(Prayer: Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the case in P.R.C.No.27 of 2011 on the file of the learned District Munsif-cum-Judicial Magistrate, Sriperumbudur and to quash the case in P.R.C.No.27 of 2011.)
ORDER
“When a woman is assaulted she may not stop to think in terms of himsa or ahimsa. Her primary duty is self-protection. She is at liberty to employ every method or means that come to her mind in order to defend her honour. God has given her nails and teeth. She must use them with all her strength and, if need be, die in the effort. The man or woman who has shed all fear of death will be able not only to protect himself or herself but others also through laying down his life”. This is what our father of the Nation, Mahathma Gandhiji, wrote in "Harijan". The case on hand is such a classic case where the accused an young college going girl of hardly 19 years of age, stabbed her father thrice on his stomach, in order to protect her modesty and life when the deceased exhibiting animal behaviour violently attempted to rape her and kill her at knife point. The lifeless body of the deceased was in a pool of blood. Unfortunately, the girl stands as an accused before the court facing prosecution for an offence under Section 304(ii) of IPC. Seeking to quash the entire proceeding, she is now before this Court with this original petition.
2. The facts of the case would be as follows:- The 2nd respondent is the de facto complainant. The deceased was the father of the petitioner and the 2nd respondent. They hail from Nagercoil in Kanyakumari District. The 2nd respondent is a graduate and during the relevant point of time, he was working in a private company at Chennai. The petitioner was doing her B.Sc., Computer Science course (II year) in St. Joseph College at Kovur. Their mother passed away four years before. The deceased father was a drunkard. According to the complaint itself, in inebriated condition, he used to exhibit animal behaviour on a few previous occasions. On 17.05.2011 by about 7.00 p.m. the 2nd respondent had gone to his company for work. The petitioner was alone at her home as the deceased also had gone out. Late in the evening, the deceased returned home fully drunk. At that time, the petitioner was sleeping in the hall of the house and the deceased had gone to his room. By about 1.00 a.m., while the petitioner was fast asleep, she felt that some body touched her breast. Realising something untoward, she woke up. She found her father, the deceased sitting by her side. He extended sexual overtures towards her and wanted her to submit to his lust. She was shocked by this unexpected event. She pleaded to him not to spoil her. The deceased took up a knife and attempted to stab her. This caused apprehension in the mind of the petitioner that the deceased would either kill her or rape her. Therefore, she took out a knife which was lying nearby and stabbed him thrice. He fell down and breathed his last. Immediately thereafter, she called her brother, the de facto complainant over phone and told him about the occurrence.
3. According to the 2nd respondent, at about 2.00 a.m. when he was in his company, he received a phone call from the petitioner. From other end, according to the 2nd respondent, the petitioner wept and narrated that with a view to protect her modesty and life, she had to kill her father by stabbing him thrice on his stomach.
4. Immediately, the 2nd respondent rushed to the place of occurrence. He found the deceased in a pool of blood. The petitioner was also at home and she was found weeping. The witnesses 2 to 4 viz., Manickam, Bastian Xavier and Anandan, who are either closely related or friendly towards the 2nd respondent, also rushed to the place of occurrence. When they enquired, they were also told by the petitioner that it was she who killed the deceased only with a view to save her life and modesty. She vividly narrated about the occurrence.
5. Thereafter, the 2nd respondent proceeded to the police station and preferred a complaint at about 4.00 a.m. upon which , the present case in Crime No.279 of 2011 came to be registered for an offence under Section 302 of IPC. Witness No.11, the then Inspector of Police, Mangadu, took up the case for investigation and proceeded to the place of occurrence. In the presence of two witnesses by name Sathishkumar and Premkumar, he prepared an observation mahazar and recovered the blood stained earth and other materials. On the same day, the investigating officer arrested the petitioner at 7.15 a.m. at her house in the presence of two other witnesses by name Dhanasekar and Ramesh. In their presence, the petitioner gave a long confession wherein she has vividly narrated about the above occurrence. To be precise, she has stated that her deceased father made an attempt to rape her at knife point and made an attempt to kill her with knife. Only with a view to save her modesty and life, according to the petitioner, she stabbed the deceased with the knife thrice on his stomach. Based on the said confession, the knife allegedly used by the petitioner was also recovered. Then, the body was sent for post-mortem. One Dr.Anbuselvam attached to Kilpauk Government Medical College Hospital, Chennai, conducted autopsy and gave opinion that the deceased died of injuries found on the stomach. He has opined that the injuries would have been caused by a weapon like knife seized during investigation. Thereafter, the Inspector of Police, has laid charge sheet against the petitioner under Section 304(ii) of IPC.
6. As I have already narrated above, as many as 11 witnesses have been cited including the Inspector of Police, who investigated the case. It is the said proceeding which the petitioner now seeks to quash.
