Allowed

Lalu Joseph v. the State of Kerala

Kerala HC20 Feb 2020CRL.A/1149/2016

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 302 and 307 IPC for stabbing a man to death and injuring another over a dispute about slaughter-tapping rubber trees. Finding the accused had sustained serious head injuries in the same transaction which the prosecution did not explain, the court held he acted within his right of private defence and acquitted him.

What did the court decide?

Conviction and sentence imposed by the trial court set aside; the appellant directed to be set at liberty forthwith, if not required in any other case.

Lalu Joseph Vs the State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 20TH DAY OF FEBRUARY, 2020/1ST PHALGUNA, 1941

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CRL.A.No.1149 OF 2016

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[AGAINST THE ORDER IN CP 74/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR

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AGAINST THE JUDGMENT IN SC 420/2012 DATED 11-11-2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI

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CRIME NO.7/2011 OF Edakkara Police Station , Malappuram]

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APPELLANT/ACCUSED:

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LALU JOSEPH S/O.JOSEPH, MANIMALAYIL HOUSE, PALEMADU, MALAPPURAM DISTRICT.

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BY ADVS. SRI.BABU S. NAIR SMT.M.LISHA SRI.P.A.RAJESH SMT.SMITHA BABU SMT.SHAMSEERA. C.ASHRAF

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RESPONDENT/STATE:

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THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSEUCUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031, FOR THE CIRCLE INSPECTOR OF POLICE, NILAMBUR,MALAPPURAM DISTRICT. BY SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2020, THE COURT ON 20-02-2020 DELIVERED THE FOLLOWING:

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J U D G M E N T 'C.R.'

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N.Anil Kumar,J:

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This appeal is directed against the judgment passed by the learned IIIrd Additional Sessions Judge, Manjeri in Sessions Case 420/2012, arising out of Crime No.7/2011 of Edakkara Police Station for the offences punishable under Sections 302 and 307 of the Indian Penal Code. By judgment dated 11.11.2016, the learned Sessions Judge convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for a further period of four months for committing the offence under Section 302 of IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/and in default to undergo rigorous imprisonment for a period of one month for committing the offence under Section 307 of IPC. The above sentences were ordered to run concurrently.

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Brief facts which are necessary to dispose of this appeal are stated as hereunder:-

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One Abdul Sammad (PW13) was the owner and in possession of 33 rubber trees at Palemad comprised in Sy.No.980/1

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of Edakkara Village. On 5.1.2011, PW13 executed Ext.P2 agreement in favour of PW1- Rasheed. The accused had made an unsuccessful attempt to take the aforesaid rubber trees for slaughter tapping. The accused had earlier taken the rubber trees standing in his adjacent properties for slaughter tapping and ever since then he had an eye on the aforesaid 33 rubber trees as well for slaughter tapping.

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On 5.1.2011 at about 4 pm on account of the previous enmity, the accused had stabbed Ibrahim, one of the close friends of PW1, on his chest, by means of MO1 chisel and when PW1 tried to intervene, the accused had inflicted stab injuries on his right abdomen and left underarm by using the very same weapon. Ibrahim succumbed to the injuries and PW1 was taken to the hospital for treatment.

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PW20 the then Sub Inspector of Police, Edakkara Police Station registered Ext.P13 FIR on the strength of Ext.P1 FIS given by PW1. PW22 had taken over the investigation and as part of investigation, he had conducted inquest on the body of the deceased and prepared Ext.P8 inquest report. He had conducted visit to the crime scene and prepared Ext.P5 seizure mahazar and collected material objects from the scene of occurrence. The deadbody was

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sent for postmortem examination. PW15 conducted postmortem on the body of the deceased and issued Ext.P9 Postmortem Certificate. PW20 arrested the accused, recorded the confession statement of the accused while in custody, effected recovery of material objects, and the material objects recovered were sent for chemical examination. On completion of investigation, PW22 filed final report before the Judicial First Class Magistrate Court, Nilambur for the offences punishable under Sections 302 and 307 of IPC.

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The learned Magistrate numbered the final report as CP No.74/2011 and committed the case to the Court of Session, Manjeri Division. The learned Sessions Judge took cognizance of the offences under Sections 302 and 307 of IPC and numbered the case as S.C.No.420/2012 and made over the case to the Additional Sessions Judge-III, Manjeri.

