in the high court of karnataka at bangalore...
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 04TH DAY OF JUNE 2014
PRESENT
THE HON’BLE MR.JUSTICE MOHAN M SHANTANAGOUDAR
AND
THE HON’BLE MR.JUSTICE C.R.KUMARASWAMY
CRIMINAL APPEAL NO. 105 OF 2009 (A)
BETWEEN:
STATE OF KARNATAKA
BY THYAMAGONDLU P.S. ... APPELLANT
(BY SRI.B.VISWESHWARAIAH, HCGP) AND:
SESSION CASE NO.41/2004 1. VENKATARAMAIAH (A.2) S/O GOVINDAPPA AGED ABOUT 20 YEARS AGRICULTURIST
2. NANDAGOPALA (A.3) S/O GOVINDAPPA AGED ABOUT 36 YEARS AGRICULTURIST
3. VENKATA GIRIYAPPA (A.5) S/O M.VENKATARAMAIAH AGED ABOUT 65 YEARS AGRICULTURIST (ACCUSED No.4 IS DEAD)
R
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ALL ARE R/O GHORAGHATTA VILLAGE, THYAMAGONDLU HOBLI NELAMANGALA TALUK
2. SESSIONS CASE NO.3/2006 1. KRISHNAMURTHY (A.1) S/O GOVINDAPPA AGED ABOUT 27 YEARS TEACHER, GORGHATTA
VILLAGE THYAMAGONDLU HOBLI NELAMANGALA TALUK ...RESPONDENTS (BY SRI.H.C.HANUMAIAH, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378 (1) & (3) CR.P.C BY THE STATE P.P. FOR
THE STATE PRAYING THAT THIS HON’BLE COURT
MAY BE PLEASED TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL PASSED BY THE PRL.SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE IN
SESSIONS CASE NO.41/2004 & 3/06 DATED
11.09.2008. THEREBY ACQUITTING THE
RESPONDENTS-ACCUSED FOR THE OFFENCES
P/U/S 143, 147, 302,307, 114 R/W SEC.149 OF IPC.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, MOHAN M. SHANTANAGOUDAR J., DELIVERED
THE FOLLOWING:-
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JUDGMENT
This appeal is preferred by the State against the
judgment and order of acquittal passed by the Prl.
Sessions Judge, Bangalore Rural District, Bangalore in
Sessions Case Nos.41/2004 and 3/2006, dated:
11.09.2008.
2. All the five accused/respondents were
charged for the offences punishable under Section 147
read with 149, 302 read with 149, 307 read with 149,
114 read with 149 of IPC.
3. Case of the prosecution in brief is that,
deceased is the elder brother of accused Nos.1 to 3;
accused No.4 is the father of the deceased and accused
Nos.1 to 3; accused No.5 is the younger brother of the
accused No.4 i.e., uncle of the deceased and accused
Nos.1 to 3. Partition had taken place between the family
members. Agricultural lands were being enjoyed by the
parties separately as per the partition. However, one
jackfruit tree and a bore well was kept joint among the
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brothers and the same are to be enjoyed by the brothers
jointly.
In the evening of 04.05.2003, accused No.1
scolded the wife of the deceased on the ground that the
son of the deceased had plucked the raw jackfruit from
the jackfruit trees; accused No.1 was of the view that
the raw jackfruit cannot be used by anybody. At that
point of time, the deceased was not in station, he had
gone to Bangalore for attending certain
Samavesha/Rally. He came to the village at about 10
PM and went to his house; he was informed by his wife
about the incident of scolding by accused No.1 in the
matter of plucking the raw jackfruit; thereafter, the
deceased went to the temple where there was scuffle
between the deceased and accused Nos. 1 and 2 at
about 10 PM or so; the deceased returned to the house;
thereafter, all the accused came in a group armed with
deadly weapons like chopper and knife, entered the
house of the deceased and assaulted him repeatedly;
the complaint discloses the specific overtacts against
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the accused Nos. 1 to 3; however, accused Nos.4 and 5
instigated the accused Nos.1 to 3 by remaining behind
the scene; because of the injuries sustained, the
deceased died on the spot; when his wife (PW1) tried to
intervene, she was also assaulted by the accused Nos.1
to 3 with chopper, consequently, she also sustained
grievous injuries; she requested persons who had come
to the village for wedding ceremony for medical help and
two of them took her to her parent’s place namely
Somashettyhalli, Gouribidanur Taluk, on a two wheeler;
her father namely Thimmaiah (PW13) took her to Govt.
