and see.It is obvious that Moideen was out to take the accused to task for having cut the branches of the jack tree about the ownership of which there was dispute.PW 1 has also admitted that she anticipated trouble and that was why herself and her mother inlaw followed Moideen to take him back.Even after reaching the spot these two ladies tried to keep Moideen under control,so as to prevent him from entering into a fight with the accused.But he wriggled out of their hold and approached the accused and got into grips with him.PW 1 was reluctant to admit that there was any scuffle between Moideen and the accused.But when confronted with her earlier deposition in the committing Magistrates Court where she had stated that after the exchange of words,the accused and Moideen had pushed and pulled each other,PW 1 had to concede that there was such pushing and pulling and that it was in the course of such pushing and pulling that the exchange of blows took place.This would indicate that Moideen could not have meekly submitted to the accused catching hold of his neck and keeping him down by one hand and inflicting the stab by the knife in the other hand.It has come out in the evidence on record that Moideen was very much stouter and stronger than the accused.In the Committing Court PW 1 had stated that Moideen was the taller and stouter person,but she has chosen to deny that statement when confronted with the same in the Sessions Court.PW 3 has also denied his earlier statement marked as Ext,D 8 that Moideen was double the size of the accused.No weight can be attached to these denials and the earlier statements given by PWs 1 and 3 and which are definitely in favour of the accused have to be given their due importance.The probability is that Moideen who had trespassed into the property in the accuseds possession and had started the fight with the accused,must have continued the fight until he was disabled by the accused by inflicting the stab wounds on him in the course of the scuffle between them.If there had been no grappling between the two and if the stabs on Moideen were inflicted in the manner described by PW 1,the accused would not have sustained the injuries found on his person and which are described in his wound certificate Ext.P3 issued by PW 6.PW 1 has not accounted for these injuries sustained by the accused.That he sustained these injuries in the course of the encounter with Moideen,admits of no doubt.On the date of the occurrence itself he had surrendered to the police who sent him to PW 6 for treatment.Ext.P.3 shows that there were three scabbed superficial scratches on the body of the accused and that these were one on the right side of the abdomen,another on the upper part of the middle of the chest and the third on the right side of the neck.According to PW 6,all these injuries could be caused by human finger nails in the course of a scuffle.This opinion of the medical witness goes in support of the accuseds version that there was a scuffle between himself and Moideen.He has also stated that in the course of the scuffle Moideen had laid his hands on the neck and had pressed it.PW 1 who chose to deny this,was not able to otherwise account for the injury found on the accuseds neck.This circumstance also induce us to believe the version given by the accused in preference to that given by PW 1.The fact that the accused has not adduced any independent evidence to conclusively establish that his version of the occurrence is the true one,cannot by itself be a reason justifying the rejection of his plea.He is entitled to take advantage of all the circumstances disclosed by the prosecution evidence itself which lend support to his plea of private defence.If the prosecution evidence is such as to raise a reasonable doubt that the occurrence might have taken place in the manner pleaded by the accused,the benefit of such doubt also must go to him.We have already found that PW 1 who is the only witness competent to swear to the details as to how the occurrence developed and terminated,has suppressed material particulars favourable to the accused and has given only a distorted and one -sided version.At the same time there are sufficient materials in her evidence itself to support the defence plea that deceased Moideen was the aggressor and that it was in the course of his aggressive attacks on the accused that he sustained the two stabs at the hands of the accused.There can,therefore,be no doubt that in such a situation the accused had the right to defend himself against the attacks of Moideen.