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During the course of trial, PWs.1 to 24 were examined and marked Exts.P1 to P26 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. His defence is one of total denial.

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The learned sessions Judge did not deem it fit and proper to acquit the accused under S.232 of Cr.P.C. Hence, the accused was called upon to enter on his defence. DW1 was examined and marked Exts.D1 to D4 on the side of the accused.

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After the trial, the learned Sessions Judge convicted and sentenced the accused as stated in paragraph 1 of the judgment. Feeling aggrieved by the conviction and sentence, the accused preferred this appeal.

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Heard Sri.Babu.S.Nair, the learned counsel for the appellant and Mr.Alex M.Thombra, the learned Senior Public Prosecutor appearing for the State.

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Challenging the appreciation of evidence recorded by the learned Sessions Judge, the learned counsel for the appellant Sri.Babu.S.Nair submitted the following contentions:-

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i. The First Information Statement was suppressed by the prosecution.

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ii. The incident allegedly happened in the broad day

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light in the vicinity of several shops in a small

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town. The natural witnesses, who were present at

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the scene of occurrence were not examined.

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iii. PW2, whose evidence was heavily relied on by the

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trial court, had no occasion to witness the occurrence. He was only a chance witness.

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iv. The accused sustained injuries in the very same occurrence and there was profuse bleeding through the head and face of the accused.

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v. There is total non-explanation of the injuries sustained by the accused.

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vi. There was only one stab injury, on the deceased, which resulted in his death.

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vii. The accused had received very fatal blows on his

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head and the incident had happened only thereafter.

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viii. The accused was validly exercising his right of private defence.

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ix. The accused is entitled to get the benefit of doubt.

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Refuting the contentions of learned counsel for the appellant, learned Public Prosecutor submitted that the victim-

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deceased was attacked and brutally murdered in the presence of PW2, consequent to the registration of Ext.P2 agreement between PW1 on the one side and Abdul Sammad and Rughiya on the other side in respect of 33 rubber trees in Palamed Village. It is his contention that without any delay, the First Information Statement was given by PW1 wherein the details regarding the name of the assailant were stated. According to the learned Senior Public Prosecutor, the presence of the accused was established beyond doubt as PW2 clearly identified the accused. The learned Senior Public Prosecutor submitted that MO1 was recovered in accordance with law during the course of the investigation. It was further submitted that the accused brutally murdered the victim and the accused had stabbed the deceased with MO1 with an intention to murder him. The learned Senior Public Prosecutor further contended that the prosecution produced all the relevant documents including the documents, which are not favourable to the prosecution. The injuries sustained to the accused in the very same occurrence were explained by the prosecution and the right of private defence was not available to the accused, according to the learned Senior Public Prosecutor.

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PW13 Abdul Samad was employed in the Gulf. He came to Kerala after availing leave from his employer in the Gulf. He was the owner in possession of 33 rubber trees in Palamed Village. Since he was employed in the Gulf, his rubber trees were managed by his sister's husband-Khalid. He had entrusted the aforesaid 33 rubber trees for slaughter tapping to PW1 at the rate of Rs.3,000/- each per tree. In Ext.P2 agreement, PW1 and his sister Rughiya were parties. PW13 stated that on an earlier occasion, the accused had entered into a contract with his brother Saildali for tapping the rubber trees situated in the property of Saidali. Since it was very convenient for the accused to slaughter the trees of PW13 as well, he had made enquiries with his sister's husband Khalid as to whether the trees of PW13 would be given for slaughter tapping to him.

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PW1 Rasheed is one of the close friends of deceased Ibrahim. According to PW1, he was a broker engaged in executing agreement with others for tapping the rubber trees. He stated that nearly an year ago, the accused also assisted him as a sub-broker. PW1 stated that on 5.1.2011, he along with the deceased Ibrahim entered into a contract with PW13 for slaughter tapping of the 33

