R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE24H DAY OF JUNE, 2020 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MRS. JUSTICE M.G. UMA CRL. A. No.100058/2017 BETWEEN: KALLAPPA MALLESHI HALAB, AGE:
48. YEARS, OCC: AGRICULTURE, R/O: GODHOLLI, TAL: KHANAPUR, DIST: BELAGAVI, NOW IN CENTRAL PRISON, BELAGAVI (UNDERGOING LIFE IMPRISONMENT) - APPELLANT (BY SRI A.B. KONI, ADVOCATE) AND: THE STATE OF KARNATAKA BY NANDGAD POLICE STATION, DIST: BELAGAVI, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD.-. RESPONDENT (BY SRI V.M. BANAKAR, ADDL. S.P.P.) THIS CRIMINAL APPEAL IS FILED U/S374(2) OF CR.P.C. AGAINST THE JUDGMENT
OF CONVICTION DATED3003.2016 AND SENTENCE DATED0309.2016 PASSED BY THE LEARNED IX ADDL. DIST. & SESSIONS JUDGE, BELAGAVI IN S.C. No.273/2012 & ETC. :
2. : THIS CRIMINAL APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, B.A.PATIL,J., DELIVERED THE FOLLOWING: JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed in S.C. No.273/2012 dated 30.03.2016 and 03.09.2016 passed by the learned 9th Addl. Dist. & Sessions Judge, Belagavi.
2. We have heard the learned counsel for the appellant Sri A.B. Koni and the learned Addl. S.P.P. for the respondent-State Sri V.M.Banakar and perused the records including the trial Court records.
3. The complainant and the accused are own brothers and were having some landed properties. During the lifetime of their parents a panchayat was convened and divided the said properties equally among the complainant and :
3. : the accused. Thereafter the complainant purchased the land measuring 1 acre at Godholli village out of his own funds. It is alleged that the accused used to demand division in the said property and the complainant refused to give the share. It is alleged that, on the day of the alleged incident, the accused was in his landed property and the complainant, his son and wife were in their landed property. When the complainant was intending to pass through the land of the accused, the accused asked him to give property as demanded and the complainant abused him. At that time, the accused assaulted the complainant with the handle of the pick axe. Due to that, the complainant made a big hue and cry. By hearing the same, the deceased who was in the field, came running and by seeing the same, the wife of the accused made a warning call and the accused assaulted :
4. : the deceased with pick axe on his right side head and caused grievous injuries. Due to the said injuries, son of the complainant succumbed to the injuries. On the basis of the complaint, a case has been registered in Crime No.48/2012 and after investigation, charge sheet has been filed.
4. The prosecution in order to bring home the guilt of the accused, got examined 15 witnesses, got marked 18 documents and 12 material objects. Thereafter, the accused was examined by putting incriminating material as against him but he denied. The accused got himself examined as DW1 and has not got marked any documents. After hearing the learned counsel appearing for the parties, the trial Court found that the accused is guilty for the offences with which he has been charged and convicted him for the same. Challenging the legality and :
5. : correctness of the judgment of conviction, the accused is before this Court.
5. It is the submission of the learned counsel for the appellant-accused that on 24.02.2012 at about 11.30 AM when the accused was doing his work in the field, at that time PW1-complainant came towards him and there was some exchange of words with regard to property dispute. At that time, the accused gave a blow to the complainant-PW1. Upon the said blow, PW1 made hue and cry by saying that, “I will die”. By hearing the same, the deceased came running to the spot by holding a sickle, under the apprehension that the accused may take away the life of his father-PW1. At that time, wife of the accused gave a warning to the accused and the accused swayed the pick axe which was in his hand, which came in contact with the :
6. : deceased and as a result of the same, he suffered grievous injuries and died.