Hospital, Gouribidanur for treatment; while she was
taking treatment at Gouribidanur Hospital, Sub-
Inspector of Police (PW26) came to the hospital and
recorded the statement of PW1 and registered a case in
Crime No. 37/2003 in Thyamagondlu Police Station.
After completion of the investigation, charge sheet came
to be filed for the aforementioned offences against all
the five accused.
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4. During the course of trial, the prosecution
in all, examined 26 witnesses and got marked 27
exhibits and 19 MOs. On behalf of the defence, two
witnesses were examined including accused No.1 and
got marked 5 exhibits. The trial Court on evaluation of
materials on record and after hearing, concluded that
the prosecution has not proved its case beyond
reasonable doubt. Consequently, acquitted the accused.
Being aggrieved by the judgment of the trial Court, the
State has preferred this appeal.
5. PW1 is the complainant (wife of the
deceased), she is an injured eye-witness; her complaint
is at Ex.P1 and the same was registered at about 10 AM
on 05.05.2003. At the time of recording of the
complaint, PW24-doctor was present. As
aforementioned, PW1 was taken to Govt. Hospital,
Gouribidanur, wherein PW1 took treatment as an
inpatient.
PW2 is the son of the deceased and he is stated to
be an eye-witness.
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PW3 is the mother of PW1, who took PW1 to the
hospital after PW1 came to her parental house on the
early hours of 05.05.2003.
PWs4 and 5 have turned hostile and their evidence
is of no use either to the case of the prosecution or to
the defence.
PW6-Hanumantharayappa speaks about the
incident which has taken place at Anjaneya Temple at
about 10 PM on 04.05.2003, wherein the deceased had
come with chopper with an intention to assault the
accused No.1; at that point of time, accused No.2
intervened and he sustained certain injuries.
PW7 is the grand mother of PW1, she is stated to
be an eye-witness.
PW8 is the Archaka of the temple; the said day,
i.e., 04.05.2003, being the day of Basava Jayanthi,
Harikatha was being delivered and marriage of certain
person was also arranged in the temple, more than 200
persons had gathered at about 10 PM; he speaks about
the incident of 10 PM which had happened at the
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temple and the injuries sustained by the accused No.2
by the assault of the deceased with chopper. Chopper
was snatched from the hands of the deceased and the
same was handed over to the PW8; PW8 in turn handed
over the same to the Investigating Officer during the
course of investigation.
PW9-Govindaiah, is the witness for inquest
mahazar as well as the scene of the offence mahazar
i.e., Exs.P7 and P8 respectively.
PW10- K. P. Rajashekaraiah, is the Police
constable; he carried the articles to the Forensic Science
Laboratory.
PWs11 and 12 are the Police Constables who
participated in the investigation process by carrying the
articles to the Forensic Science Laboratory and by
apprehending the accused Nos.4 and 5.
PW13-Thimmaiah is the father of PW1; he took
PW1 to the Govt. Hospital, Gouribidanur in the early
morning of 05.05.2003 for treatment.
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PW14-Dr. Savitha C.S., conducted post mortem
examination over the dead body of Srinivasa Murthy.
Post mortem report is at Ex.P10.
PW15 is the ASI, who apprehended the accused
Nos. 2 to 4 on 15.05.2003.
PW16 is the doctor working in Govt. Hospital,
Thyamagondlu; she examined and treated the PW1
during the mid night intervening between 04.05.2003
and 05.05.2003 at the first instance; thereafter, PW1
was taken to government hospital, Gouribidanur.
Ex.P12 is the wound certificate issued by PW16.
PW17 is the doctor, attached in KC General
Hospital, Bangalore; he examined and treated accused
Nos.1 and 2; MLC extracts are at Exs.P13 and 14.
PW18-K. Chandradhara, is the Assistant
Engineer; he drew a sketch of the scene of the offence as
per Ex.P15.
PW19-Narasaih is the Head Constable, who was
watching the dead body.
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PW20-S. Hanumaiah is the Police Constable who
carried the FIR to the jurisdictional Court.
PWs21, 22 and 23 are the witnesses for the
seizure mahazar at Ex.P17; they have turned hostile.
PW24-Dr. D. Mallikarjunappa is the doctor who
examined the PW1 and issued the wound certificate as
per Ex.P19.
PW25-D. Palakshaiah is the Investigating Officer,
who completed the investigation and laid the charge
sheet.
PW26-Shankarachar is the Sub-Inspector of
Police; he registered the case in Crime No.37/2003
based on the complaint lodged by PW1 in Govt.