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rubber trees by way of Ext.P2 agreement. At about 3 pm on 5.1.2011, PW1, his wife Shakeela(CW12) and deceased Ibrahim together went to the rubber plantation and awaited the arrival of rubber tapper. After sometime, the accused came there and threatened that he would not permit them to tap the trees. According to him, the accused was on inimical terms with them on the simple reason that though he had made attempts to get the aforesaid trees for rubber tapping, he could not succeed in the attempt. After sometime, they had returned from the plantation. Around 4 p.m., on that day they all went to take tea at P.T.S Hotel. While so, they saw the accused along with three others in the hotel. On seeing PW1 and the deceased, the accused uttered that he would not permit anyone to tap the rubber trees. On seeing the rude behaviour of the accused, PW1 and the deceased had left the hotel. However, the accused followed him. On the way leading to Salafi Masjid, the accused took MO1, which was rapped in a newspaper and brandished towards the deceased. The deceased in an attempt to prevent the attack, picked up two wooden rafters from the way side and had beaten up the accused. The accused became violent and inflicted two stab injuries on the right abdomen and left

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underarm. As a result of the assault, there was profuse bleeding from the wounds and the injured Ibrahim collapsed to the ground. The accused thereafter ran away from the spot carrying MO1 along with him. Immediately after the incident, both the injured were taken to the Grace Hospital, Edakkara, and later they were referred to Government Hospital, Nilambur. According to PW1, when he reached the Government Hospital, Nilambur, he lost consciousness. He was taken to the Moulana Hospital, Perinthalmanna. When he became conscious, he was undergoing treatment at the Moulana Hospital, Perinthalmanna. While undergoing treatment at the Moulana Hospital, Perinthalmanna, PW1 lodged Ext.P1 FIS to the Police. PW1 identified the accused before court. He also identified MOs.2 to 4 articles and Ext.P2 agreement.

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PW2 is a taxi driver by profession. He knew the accused, PW1 and the deceased respectively. On 5.1.2011 at about 4 pm, he was on his way to Edakkara Petrol Pump to fill diesel in his vehicle. While so, he had seen the occurrence on a lane leading to Salafi Masjid. According to him, when he had reached the bus stop at Palamed, he had seen gathering of a few people and some others were

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rushing towards the aforesaid gathering. Hence he also rushed to the scene of occurrence, where he had seen the accused stabbing on the chest of the deceased with MO1 pointed chisel. Though PW1 made an attempt to avert the accused, he could not succeed in his attempt. The accused had suddenly taken out MO1 and stabbed on the chest of Ibrahim. Following this, PW1 tried to pull away the accused and while so, the accused stabbed PW1 on the right abdomen and left underarm. Thus, PW1 sustained serious injuries on the very same occurrence. Since the accused had sustained serious injuries on his head and blood was profusely oozing out, he ran away from the spot still holding on to the MO1. Ibrahim was then holding a wooden rafter and after walking a while, he collapsed to the ground. PW1 sat down near to Ibrahim, pressing his wounds and thereafter, PW4 came and took them to the hospital in an autorickshaw.

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PW4- the younger brother of PW1 had taken the injured to the hospital immediately after the occurrence. According to him, while he was awaiting an autorickshaw, about 300 metres away from the scene of occurrence, he had seen a group of people running towards the crime scene and he also followed them. He

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stated that when he reached the spot, he had seen deceased Ibrahim lying in a pool of blood and PW1 was also having bleeding injuries on his abdomen and underarm. Ibrahim and PW1 were taken to the Grace hospital, Edakkara wherein the deceased Ibrahim was declared as brought dead. Later, PW1 was taken to the Taluk Hospital, Nilambur from where he was taken to the Moulana Hospital, Perinthalmanna for better management. PW4 testified that while accompanying PW1 to the Taluk Hospital, Nilambur, PW1 told that the accused had stabbed both himself and the deceased Ibrahim.

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PW3 had seen the injured in a bleeding condition

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and also assisted PW4 to take the deceased Ibrahim and PW1 to the hospital. He supported the version of PW4.

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PW5 testified that on 5.1.2011 while she was standing in the courtyard of her house, near to her kitchen, she had seen the accused passing through the courtyard with bleeding injuries on his head. Though PW5 asked the accused as to what happened to him, the accused gestured as 'nothing' holding a mobile phone in his hand and answering a call. She further stated that on 6.1.2011, she had again seen the accused accompanied by Police Officials. While so,

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according to her, the accused had taken MO1 weapon from the bushes on the northeast of her house. Her husband was also present with her. PW5 identified MO1 chisel as the material object taken by the accused from the bushes when he came there along with the Police officials.