6. It is his further submission that the accused had no intention to kill, however, the incident took place only under the apprehension that son of the complainant, i.e., the deceased, may take away his life. Mere apprehension in the mind of the accused is enough to put “right of self defence” into operation. It is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. In order to substantiate the said fact, he has relied upon the decision of the Hon’ble Supreme Court in the case of Darshan Singh V. State of Punjab and Another reported in (2010) 2 SCC333 7. He has further submitted that, the accused himself has made a phone call to bring the :
7. : ambulance to see that the injured has to be treated immediately and his wife was also present along with the wife of the complainant. If he had any intention to cause death, he could have definitely fled away from the said place. It is PW1 who had came to the land of the accused and he is the aggressor. Along with him the deceased has come over to the land of the accused. In that light, the alleged incident has taken place and that the “self-defence or private defence” is the best remedy available to the accused.
8. It is his further submission that, before the complaint is lodged, the accused was already present in the premises of the Police Station and thereafter the complaint has been filed. If the conduct of the accused is taken into consideration, it shows that he was not having any intention to cause death of the deceased. :
8. : The evidence of the Doctor and the other witnesses clearly go to show that a single blow has been given to PW1 as well as to the deceased by the accused. By taking into consideration all the above facts learned counsel for the appellant prays that the appeal may be allowed and the accused may be acquitted by giving the benefit of self defence.
9. Per contra, learned Addl. SPP for the respondent-State vehemently argued and contended that the cross-examination and other material if it is seen, it clearly shows that the accused has not disputed the alleged incident and as such he is convicted. Even the prosecution has clearly established the fact that the accused has assaulted PW1-the complainant and the deceased, son of the complainant, who died because of the injuries. Even the Doctor who conducted autopsy over the body of the :
9. : deceased has clearly stated that the death is due to “coma as a result of head injury sustained”, which itself goes to show that the deceased died as a result of the assault made by the accused.
10. He further submitted that, Ex.P.15 clearly goes to show that PW1 has sustained as many as three injuries. There are eyewitnesses to the alleged incident who have also supported the case of the prosecution. He alternatively submitted that the accused has admitted the alleged occurrence of the incident in the field and he has acted in self-defence but the material placed on record would show that the accused has exceeded self-defence. That itself is sufficient to convict the accused for the offence punishable u/S302of IPC. The evidence and material placed on record, if it is perused, the accused has exceeded the self defence and if he had no intention, then under such :
10. : circumstances, the accused is liable to be convicted for the offence though not u/S302of IPC but u/S304Part II of IPC. In order to substantiate the said contention, he has relied upon the decision in the case of Manphool Singh and Others V. State of Haryana reported in AIR2018SC3995 The trial Court after considering all the evidence and material placed on record, has come to the right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal.
11. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records including the trial Court records.
12. According to the story of the prosecution, on 24.02.2012 the accused was cultivating his :
11. : part of the land, so also the complainant, his son and wife were cultivating the land in their possession. At about 11.30 AM when the complainant went to bring water, at that time, the accused asked to give the property and the complainant told that he has already given the property. By hearing his words, the accused became angry and assaulted the complainant with the handle of the pick axe on his left shoulder and he fell down, at that time his son Praveen (deceased) came and he was also assaulted.
13. In order to establish the case of the prosecution, the prosecution has relied upon the evidence of PW1, PW8 and PW9. PW1 in his evidence has reiterated the contents of the complaint and has also spoken with regard to the dispute of property between the accused and the complainant in respect of 1 acre of land :
12. : which has been purchased by the complainant. During the course of cross-examination, PW1 admitted that he himself went to the place where the accused was working and told him that he is not going to give any share in the property and if he wants, he can approach the Court of law. In his cross-examination he has admitted that after the assault he suffered injuries and he loudly screamed as “I will die”. By hearing the scream, his son and wife came there under the impression that the accused is going to take away the life of the complainant.
14. PW1 has further admitted that his son came from the land where he was cultivating. To the suggestion made by the accused that the wife of the accused alarmed the accused that his son is going to assault, he has answered that he has fallen on the ground and the same has not been heard the wife of the accused telling that :
13. : the son of the complainant is going to kill him. He also pleaded his ignorance that, with an intention to avoid the hit by the sickle, the accused had swayed the pick axe and at that time the axe came in contact with his son. He has shown his ignorance and said that he was not conscious at that time. PW1 has also admitted the fact that the said aspect has not been stated in the complaint. He has further admitted that he had seen the accused assaulting the deceased, except that, nothing has been elucidated from the mouth of this witness.