Hospital, Gouribidanur; he is a Police Inspector
attached in Thyamagondlu Police Station. It is relevant
to note that Thyamagondlu Police Station is adjoining to
the Thyamagondlu Govt. Hospital. However, no
complaint came to be lodged by PW1 or anybody before
Thyamagondlu Police Station during the mid-night
intervening between 04.05.2003 and 05.05.2003.
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6. On behalf of the defence, DWs1 and 2
examined. DW1 is the accused himself; according to
him, it was the deceased, who was the aggressor and
came fully prepared with knife and chopper to take
away the life of the accused No.1; during that process,
PW1 intervened and accidently, blow of the deceased
which was intended to be on accused No.1, fell on PW1;
in order to save his life, he snatched the knife from the
hands of the deceased and stabbed. In effect, the
version of the DW1 is that , he has exercised the right of
private defence and that he has not exceeded while
exercising the right of private defence.
DW2 is the independent eye-witness; his version is
also on par with the evidence of DW1. It is relevant to
note that PW2 (son of the deceased) admits the presence
of the DW.2 at the scene of the incident.
7. PWs1, 2 and 7 are stated to be the eye-
witnesses to the incident in question. We find, after
meticulous perusal of the materials on record, that the
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presence of PWs2 and 7 near the scene is highly
doubtful. However, presence of PW1 cannot be doubted
at all, in as much as, she has sustained injury in the
scuffle.
8. PW1 has lodged the complaint as per Ex.P1.
The complaint discloses that the incident has occurred
within the house of the deceased; the complaint further
discloses that all the accused Nos.1 to 3 entered the
house of the deceased with deadly weapons like chopper
and knife and assaulted the deceased mercilessly,
consequent upon which, the deceased died on the spot.
But in the evidence, PW1 has been given go by to such
version relating to the place of the incident. She has
deposed that the incident has occurred outside the
house that all the accused assaulted the deceased with
the deadly weapons like chopper and knife; PW1 (wife of
the deceased) tried to intervene and she was also
assaulted by accused Nos.1 to 3. Because of such
assault, she also sustained certain injuries and
immediately, in the midnight intervening between
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04.05.2003 and 05.05.2003, she rushed to the
Thyamagondlu Govt. Hospital, at the first instance, with
the help of two persons who had come to the village for
attending the marriage ceremony; thereafter, she was
taken to her parental house namely Somashettyhalli,
Gouribidanur Taluk, on the two wheeler, wherein her
parents i.e., PWs13 and PW3 took her to the
Gouribidanur Govt. hospital in the early hours of
05.05.2003. At about 10.15 AM, on 05.05.2003, PW26-
Sub-Inspector of Police came to the said hospital and
recorded the statement given by the PW1; based on her
statement, the crime was registered.
But the evidence of the Investigation Officer as
well as Sub-Inspector of Police, i.e., PWs25 and PW26
totally destroyed the case of the prosecution. PW25 in
his examination-in-chief itself has deposed that on
05.05.2003 at about 1 AM i.e., early hours of
05.05.2003, PW26-Sub-Inspector of Police asked the
Inspector (PW25) to come to Gorgatta village, where the
incident has taken place. Immediately, thereafter both
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of them went to scene of offence and learnt that the wife
of the deceased is also injured and her whereabouts was
not known; PW5 directed PW26 to find out PW1 and to
record her statement; HC 486 was directed to guard the
dead body of Srinivasamurthy; thereafter, PW25 got
wireless message that PW1 is taking treatment at
Gouribidanur Govt. Hospital, at about 7 AM and
consequently, PW26 was sent to record her statement to
the hospital. Thus, it is clear that information was
already received at about 1 AM on 05.05.2003 by PW25
and PW26, who are the responsible Police Officers.
Curiously, no attempt was made to register the crime at
1 A.M. on 05.05.2003.
In the cross-examination, PW25 further admits
that at about 00-30 hours i.e., midnight intervening
between 04-05-2003 and 05-05-2003, he received the
information regarding the incident and at about 1-15 or
1-30 AM on 05-05-2003, he reached Gorgatta village;
there were persons present in the spot; he questioned
the people as to what has happened and he came to
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know that it was the quarrel between the brothers;
however, the details were not specified. Thus it is clear
that PW25 came to the spot at about 1 AM itself on
05.05.2003 and started the investigation into the
matter. He had even directed the Head Constable to
guard the dead body. Thus, investigation has virtually
started at about 1 AM itself on 05.05.2003. Though
PW25 enquired with various persons who were standing
at the scene of the offence; according to him, he did not
try to record their statements and register the case. He
would have suo-moto registered the case also, but such
procedure is not adopted.