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PW6 is not a material witness. She stated that on 5.1.2011 at about 4.15 pm, while she was standing at the courtyard of her house, she had occasion to see the accused in an injured condition. According to her, as requested by the accused, she had given water and a piece of cloth to him.

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PW7 is the wife of PW1. She stated that on 5.1.2011, she along with her husband and deceased Ibrahim had been waiting for the arrival of the rubber tapper at the rubber plantation. While so, the accused came there in a motor cycle and threatened her husband with dire consequences. She is not an eye witness to the occurrence.

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PW8 was conducting a chicken stall near to the crime scene on the date of occurrence. On 5.1.2011 at about 4 pm. while he was dressing a chicken in his shop, he heard a hue and cry outside the shop. He rushed to the scene of occurrence and he had found PW1

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with bleeding injures and Ibrahim lying in a pool of blood. PW8 is not an eye witness to the incident.

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PW15 had conducted postmortem examination on the

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body of the deceased and issued Ext.P9 postmortem certificate noting the following injuries:-

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“1. Stellate shaped incised penetrating wound on left aspect of front of chest central square portion 0.4x0.4cm having tears at its four corners, 2.5cm outer to midline and 20cm below left collar bone. The tears were approximately at 2, 5, 8 & 11'o clock positions. Size of tear at 2'o clock position was 0.5cm and others 0.3cm each. The margins showed contusion and was 120cm above heel. The track of wound continued by cutting the cartilage of 6^th left rib, 3cm outer to midline 18cm below collar bone; then it penetrated the wall of right ventricle of heart after cutting the pericardium; further the interventricular septum was cut just underneath the non coronary cusp of Aorta and terminated as a nick at back wall of ascending aorta 2cm above its origin. Pericardium had 100ml blood and left chest cavity had 50ml blood. Total minimum depth of wound was 6cm. The wound was directed backwards & up with slightly obliquity to right.

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2.Rectangle shaped abrasion 0.8x0.4cm, obliquely

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placed with upper left end 2.5cm below the previous and 5'o clock position to it on front, left chest wall.

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3.Abrasion 0.6x0.4cm dorsum of distal joint of left ring finger.

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4.Abrasion 1x0.5cm on left palm at root of thenar eminence.

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5.Abrasion 3x1.5cm on left knee.

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6.Abrasion 1.5x0.2cm on left shin 18cm below knee.

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7. Spot abrasion on outer aspect of right knee.

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8.Abraded contusion 7x1-2cm involving back of right elbow and forearm extending to its inner aspect.”

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PW15 opined that Ibrahim died due to stab injuries on his chest involving heart. According to him, injury No.1, which was a stellate shape incised penetrating wound on the left aspect of front of chest and which penetrated upto the right ventricle of heart after cutting the pericardium, was the fatal injury, which caused the death of the victim.

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PW22 the investigating officer in this case conducted inquest on the body of the deceased on 6.1.2011 and prepared Ext.P8 inquest report. Column No.11 in Ext.P8 is pertaining to the apparent cause of death. It is stated therein that the accused died due to stab

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injuries sustained on his chest. Column No.12 is an explanation to column No.11. It is an additional question to supplement column No.11 -'If by violence, apparently why what weapons?'. The answer to column No.12 is that the witnesses present at the time of preparing the inquest stated that one Lalu inflicted stab injury on the deceased.

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Going by Ext.P8 inquest report, it is clear that right from the very beginning, the investigation has been proceeded as against the accused. In Ext.P8 inquest report, PW14 was the signatory. Ext.P8 further indicates that the deceased sustained a stab injury and on account of the same, he succumbed to the injuries. Pursuant to the inquest, PW15 the Doctor, who conducted the postmortem examination, reported that the deceased succumbed to the injuries on account of the stab injury sustained to him. Going by the facts, it Is clear that Ibrahim sustained a homicidal death.