7. I have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the 1st respondent and also perused the records carefully. The 2nd respondent, who is the de facto complainant in the case is present today in court. He has also stated that he has got no objection for quashing the entire criminal proceeding.
8. At the outset, I would like to state that when the materials placed before the Court, by way of police report, statement of witnesses and documents, do not make out an offence for any trial, then, it will not be lawful to allow the trial to go on as the same would only be a wasteful exercise. Apart from that making a woman like the petitioner to under go the ordeal of trial when obviously she has not committed any offence will be again a very serious human rights violation. Therefore, if the court is satisfied that no offence is committed by the petitioner, then, it is appropriate for this court to quash the proceedings.
9. In the case on hand, as I have already narrated, it is the positive case of the prosecution itself that the deceased father, who was supposed to protect the modesty of his daughter, exhibited animal behaviour and attempted to commit rape on her at knife point and also to kill her. This is not the case of the petitioner by way of defence, but it is the case of the prosecution itself. Even in the final report, the Inspector of Police has sated so only. If these materials are taken into account, I find that the petitioner has acted only in the exercise of right of private defence to save her modesty and life. In this regard I may refer to Section 100 of IPC which reads as follows:-
"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 :-
Firstly. - 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."
10. The case as projected by the prosecution clearly falls within the limb secondly of Section 100 of IPC. As per Section 96 of IPC, nothing is an offence which is done in exercise of right of private defence. In this case, as I have already stated, from the materials placed by the police, the positive case of the prosecution itself is that the petitioner exercised her right of private defence which may extend to the extent of causing death as defined in Section 100 of IPC. In this regard, I may refer to the Judgement in Darshan Singh v. State of Punjab, 2010 (2) SCC 333 wherein the Hon'ble Supreme Court, after making an elaborate analysis of the subject on right of private defence, has held that even if the accused does not plead self defence, it is open for the court to consider such a question if the same arises from the materials on record [vide Munshiram v. Delhi Administration, (1968) 2 SCR 455].
11. In the case on hand, though the occasion for the accused to plead self defence had not arisen because the trial has not yet commenced, from the materials on record , I find that the petitioner is entitled for the benefit of Sections 96 and 100 of IPC. It is also well settled that it is not possible for the accused to weigh the decree of his/her defence in golden scales. When a girl, like the petitioner, was put in such situation i.e, she was about to be raped by her father, she would have been, by all means, prompted only to save her modesty by using any weapon which immediately came to her hands. That is what the petitioner has done in this case. She has exactly performed what the Father of our Nation Mahatma Gandhiji said about self-protection of women about 80 years ago.
12. The domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendation has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. It is because of the above Conventions, to give effect to Articles 14, 15 and 21 of the Constitution of India, the Parliament has brought in a legislation in the form "The Protection of Women From Domestic Violence Act, 2005" to protect the victims of domestic violence. Despite the effective implementation of the said Act, domestic violence has not been totally eradicated.
13. In the case on hand, what was attempted to be done to the petitioner was an unbearable and intolerable violence. Thus, the petitioner was justified in killing her father or otherwise, she would have fallen a victim of rape or in the effort she would have lost her life. In view of the above, I am inclined to quash the proceedings.
14. Before parting with the case, I would like to say a few words about the investigating officer, who conducted the investigation in this case. To my knowledge, seldom an Investigating Officer files a negative report when he finds that the accused falls within any one of the general exceptions or special exceptions appended to Section 300 of IPC. It is very rare for a police officer to look into the exceptions and to file a final report at the end, for a lesser offence like the offence punishable under Section 304 of IPC. In this case, the police officer, who investigated the case, without changing the course of investigation from its right direction has honestly done the investigation and has ultimately filed the final report against the petitioner for a lesser offence punishable under Section 304 of IPC. Had he been given proper legal advice, I am sure that he would have even referred the case without filing the final report against the petitioner. Further, during the course of investigation, the petitioner need not have been arrested by the investigating officer. Going by the facts of the case, the age of the petitioner and all other attending circumstances, the investigating officer should have avoided to arrest her [vide Joginder Kumar vs State of UP, (1994) (1) L.W. (Crl.) 370].The Hon'ble Supreme Court has held that because it is lawful to arrest, it should not be resorted to in a mechanical fashion. In this case, the petitioner was in incarceration for 40 days for no offence committed by her at her teens. Fortunately, she has not discontinued her education. It is because of the fair investigation done in the instant case, at least, this court is now able to free the petitioner from all her agonies. For that the Mr.M.Azhagu, the Inspector of Police, who conducted the investigation deserves the appreciation of this Court. Accordingly, I record my appreciation to the investigating officer.
15. In the result, the criminal original petition is allowed; the case in P.R.C.No.27 of 2011, pending on the file of the learned Judicial Magistrate, Sriperumbudur, Kancheepuram District, is hereby quashed. The bail bond shall stand discharged. Consequently, connected MPs are closed.