9. The evidence of PW25 that he had reached
the spot at about 1 AM on being informed by Sub-
Inspector of Police (PW 26) is further corroborated by
the evidence of PW26/Sub-Inspector of Police. PW26-
Sub-Inspector of Police admits in his cross-examination
that he has informed to PW25 at about 1 AM on 05-05-
2003 about murder at Gorgatta Village. He visited the
scene of the offence at Gorgatta village after sending a
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message to the Inspector of Police. Body was lying on
the road from Gorgatta village to the house of
Govindappa in a halla i.e., adjoining the pathway
leading to the house of Govindappa. When he reached
the spot, there was no person present near the dead
body. According to him, after staying for 20 minutes
near the dead body, he went to the village and it was
about 3-30 AM; he enquired with the villagers about the
incident but he did not remember the names of those
witnesses. He did not record the statement of any of the
witnesses and he was searching for the complainant as
he wanted to receive the complaint from PW1. From the
aforementioned, it is amply clear that the earlier
information as received by PWs 25 and 26, on
05-05-2003 at about 1 AM is suppressed by the Police.
There is no reason as to why the police did not record
statement of any of the persons who were present on
the spot at 1AM and register the case. Without even
registering the case, strongly the investigation has been
started by PWs 25 and 26.
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Wherefore, we are of the view that origin and
genesis of the crime is suppressed by the prosecution.
Since the origin and genesis of the crime is shrouded
with mystery, it may be difficult for the Court to believe
the version of the prosecution including the version of
the eye-witnesses.
10. At this stage itself, we may refer to the
evidence of DWs1 and 2 on the question of incident.
DW2 is the independent eye-witness to the incident and
he is a tailor by profession. He is neither foe nor friend
of the accused or deceased. He has deposed that at
about 10 PM, he along with his father and very many
people had gathered in the temple to hear Harikatha; at
that point of time, they heard cries of the deceased-
Srinivasamurthy calling accused No.1 for 5-6 times in a
high tone; accused No.1 who was hearing Harikatha got
up and responded to his brother’s voice stating that he
was there itself. Then deceased scolded the accused
No.1 with filthy language. Immediately, thereafter, the
deceased removed the chopper from the backside of his
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shirt and lifted right hand along with chopper aiming to
kill accused No.1. Then, the accused No.2 raised his
right hand and stopped the intended blow by
obstructing the intended blow, consequent upon which,
the accused No.2 sustained certain injuries. All the
persons who had gathered, caught hold of the deceased,
snatched the chopper and gave it to PW8 (Archaka);
thereafter, the accused Nos.1 and 2 started to go to
their house. At that point of time, the deceased once
again took a brick from heap of bricks and threw it
against accused No.1, which fell on the leg of the
accused No.1. When the accused No.1 was trying to get
up, another brick piece was thrown by the deceased and
the brick hit accused No.1 and injured his left part of
the ear; the ear of accused No.1 started bleeding; when
the people started gathering, the deceased ran away
from the said spot, while going, the deceased proclaimed
that he will not leave his brothers (accused Nos. 1 and
2); immediately, thereafter, the deceased went to the
house and brought a knife. Along with the deceased, his
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wife came behind him and she started to request her
husband that he should not assault anybody; however,
the deceased tried to give a blow with knife on to the
stomach of the accused No.1; in this process, PW1 came
in between, hence, the blow fell on the back of PW1 and
immediately thereafter, accused No.2 caught hold of the
deceased. The accused No.1 snatched the knife from the
deceased. But, the deceased once again ran to his house
and brought the chopper from his house; when the
deceased wanted to take away the life of the accused
No.1, the accused No.1 using the knife snatched by him
earlier gave 2-3 blows on the stomach of the deceased;
thereafter, accused Nos.1 and 2 went away from the
spot, consequent upon which the deceased died on the
spot. DW2 has further deposed that he went to the
house of Somanna and informed the police over phone
as to how and where the incident has taken place;
immediately, at about 1.30 or 2.00 AM, the police
reached there. PWs25 and 26 came to the spot and they
also asked about the incident. DW2 gave entire
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happenings to PWs25 and 26. According to DW2, his
statement was recorded and signature was also taken;
however, no such signed statement is forthcoming on
record. DW.1 has deposed on par with the evidence of
DW2, relating to the incidents.
11. From the aforementioned facts, it is clear
that the Police knew very well about the incident at
about 1 AM; despite the same, no crime was registered
till PW1 gave her statement on 05.05.2003 at about
10-15 AM in the Government Hospital, Gouribidanur.