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PW22 arrested the accused and recovered MOs.6 and 7 by way of Ext.P6 seizure mahazar. He also recovered MO1 material object. MO1 weapon was identified by PW1 and PW2 when they were examined before the court. PW19 stated that the accused had purchased MO1 from his shop on 5.1.2011 at about 9 am. PWs.5 and

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9 stated that the accused had shown MO1 while in custody and MO1 was recovered as pointed out by the accused. In Ext.P26 Chemical Examination Report, MOs.1 to 4 and Mos.6 and 7 articles were detected with human blood. When examined before court, PW22 stated that the accused also sustained injuries in the very same transaction and he underwent treatment at the hospital.

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DW1 examined the accused on 5.1.2011 at 5.10 pm at the Government Taluk Hospital, Nilambur and issued Ext.D4 wound certificate noting the following injuries (1 to 3):

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“(1) Deep lacerated wound of size about 4x1cm on centre of scalp.

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(2) Another lacerated wound of size 2x1 cm on Right Tempo region.

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(3) Another lacerated wound of size 1x1cm Back of scalp.”

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The history of injuries was narrated by the injured himself and according to the injured-accused, PW1- Rasheed and the deceased Ibrahim assaulted the injured with a rafter at Palemad Angadi. DW1 further stated that he had advised surgical consultation and the injured was referred to the Medical College Hospital, Kozhikode. DW1 stated that the injuries noted in Ext.D4 are found on the

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different parts of head. He further stated that the injuries could be caused as a result of at least three blows on his head. According to him, the locations of injuries are on the vital parts of the head and a blow with sufficient force could lead to the death of a person. He testified that he referred the patient to the Medical College Hospital to rule out any internal injury.

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During cross examination of PW22, certain facts are revealed. He had conducted investigation pertaining to Crime No.8/2011 of Edakkara Police Station,pursuant to the statement given by the accused. He admitted that the incident in Crime Nos.8/2011 and 7/2011 of Edakkara Police Station had occurred in the very same place. The scene of occurrence is one and the same. PW1, deceased Ibrahim and the accused sustained injuries in the very same transaction. Ext.P3 scene mahazar is common to both cases. PW22 stated that the rafter recovered as per Ext.P3 was pertaining to Crime No.8/2011. He further stated that Crime No.8/2011 was registered against PW1 and the deceased Ibrahim for assaulting the accused. On being asked in cross-examination, PW22 had not offered any reasonable explanation for not producing documents pertaining

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to Crime No.8/2011 in this case. So much so, he had not offered any explanation for not citing DW1 as a prosecution witness in this case. He admitted in cross-examination that before taking over investigation in this case, PW20 had supplied the details of the case to him. According to him, as directed by him, PW20 recorded the statement of PW1. At the same time, the Additional Sub Inspector of Police went to the Medical College Hospital and recorded the statement of the accused as de facto complainant in Crime No.8/2011. PW22 further stated that he went to the Government Taluk Hospital at Nilambur on the date of occurrence. According to him, police surveillance was arranged before shifting the accused to the Medical College Hospital for better management. He had admitted that he went to the place of occurrence after perusing the First Information Statements in the above cases. According to him, the exchange of words between the accused and PW1 has found a place in the First Information Statements given by the accused and PW1. However, he did not care to question the manager of PTS hotel. He had also not questioned the workers of the hotel.

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On cross-examination, PW1 admitted that he was an

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accused in Crime No.8/2011 of Edakkara Police Station. According to him, the said case was pending consideration before the very same court as S.C.No.424/2011. He admitted that the allegation against him is that he assaulted the accused on his head.

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PW2 in his cross-examination stated that he had seen blood oozing from the head of the accused immediately after the occurrence.

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Learned counsel for the appellant, during the course of his arguments, submitted that in respect of the very same incident, the Police registered Crime No.8/2011 of Edakkad Police Station which was pending consideration before the trial court as S.C.No.424/2011. The allegation levelled against PW1 is that during the course of the very same transaction, PW1 and deceased Ibrahim assaulted the accused and he had sustained grievous injuries. The date and time of occurrence are one and the same in the above cases. In Crime No.8/2011, the injured was taken to the hospital and the Doctor issued Ext.D1 wound certificate noting the injury sustained to the accused.

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It is contended by the learned counsel for the

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appellant that the appellant is innocent in this case and the prosecution version is false. As there was a case and counter case, as stated earlier, it is argued that the court was bound to ascertain the real aggressor in this case, which could be done only on the evidence on record. PW22, in his evidence, stated that the occurrence place in this case and the counter case is one and the same.