15. PW8 is the wife of the complainant. She has also reiterated the evidence of PW1 and nothing has been elucidated and all other suggestions have been denied. :
14. :
16. PW9 is the person who has seen the alleged incident. He has also reiterated the evidence of PW1. During the course of cross-examination when a suggestion has been made that at the time of the alleged incident the complainant has made a loud voice, he has stated that he was at a fair distance and as such he could not hear it. The other suggestions have been denied. He has also admitted the fact that wife of the accused was also there for a long time, except that, nothing has been elucidated from the mouth of this witness.
17. On perusal of the evidence of PW15 it reveals that he examined PW1 and issued wound certificate as per Ex.P.15 which indicates that, due to the assault he had sustained abrasion over the left clavicular region and swelling over the left nape of neck and body pain was there. The Doctor has opined that the said injuries are :
15. : simple in nature and caused by hard and blunt objects. When PW1-injured witness, PW8 and PW9 have also deposed that the accused, when the complainant was passing through his land, questioned about the property and at that time, there were exchange of words and the accused assaulted the complainant with handle of the pick axe thereby he has suffered injuries, this aspect has been proved by the prosecution.
18. Be that as it may, even during the course of cross-examination and arguments, the learned counsel for the appellant-accused has also not seriously disputed the said fact. In that light, we are of the considered opinion that the conviction and sentence passed by the learned Sessions Judge for the offences punishable u/s 324 and 504 of IPC is concerned, deserves to be confirmed and accordingly it is confirmed. :
16. :
19. It is the specific contention of the learned counsel for the appellant-accused that, the accused in his attempt to self defence, to save himself, the alleged incident has taken place and he was not having any intention to cause death of the deceased. It is not in dispute that the accused and his wife were also in the field and his brother, the complainant, his wife and son, the deceased were also there in the adjoining field. It is not in dispute that the complainant was passing through in the land of the accused and when the accused questioned, he refused to give the share in one acre of land. In that context, the incident has taken place. The first incident is insofar as the assault said to have been committed to PW1 and there is sufficient material in this behalf and we have already held that the accused is liable to be convicted for the said offences. Thereafter, the :
17. : second incident took place when the complainant had fallen on the ground by making a big voice that “I will die”. At that time, it is the deceased, who by holding the sickle came and the wife of the accused gave alarm that the deceased is going to kill. Immediately the accused swayed the pick axe and the same has been came in contact with the head and caused injuries.
20. Even as could be seen from the Postmortem report, the injuries which have been suffered by the deceased are concerned, multiple abrasion over the forehead, left eye and multiple abrasion over the left shoulder and left hand and abrasion was present red in colour. From the evidence it indicates that single blow has been given by the accused. :
18. :
21. It is the contention of the learned counsel for the appellant-accused that in exercise of self defence, the alleged incident took place without intention.
22. What are the principles which are to be followed regarding the “right of private defence” has been discussed by the Apex Court in the case of Darshan Singh stated supra, wherein at Head notes it is laid down as under: (i) Self preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self-defence into :
19. : operation. In other words, it is not necessary that there should be an actual commissionof the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to except a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. :
20. : (ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.-. - - 23. On going through the above said decision of the Apex Court wherein it has been observed that, mere apprehension is enough to put right of self defence into operation and it is not necessary that there should be actual commission of the offence in order to give rise to the right of private defence. This proposition of law has been laid down at paragraph Nos. 22, 31 and 32 of the decision quoted supra, which reads as under:
22. Section 100 of the Indian Penal Code is extracted as under: :
21. :
"100. When the right of private defence of the body extends to causing death.-.- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: -- First.-.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.-.- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.-.- An assault with the intention of committing rape; Fourthly.-.- An assault with the intention of gratifying unnatural lust; Fifthly.-.- An assault with the intention of kidnapping or abducting; Sixthly.-.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is :
22. : shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him.
31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.
