Supreme Court

Mani and Ors. Vs. State of Kerala and Ors.

MANU/SC/0447/2019

01.04.2019

Criminal

Right of private defence does not extend to inflict more harm than it is necessary in exercise of right of private defence

The challenge in the present appeals is to a judgment maintaining conviction of the Appellant for an offence under Section 302 of Indian Penal Code, 1860 (IPC), whereas, conviction of the other Accused was maintained for offences under Sections 324 and 341 read with 34 of IPC while acquitting said Accused for an offence under Section 302 of IPC. Question involved in present appeal is whether benefit of right of private defence is to be given to the Appellant.

There is no error in the order passed by the High Court that, there was no common intention in causing death of Soman. The prosecution has not produced any evidence showing that ,the Accused were present at the place of occurrence at Chozhiyamkod or that they were part of the group creating trouble at that place. There is no evidence that any incident occurred at that place either of burning of sari due to fire crackers or of missing of flag. Therefore, genesis to the dispute has not been proved by the prosecution.

All the injured witnesses have consistently deposed the death of Soman by the Appellant. The injury received by the Appellant is not serious, therefore, he could not have attacked the deceased on chest which is vital part, as such injury is likely to cause death. Therefore, the Appellant is not entitled to right of private defence which does not extend to inflict more harm than it is necessary in exercise of right of private defence. Therefore, the plea that the Appellant acted in his private defence is not made out.

However, the Appellant came from west direction at the place of occurrence riding on a motorcycle. The Accused had no knowledge or information that the victims are moving towards Chozhiyamkod. The prosecution witnesses have deposed that the Accused or the victims did not have any personal enmity except political differences. The Appellant was suddenly confronted with the victims and in the fight ensued in which the injuries came to be inflicted upon the deceased and other victims.

In view of sudden fight without any premeditation, the conviction of the Appellant for an offence under Section 302 of IPC is not made out. The cause of death of the deceased is knife blow on the chest of the deceased-Soman. Such injury is with the knowledge that, such injury is likely to cause death, but without any intention to cause death. Thus, the death of Soman is a culpable homicide not amounting to murder as the death has occurred in heat of passion upon a sudden quarrel falling within Exception 4 of Section 300 of IPC. Therefore, it is an offence punishable under Section 304 Part I of IPC.

The Appellant has undergone more than seven years of actual imprisonment. Therefore, keeping in view the background and the circumstances in which the occurrence happened, sentence imposed on the Appellant is warranted to be modified to as already undergone while maintaining fine of Rs. 20,000. Criminal Appeal filed by the Appellant is partly allowed and Criminal Appeal filed by the State of Kerala is dismissed.

Tags : Conviction Private defence Applicability

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