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Even though the accused squarely raised the plea of counter case and has also cross-examined the witnesses making suggestions about the version of the accused and how the fatal injury was caused to the accused, the learned Sessions Judge in his judgment has not considered the above aspects in the correct legal perspective. Regarding the facts of the counter case, the prosecution has not given a true picture. Firstly, the First Information Statement given by the accused in Crime No.8/2011 of Edakkad Police Station and the FIR in the said case have not been produced in this case. Secondly, the Doctor, who treated the accused and issued Ext.D1 wound certificate, was not examined before the court below. Ext.D1 wound certificate was not produced by the prosecution. Thirdly, copy of the final report prepared in S.C.No.424/2011 was not produced in

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this case and fourthly, PW1 had not adduced any evidence in his chief examination explaining the circumstances under which the accused also sustained injuries in the very same occurrence. When crossexamined, PW22 admitted that he did not examine the case records pertaining to the issuance of Ext.D1 in respect of the injuries sustained to the accused and the circumstances warranting the accused to be taken to the hospital for conducting treatment along with deceased Ibrahim.

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When the plea of right of self defence is taken, it is the duty of the prosecution to establish its case beyond reasonable shadow of doubt. If the evidence collected during investigation shows possibility of plea of private defence, the investigating officer is legally obliged to submit all the materials before the court. The object of investigation is only to find out the truth.

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On a perusal of the oral evidence let in by PW22, it is clear that the investigating agency failed to collect all available materials in relation to the commission of crime and the circumstances before court. In the case at hand, PW22 collected materials favourable to the prosecution and produced them before

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the court.

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It is often said, the law does not require a citizen to behave like a rank coward on any occasion and if he is attacked with dangerous weapons, he would be perfectly justified in the eye of law, if he holds his ground and delivers a counter attack, although in doing so, he may inflict an injury which may prove to be fatal. In the facts and circumstances of the case, we are of the view that the accused, who sustained injuries in the very same occurrence, at the hands of PW1 and deceased Ibrahim is legally entitled to set up his defence that he has been acting in exercise of his right of self defence.

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It is true that under Section 105 of the Evidence Act, the burden is on the accused to prove the existence of circumstances bringing the case under Section 100 of the IPC. However, the accused is entitled to claim the benefit of every reasonable doubt, when the accused offers a reasonable excuse on his conduct even though he cannot prove his assertion of self-defence. The learned counsel for the appellant contended that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension

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of death or grievous hurt. According to the learned counsel for the appellant,non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance.

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On going through Ext.D1 wound certificate, it is proved that the injuries sustained by the accused are not minor or superficial injuries. PW1 and PW22 stated in clear terms before court that during the course of the very same transaction in this case, the accused also sustained serious injuries.

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In Lakshmi Singh and Others v. State of Bihar [(1976)4 SCC 394], Amarjit Singh v. State of Haryana [(2009)16 SCC 649], State of U.P. v. Gajey Singh and others [JT 2009 (3) SC 1], the Apex Court held that the non-explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation, is a very important circumstance from which the court can draw the following inferences:-

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That the prosecution has suppressed the genesis and

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origin of occurrence and has thus not presented the true version.

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That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable.

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That in a case there is defence version, which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.

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In view of the above guidelines, we are of the view that the defence has to show that the defence plea is probable and it is not necessary upon the accused to prove its defence plea beyond doubt. It appears from the facts and circumstances of the case that the trial court was carried away on the belief that the defence was not true to facts. We are of the view that merely because the defence was not proved, the same cannot absolve the prosecution case from discharging its duty to prove its case.