12. There was no valid reason as to why the
independent senior Police officials like PW.25 and
PW.26 should suppress such important material which
was in their knowledge; they would have immediately
registered the complaint at 1 a.m. itself. Per contra,
they have proceeded to investigate the matter without
registering the crime. Therefore, the defence counsel is
justified in arguing that the statement as given by the
DW2 is deliberately suppressed by the police. In view of
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the same, as aforementioned, we are of the clear view
that the origin and genesis of the case of the
prosecution is shrouded with mystery and is
deliberately suppressed by the police.
13. Though PW-2 (Son of deceased) claims to be
the eye-witness to the incident in question, his
statement is not recorded by the Police during night
intervening between 4.5.2003 and 5.5.2003 despite the
fact that he was present in the village that too in his
house all through the night. The Investigating Officer,
as aforementioned has visited the village and the house
of PW-1 to record her statement during the midnight
intervening between 4.5.2003 and 5.5.2003 and verified
about the incident from all the villagers. There is no
reason as to why the Investigating Officer has not
recorded the statement of PW-2, if PW-2 was to be the
real eye-witness to the incident. His statement was
recorded by the Police only on 6.6.2003 i.e., after the
lapse of about one month of the incident. Absolutely no
valid reason or explanation is forthcoming as to why his
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statement is recorded belatedly. Moreover the conduct
of PW-2 in keeping quite in the house also appears to be
highly unnatural.
The evidence of PW-2 reveals that when he was
sleeping in the house in the night of 4.5.2003, he heard
the cries of his mother as ‘Bidro Bidro’ at about 11 p.m.;
then when he came out of the house, he saw Accused
No.1 dragging his mother. PW-2 has further deposed
that Accused No.1 gave a blow and the said blow fell on
the back of PW-1. He has not witnessed the assault
on his father. He has come to the spot subsequent to
the incident of assault on the deceased. He has seen
only the assault on his mother. According to PW-1, the
assault on PW-1 is simultaneous with the assault on
the deceased. If PW-2 were to be the eye witness to
the incident of assault on PW-1, he would not have
missed to witness the assault on the deceased. Thus it
appears PW-2 is the got up witness.
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14. So also we do not find any ground to believe
the evidence of PW-7 who was aged about 80 years.
She is the grand-mother of PW-1. According to her, she
has seen Accused No.5 instigating the other accused
and Accused Nos.1 to 3 assaulting the deceased with
the weapons. At that point of time, she was standing
near the bushes/fencing and she did not raise hue and
cry. The incident had occurred in between the temple
and the house of the deceased as well as the accused.
More than 200 people had gathered in the temple for
hearing Harikatha and for attending the marriage
conducted in the temple. She did not raise hue and cry
to drag the attention of the public. None of the
independent witnesses are examined. Per contra, the
independent witness DW-2 has deposed against the
case of the prosecution.
The defence version is supported by the
prosecution witnesses, even in examination-in-chief.
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15. PW.6 in the examination-in-chief, has
deposed that he heard galata from the temple and
hence he went near the temple; he saw deceased,
accused Nos.1 and 2 and they were quarrelling; the
deceased was asking accused No.1 as to why accused
No.1 scolded PW.1; accused No.1 replied that he did not
scold; however, he stated that the son of the deceased
has removed the jackfruit. PW.6 admitted in the
examination-in-chief itself that the deceased removed
chopper from his shirt and that at that point of time
accused No.2 tried to avoid the attack by the deceased;
in the said process, accused No.2 received injury on his
little finger of the right hand and parietal region, blood
starting oozing; then PW.6, Narasappa, Bhadrachar and
Accused No.2 caught the chopper possessed by
deceased tightly and snatched the same from the
deceased and gave it to Archaka (PW.8).
In the cross-examination, PW.6 further admitted
that at about 2.00 a.m. Thyamagondalu police reached
the place where the dead body had fallen; the police
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verified and enquired with PW.6 and others who had
gathered there namely, Gurumurthy and Narasappa
and recorded their statements. After recording the
statements, the police went away from the said place at
3.30 a.m. The police have also recorded the features of
the land where the dead body was found; there were
blood stained knife and a chopper; the police carried the
said chopper and knife along with them.
