Decided on June 13,1955

STATE Appellant


- (1.) This is an appeal by the State against the acquittal of one Narayanan Asaan Ramachandran Asaan who was charged for an offence punishable under S.302, Indian Penal Code, by the Additional Sessions Judge of Quilon in S.C. 21 of 1954. The prosecution case is that the accused had sold some bundles of cadjans to deceased Echambi Kesavan in the beginning of Kumbhom 1127 in which connection some balance amounts were due to the accused and when the same was demanded by the accused at about 1 P.M. on 11.4.1952 while they were in the Chengamanad-Anchal Road an altercation took place between the accused and the deceased during which the accused gave some fatal stabs to the deceased. The deceased passed away on 12.4.1952 at the Hospital and the accused was arrested and charge sheeted. The lower court held that though the injuries were caused by the accused it was only in the exercise of private defence and hence acquitted him. On behalf of the State it is contended that the evidence shows that there was no right of private defence in the accused when he did the deed and that the acquittal was without justification.
(2.) Coming to the evidence as to how the occurrence took place, Ext. C is the statement of the deceased given to the Kottarakara Police forming the basis of the First Information Report. There it is said that the accused asked the deceased to pay him the amounts due in connection with the sale of cadjans, that the deceased said that he had not the money in his hands then, that then the accused caught hold of his waist cloth, that the umbrella and other things in his hand fell down, and that there was a scuffle between them during which the accused took his dagger and stabbed the deceased. Ext. Q is the statement recorded by the Magistrate while the deceased was lying in the Hospital. That also is on the same lines it being stated that the stabs were inflicted when the scuffle was going on. As pointed out by the counsel for the accused the deceased stated that he was not in fear of death then. Hence Ext. Q cannot be given the sanctity attached to a dying declaration as such. None of these statements referred to any exchange of blow between the accused and the deceased. Coming to the eye witnesses, in Ext. C there names are mentioned, namely, Kochukunju Nair, Sukumaran and Podiyattuvila Narayanan. The first was examined as Pw. 3 and the second as Pw. 4. The third name does not correspond to that of Pw. 1 as the house names are different. It is not shown that in the evidence the identity between these two persons has been established. Pw. 1s evidence is to the effect that he was coming with the deceased when the occurrence took place. If so, the failure to establish the identity between Pw. 1 and the person referred to in Ext. C is a fatal flaw in the prosecution evidence. Then regarding the occurrence as described by these eye witnesses, all of them depose that there was an exchange of blows, the accused being the first to begin and there was a subsequent scuffle during which the occurrence took place. Pws. 1 to 4 depose that something fell down from the waist of the accused on the road which the deceased tried to keep under foot but the accused managed to take it up. Then it was that the stab took place. The version given by the deceased is that the dagger was taken by the accused from his waist. Thus there are certain clear developments in the prosecution case. If, as stated in Ext. C, the dagger was suddenly taken from the waist and the injuries inflicted it shows an absence of any premeditation whereas the prosecution witnessess evidence will go to show deliberation on the part of the accused. Anyhow, the statement of the deceased as well as the evidence of the prosecution witnesses are consistent with regard to the stab being inflicted after the scuffle had been going on for some time. The defence contention which has been accepted by the lower court is that during the scuffle the accused was in mortal danger and the act was done only under such circumstances. The Public Prosecutors contention is that the evidence did not go to show that the accused had any reason to be apprehensive of his safety. Here the stabbing takes place after the altercation had been proceeding for some time and admittedly during a scuffle and according to Ext. C statement the dagger being taken suddenly from the waist. It is also in evidence that some of the relatives of the deceased were appearing on the scene from the neighbourhood. Under such circumstances the lower courts finding that the accused was justified in having some apprehension of his safety at that moment cannot be considered as erroneous. There is one aspect of the case which has not been borne in mind by the lower court. In a case where the accused pleads the right of private defence it is the duty of the court to see whether the accused had been the aggressor. As laid down in 18 Criminal Law Journal 864 an act done in the exercise of the right of private defence is not an offence and does not, therefore, give rise to any right of private defence in return. Here, according to the eye witnesses and Ext. C statement the quarrel was started by the accused. That aspect ought to have been gone into by the lower court but in view of the discrepancies regarding the occurrence as given in Ext. C statement and the evidence of the prosecution witnesses and the absence of definite evidence regarding the nature of the scuffle we do not think that will be proper to interfere with the lower courts order of acquittal. The guiding principle to be followed with regard to interference with an acquittal by a Trial Court is referred to in 1953 SCR 418 at page 423. There it is observed as follows:- After an order of acquittal has been made presumption of innocence is further reinforced by that order and that being so the Trial Courts decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons. So we hold that sufficient ground has not been made out to interfere with the lower courts finding.
(3.) In the result, the appeal is dismissed and calender revision dropped.;

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