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The question as to whether the accused was validly exercising his right of private defence could be gathered from the circumstances that the accused had suffered the blows initially, which could be evident from the evidence let in by PW8 and Ext.D2 contradiction marked through him. PW8 stated in cross-examination

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that he did not see a motor cycle lying on the ground immediately after the occurrence though he stated otherwise in his statement under Section 161 of Cr.P.C. Ext.D4 would indicate that the accused sustained deep lacerated wound of size about 4x1 cm on the centre of the scalp resulting in intracranial injury. History and alleged cause of injury stated in Ext.D4, is assault by PW1 and deceased Ibrahim with a rafter at Palamed Angadi at 4p.m. PW8 testified in crossexamination that the Police had recovered two rafters from the scene of occurrence by Ext.P3 mahazar in which he is a signatory. Hence the logical inference which could be drawn is that the rafters might have been used to assault the accused whereas the deceased sustained a stab injury to chest involving heart with MO1 pointed chisel. All other injuries are minor or superficial. Apparently, there is only one stab injury on the deceased, which is the cause of death. The appellant had adduced evidence through DW1 as regards to the injury sustained by him and Ext.D4 certificate produced and proved through him. On a careful reading of the evidence let in by PWs.1,2, and 8, it is clear that the appellant had received fatal blows on the head prior to the stabbing. Considering the nature of the stab injury sustained to

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the deceased, it is not possible for this Court to infer that the fatal blows on the head of the accused were inflicted even before stabbing the deceased. PWs.5 and 6 stated that there was profuse bleeding through the head and the face of the accused when they saw the accused immediately after the occurrence. Going by the evidence of PWs.1,2,5,6,8 and all other attending circumstances, it is clear that the accused had received fatal blows on his head and the incident in this case had happened only thereafter. In our view, since the injuries suffered on the side of the accused were injuries on the head, it can safely be said that the appellant had apprehension of grievous hurt. In our judgment, the appellant, who in the aforementioned facts and circumstances, only inflicted stab injury on the chest of the deceased, cannot be said to have exceeded the right of private defence. In view of the provisions contained in Section 97 of the Indian Penal Code, the appellant has the right of private defence subject to the restriction contained in Section 91 of the IPC to defend his own person. Section 100 of IPC make it clear that even if there is a reasonable apprehension of grievous hurt, the right of private defence of person extends to causing death. So long as the force used to prevent the

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aggression is not excessive, it would not be proper to hold that the right of private defence of the accused has been exceeded. The unexplained injuries on the appellant is an inbuilt guarantee to infer that the accused might have acted in exercise of right of private defence of his person.

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Learned Senior Public Prosecutor contended that the appellant is guilty and the trial court has therefore rightly convicted the accused. Relying on the Division Bench decision in Amit Guptha v. State of Chhattisgarh [2017 KHC 2924] of the Chhattisgarh High Court, it is contended that testimony of the injured witness is entitled to great weight and it is unlikely that they would spare the real culprit and implicate an innocent person though the evidence of the injured witness should not be mechanically accepted, it should be in consonance with probabilities. The contention is that testimony of an injured witness requires a higher degree of credibility and there have to be strong reasons to describe the same ( Pargan Singh v. State of Punjab and another [(2014)14 SCC 619]. The sum and substance of the contention is that the evidence of PW1 is reliable. On a consideration of the submission, we are persuaded to

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observe that the injury sustained by the appellant was on the region of his head. The facts and circumstances enumerated above would indicate that the aggressors in this case would have been the deceased and PW1. If that be so, the appellant had the right of private defence as against the deceased and PW1. Since the injuries are on the body of the accused, the only question which needs to be considered is the alleged exercise of right of private defence. When right of private defence is claimed, it is not correct on the part of the court to rely on the evidence of an injured witness and convict the accused accordingly. The prosecution cannot escape from the fact that PW1 sustained injuries on account of the overt act committed by the accused at the same place and at the same time when the occurrence has happened.

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In James Martin v. State of Kerala [(2004)2 SCC 203], the Apex Court held in paragraph 9 of the judgment as follows:-

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“The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non- explanation of the injuries

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sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. …..........”

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In this case, the prosecution had suppressed the injuries sustained to the accused. Non explanation of serious injuries sustained to the accused has cut the root of the prosecution case. Judged by the above standards, we are of the view that the acts done by the accused were in the reasonable limits of exercise of right of private defence and he was entitled to the protection afforded in law under Section 96 of the IPC.

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Accordingly, we set aside the conviction and sentence imposed by the trial court. The appeal is allowed. The appellant is set at liberty forthwith, if he is not required in connection with any other

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case.

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Sd/- A.HARIPRASAD, JUDGE Sd/- N.ANIL KUMAR, JUDGE

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MBS/

Lalu Joseph v. the State of Kerala

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Lalu Joseph v. the State of Kerala

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