From the aforementioned deposition of PW.6, it is
amply clear that the deceased started quarrelling and
he was the aggressor. He tried to take away the life of
accused No.1 in the temple at 9.00 p.m. on the date of
incident. However, accused No.1 was rescued by PW.6,
Accused No.2, Narasappa and Bhadrachar who had
gathered in the temple. The chopper was snatched from
the deceased by PWs.2 and 6 and was handed over to
PW.8-Archaka. It is also amply clear from the evidence
of PW.6 that the police had come in the midnight
intervening between 4.5.2003 and 5.5.2003 (i.e., about
2.00 a.m. on 5.5.2003), enquired with the people who
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had gathered there and recorded their statements; the
police have also recorded the features of the land where
the dead body was found and took away chopper and
knife along with them. Hence, the investigation had
already started in the midnight intervening 4.5.2003
and 5.5.2003 itself, i.e., even prior to Ex.P1-complaint
came to be recorded. These facts fully support the
defence version. Therefore, we are of the opinion that
the version of the defence is believable, inasmuch as the
defence was fully supported by the prosecution witness
themselves.
16. PW.8, the Archaka of the temple also has
deposed that when the pooja was being performed in the
temple at about 10 p.m., there was hue and cry and at
that point of time, the chopper which was in the hand of
the deceased was snatched by the people who had
gathered there and was given to PW.8; PW.8 in turn
handed over the chopper to Investigating Officer after 15
to 20 days. In the cross-examination, PW.8 has
admitted that there were about 200 to 300 people near
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the temple on the said day; he saw the chopper when it
was in the hands of the deceased. The deceased taking
the chopper in his hand tried to assault accused No1
and at that point of time accused No.2 went and tried to
avoid the assault on accused No.1 and in that process
the right hand of accused No.2 was injured;
Gurumurthy, CW.2, Hanumanrayappa, Narasappa,
Bhadrachar, Kumarachar and several others were
present; they caught hold the deceased and snatched
the chopper from his hand.
The evidence of PW.8 also fully supports the
defence version to the effect that it was the deceased
who started the quarrel and tried to take away the life of
accused No.1 However, accused No.1 was rescued by
the people including PW.2 who had gathered there. The
chopper was snatched from the hands of the deceased
and the same was handed over to PW.8, who in turn
handed over the same to the Investigating Officer.
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17. It is relevant to note that PWs.6 and 8 have
fully supported the case of the defence version not only
in the cross-examination, but also in examination-in-
chief itself. They were not treated as hostile witnesses.
The prosecution has accepted their evidence as it is.
Hence, we are of the clear opinion that the prosecution
has suppressed the real incident and has come out with
created story by concocting the complaint at Ex.P1.
18. At the first instance, the injured was taken
to Thyamagondlu Government Hospital on the way to
her parents place. She was examined by the doctor-
PW.16 in the said hospital. The evidence of PW.16
clarifies that the injured complainant-PW1 was brought
to the hospital by one Smt.Hanumakka (neighbour of
the injured) with the history of assault by
Krishnamurthy (accused No.1) and others with knife on
4.5.2003 at about 11.00 p.m.; the injured had
sustained incised wound on the right side of the back
measuring 1.5”x1” below the right scapula. She was
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given first-aid treatment and referred to major hospital.
The wound certificate of the injured is at Ex.P12.
From the aforementioned evidence of PW.16, it is
clear that the injured had sustained one injury at the
back and she was initially brought to Thyamagondlu
Hospital which is about 3 kms. from the place of the
incident. The doctor further admits that it was a
medico legal case and that she had intimated about the
injuries sustained by the injured to Thyamagondlu
Police after examining PW.1-injured. Thus, it is more
than clear that Thyamagondlu Police was already
informed immediately after the incident at about 11.00
p.m. on 4.5.2003 by PW.16. The material on record
also reveals that Thyamagondlu Police Station and
Thyamagondlu Primary Health Centre are situated in
Thyamagondlu Village itself.
19. In view of the same, we are of the clear
opinion that the evidence of PWs.6, 8 and 16 fully
supports the defence version on various points
30
including the point that the deceased was the aggressor
and he wanted to take away the life of accused No.1 at
10.00 p.m. in the temple (vide evidence of PWs.6 and 8);
that the police were informed not only by the public at
large, but also by the doctor-PW.16, since it was a
medico-legal case. The police have visited the scene of
offence on the mid night intervening between 4.5.2003
and 5.5.2003 itself and recorded the statements of PW.6
and others and started conducting the investigation by
carrying the weapons found on the scene of offence (vide
evidence of PWs.6 and 16). But such statements and
seizure aspects are suppressed by the prosecution,
obviously with a view to suppress the real case.
20. Having regard to the totality of facts and
circumstances and the discussion made supra, we are
of the opinion that the case as putforth by the
prosecution cannot be believed.