32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society, and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. :
23. : The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.-. - - 24. Keeping in view the ratio laid down in the above decision and on perusal of the records it goes without saying that there was a family dispute in respect of one acre of land which is said to have been purchased by PW1. PW1 in his cross-examination has admitted that he himself has gone to the place where the accused was working. He has also further admitted that, when the accused assaulted him with pick axe, he cried by saying that “I will die” and the accused is going to take away his life. He further deposed that, he cried and as such the signal must go to his wife and son. If that fact is taken into consideration with reference to the :
24. : evidence which has been led by the accused as DW1 that the case has been specifically made out by the accused-appellant to the effect that when he assaulted PW1-the complainant, at that time he made a big voice. By hearing the same, son of the complainant came by holding the sickle and he was about to assault with the sickle and at that time it is the wife of the accused who gave warning and immediately the accused in order to save himself from the attack from the deceased with the sickle, swayed the pick axe which he was holding and the deceased has suffered single blow and died on the spot. Even the wife of the accused was also present at the place of the incident and accused has also tried to send the injured in an ambulance to the hospital and even before filing of the complaint, he was present in the Police Station. If all these conduct which has been produced before the :
25. : Court, if looked into it shows that the accused under the apprehension that he is going to be assaulted by the son of the complainant, if he opted to exercise his right of defence, under such circumstances, it is not considered to be an offence and the protection can be given to the accused u/Ss 96, 97 and 100 of the IPC.
25. We are conscious of the fact that, if the accused exceeds the limits of self defence, under such circumstances, the benefit will not be extended as held in the case of Manphool Singh and others V. State of Haryana stated supra, as rightly pointed by the learned Addl. SPP. But it is also well settled proposition of law that when the accused assaulted and the evidence of PW1 shows that he with an intention to alert his wife and son cried loudly and hearing hue and cry of the complainant, his son came aggressively by holding the sickle. Under such a :
26. : situation, it may not be said that the accused except his right of private defence as it was not possible for him to weigh in a golden scale in the heat of moment. Whether he is going to be assaulted with sickle or not, is a question of fact. It is only a subjective assessment by the accused at the spur of moment. Even as held in the decision quoted supra, mere apprehension itself is sufficient. If there is a reasonable apprehension that the deceased is likely to assault him and take away his life, under such circumstances, if the accused exercises right of private defence, it will not be with any intention or motive. In that light, the accused has made out a case so as to interfere with the judgment of the trial Court.
26. We have carefully and cautiously gone through the judgment of the trial Court. Though elaborately the trial Court has discussed the :
27. : evidence but while weighing the evidence it has put the evidence in golden scale and that scale has not been tilted in favour of the accused, though there is material to bring the act of the accused under the private defence. In that light, we are of the considered opinion that the appeal deserves to be allowed in part.
27. We appreciate the able assistance of Sri.A.B.Koni, learned counsel for the appellant- accused and Sri V.M. Banakar, learned Addl. SPP for the respondent-State, in disposal of this case. For the foregoing reasons, we pass the following order. ORDER
The appeal is allowed in part. The judgment of conviction and order of sentence dated 30.03.2016 passed by the learned IX Addl. District & Sessions Judge, Belagavi is confirmed :
28. : insofar as it relates to conviction of the appellant-accused for the offences punishable u/Ss 324 and 504 of IPC is concerned. Insofar as conviction of the appellant-accused for the offence u/S302of IPC is hereby set aside. At this juncture, learned counsel for the appellant submitted that, the accused was in custody for a period of six years as under trial prisoner. In that light, he may be extended the benefit of set off u/S428of Cr.P.C. The trial Court convicted the accused for a period of three months or to pay a fine of Rs.1,000/- for the offence punishable u/S504of IPC and convicted for a period of one year and to pay a fine of Rs.4,000/- with default clause. In that light, if the accused is convicted for the period which he had undergone as under trial prisoner, would meet the ends of justice. Ordered accordingly. :
29. : Bail bonds and surety bonds of the appellant-accused stand cancelled. The trial Court is directed to refund the fine amount of Rs.10,000/- imposed for the offence u/S302of IPC to the appellant-accused on proper identification and acknowledgement. SD JUDGE SD JUDGE bvv