21. However, the defence has specifically come
out with the case that it was Accused No.1 who stabbed
31
the deceased 2 to 3 times since the deceased tried to
take away the life of Accused No.1. The material on
record, more particularly the evidence of the defence
reveals that deceased was the aggressor. The
deceased went to the temple at the first instance with
the chopper in order to assault Accused No.1. At that
point of time, the villagers who gathered in the temple
caught hold of deceased and snatched the chopper from
his hands. However in the meanwhile, during the
scuffle, the Accused No.2 sustained certain injuries.
The deceased being not satisfied, went out of the temple
and threw bricks towards Accused No.1, consequent
upon which Accused No.1 sustained certain injuries.
Once again the deceased came to the spot with the knife
and while assaulting Accused No.1, PW-1 seems to have
intervened and she has sustained certain injuries
because of the assault by the deceased. At that point
of time, the knife was also snatched from the hands of
the deceased by the Accused No.1. Deceased went
back to his house and brought back the chopper and
32
tried to assault Accused No.1. At that time, the
Accused No.1 said to have stabbed the deceased 2 to 3
times. These incidents have taken place in between
10.00 p.m. and 11.00 p.m. of 4.5.2003 in quick
succession. The Post-mortem report reveals three stab
injuries on the person of the deceased; rest of the
injuries are lacerations. Thus the medical records also
support the version of the defence.
22. Absolutely no material is forthcoming as
against Accused Nos.2 to 5. The only allegation against
Accused Nos.4 and 5 is that they were instigating the
other accused being behind the scene. The material on
record is not sufficient to conclude that Accused Nos.2
and 3 also participated in the scuffle. Per contra, the
material on record clearly reveals that Accused No.1
alone participated and he exercised his right of private
defence.
23. The submission of the learned Addl. SPP
that the Accused No.1 has exceeded his right of private
33
defence, also cannot be accepted. Having regard to the
repeated attempts made by the deceased in between
about 10.00 p.m. and 11.00 p.m. on three occasions,
the Accused No.1 must have been frustrated and
enraged and immediately on coming to know that his
life would not be spared, he must have at the spur of
the moment without premeditation, stabbed the
deceased with the knife on 2-3 occasions in order to
save his life.
24. A person exercising right of private defence
cannot weigh in golden scales, in the spur of the
moment and in the heat of passion, the number of
injuries required to avert further threat to the person
and properties, that too during night when the threat
came from a person who wanted to take away the life of
the accused. In such moment of excitement and
disturbed mental equilibrium, it is often difficult to
expect the parties to preserve composure and use only
so much force in retaliation commensurate with the
danger apprehended. Such situations have to be
34
pragmatically viewed and not with high powered
spectacles or microscopes to detect marginal
overstepping. Due weightage has to be given to and
hyper technical approach has to be avoided in
considering what happens on the spur of the moment
on the spot and keeping in view normal human
reactions and conduct where self preservation is the
paramount consideration.
It is condition precedent before a plea of self-
defence can be upheld that the threat must be real, that
the threat must be grave, that the threat must be
present at the point of time when the accused retaliated
and lastly that it must be established that the accused
had not tried to take undue advantage of the situation
by hitting back in a manner that the law does not
permit. The apprehension that the law contemplates
under this head of defence is a mental spate namely a
fear psychosis that is generated in the mind of the
accused which in turn triggers off the retaliatory action
which is essentially defensive and not offensive.
35
The few limitations on the right of private defence
of person or property are:
(a) that there is sufficient time for recourse to public
authorities, the right is not available;
(b) that more harm than that is necessary should not
be caused; and
(c) that there must be reasonable apprehension of
death or grievous hurt or hurt to the person or
damage to the property concerned {see Puran
Singh .vs State of Punjab, 1975 Crl.LJ 1479
(SC)}.
25. Exception 2 to Section 300 of IPC provides for
the case of a person who exceeds right of private
defence. The question in this matter is as to whether
the Accused No.1 exceeded the right of private defence ?
There cannot be any dispute that the right of private
defence shall be exercised in good faith and that the act
is done without premeditation. Whether the harm done
by the accused is commensurate with the necessity of
the accused giving right of self defence, is a question
36
which is to be decided. In this context, the provisions
of Sections 96 to 102 of IPC may have to be looked into.
Under Section 96 of IPC nothing is an offence
which is done in the exercise of the right of private
defence. As held by the Apex Court in the case of
Jaidev {1963(1) Crl.LJ 495(SC)} in India there is no rule
which expects a man first to run away or atleast try to
do so before he can exercise his right of private defence;
Rather he has every right to stand his own ground and
defend himself if there is no time to have recourse to
official help; Law does not expect a citizen to be a rank
coward and leave his own house at the mercy of the
accused.
Section 97 of IPC contemplates that every person
has a right, subject to the restrictions contained in
Section 99, to defend his own body, and the body of any
other person, against any offence affecting the human
body. Secondly every person has a right to defend the
property, whether movable or immovable, of himself or
of any other person.
37
Section 98 of IPC deals with the right of private
defence against that act of a person of unsound mind,
etc.
Section 99 of IPC testifies the limitation within
which the right of private defence be exercised. It
applies when a public servant is acting in good faith
under the shield of his office, though the particular act
may not be justified by law. The public servant should
not act outside the scope of his powers. The right
cannot be lawfully exercised when there is time to have
recourse to the protection of public authorities. While
exercising the right of private defence, one should not
inflict, more harm than it is necessary to inflict for the
purpose of defence.
Section 100 of IPC testifies as to when the right of
private defence of the body extends to causing death.
The right of private defence of the body extends subject
to the restrictions mentioned supra and to the
voluntary causing of death or of any other harm to the
38
assailant, if the offence which occasions the exercise of
the right be of any of the descriptions mentioned below:
a. Such an assault as may reasonably cause the
apprehension that death will otherwise be the
consequence of such assault;
b. Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise
be the consequence of such assault;
c. An assault with the intention of committing
rape;
d. An assault with the intention of gratifying
unnatural lust;
e. An assault with the intention of kidnapping or
abducting;
f. 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 101 of IPC states as to when the right of
private defence extends to causing any harm other than
death.
39
Section 102 of IPC states that the right of private
defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an
attempt or threat to commit the offence though the
offence may not have been committed; and it continues
as long as such apprehension of danger to the body
continues.
Sections 103 to 106 of IPC also deal with other
aspects of right of private defence. However, they may
not be relevant for the purposes of this matter.
26. From the aforementioned discussion, it is
clear that the apprehension in the mind of the accused
must be reasonable and the violence inflicted must not
be greater than is reasonably necessary for the purpose
of self defence. If there is sufficient time for recourse to
public authorities, the right is not available. There
must be reasonable apprehension of death or grievous
hurt or hurt to the person or damage to the property
concerned. So long as the danger to the body lasts, the
40
right of private defence continues. Reasonable ground
for apprehension is necessary.
27. Having regard to the totality of facts and
circumstances of this case, in our considered opinion,
the provisions of Section 100 of IPC are squarely
applicable to the facts of this case. The attempts were
made to take away the life of Accused No.1 by the
deceased on three occasions i.e., one in temple and at
the second time on the way to the house by wielding the
knife and thirdly at the scene of offence when the
deceased tried to assault with the chopper. At the first
instance, the attempt was made with the chopper, but
the same was snatched by the public. In the second
attempt by the deceased, the knife was snatched by
Accused No.1 in order to save his life. Being dissatisfied
with the said two attempts, the deceased once again
gone back to his house and brought chopper in order to
take away the life of Accused No.1. At that point of
time, suddenly without premeditation, the Accused No.1
41
in order to save his life, stabbed three times on the
stomach of the deceased.
28. In the matter on hand, the threat on
Accused No.1 was real and grave. Threat on Accused
No.1 was very much present at the time of the incident
in question i.e., when the accused retaliated. The
Accused No.1 has not tried to take undue advantage of
the situation by hitting back in the manner which the
law does not permit. The deceased was armed with
chopper and he was said to have come to the spot to
take away life of Accused No.1. At that point of time,
the Accused No.1 in order to save his life must have hit
back on the deceased by exercising his right of private
defence. Having regard to the totality of the facts and
circumstances of the case, in our considered opinion,
the Accused No.1 has not exceeded in exercising his
right of private defence. Since Accused No.1 has not
exceeded his right of private defence, the trial Court is
justified in acquitting the accused.
42
29. Strangely, as aforementioned, the
complainant though in her complaint has stated that
the accident has taken place in her house, later she has
come out with a different version that the accident has
occurred outside the house. The incident in question
is not just outside the house, but it is 80 feet away from
the house. The spot of the incident is in between the
temple and the house. Thus the prosecution has not
only suppressed the original genesis of the case, but
also suppressed the scene of offence.
In view of the above, we are of the opinion that the
order of acquittal passed by the Court below is just and
proper. This being the appeal against the Judgment
and Order of acquittal, this Court would be slow in
interfering in the judgment of acquittal, even if the
second view is possible under the facts and
circumstances. We find that the view taken by the trial
Court is one of the plausible views under the facts and
circumstances of the case. Hence no interference is
called for.
43
Appeal fails and the same stands dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
JTR/CK/GSS/-