JUDGMENT
1. What started as a long standing property dispute at Napoklu Village in Madikeri ended abruptly on 30-5-1992 at about 6.30 p.m. with the death of one Monnappa and gunshot injuries to P.W. 12-Subramani, P.W. 13-Nanaiah and his aged mother Kamavva. The prosecution alleges that the accused K.M. Kukkappa and the deceased as also the injured persons belong to the same extended family and that there were the inevitable skirmishes with regard to respective shares in an area of about 50 acres of land. Despite litigations and partitions, the disputes continued and the bone of contention appears to be a small area of 40 cents adjoining the house of the accused which he was not agreeable to partition as he wanted to construct a residential house there. A civil suit was filed and during the pendency of the suit the accused put up a fencing around that area which was forcibly demolished by the deceased and other members of the family. The accused lodged a police complaint and finally, with the intervention of the police on 29-5-1992 the parties had arrived at some kind of temporary settlement. This position however does not appear to be correct because the accused and his wife both of whom have given evidence as defence witnesses deposed to the effect that on the way back from the police station the deceased and his group stopped the autorickshaw in which the accused was travelling back, pulled him out, abused him, manhandled him, put mud on his face and it is even alleged that one of them urinated in his mouth. The aftermath came the next morning when the prosecution alleges that Monnappa was proceeding towards the small temple and the accused fired at him with a gun. He sustained injuries on different parts of the body as over 48 pellets had hit him and he fell down bleeding. The sound of the firearm brought P.W. 12-Subramani, P.W. 13-Nanaiah and his aged mother Kamavva as also P.W. 4 and some others to the spot. It is alleged that the accused used the gun a couple of times thereafter as a result of which Subramani, Nanaiah and Kamavva had sustained gunshot injuries though none of them were of any seriousness. The persons who had gathered there virtually wrenched the gun from the hands of the accused after which the injured persons were taken to the respective hospitals. Though the injuries on Monnappa were not very serious, it
appears from the sequence of events that there was a long time-lag by the time he reached the hospital at Madikeri as a result of which he died more due to loss of blood than due to the gunshot injuries. The police arrested the accused and charged him with offences punishable under Sections 302, 326, 324 and 27 of the Arms Act. It is alleged that on the morning of 30-5-1992 itself the accused who had also sustained certain injuries came to the police station, met P.W. 30 and informed the Police Inspector that he had shot the four persons mentioned above. Pursuant to a voluntary statement made by the accused, the gun was seized from his residence. The ballistic expert has opined that the gun was in working condition and that it had been recently fired, the police recovered the cartridges from the scene of offence and after completion of the investigation, the accused was charge-sheeted and put up for trial. The learned Trial Judge held that the evidence on record did not conclusively establish that the injuries to the four persons had been caused by the accused as the evidence did not conclusively indicate that the witnesses were in a position to identify the persons who had fired the gun for a variety of reasons and consequently, acquitted the accused of all the charges. The State has assailed the correctness of the acquittal order through the present appeal. Since the accused was unrepresented, this Court appointed learned Advocate Mr. V. Ranga Ramu as Amicus Curiae to appear on behalf of the respondent-accused. At the hearing of the appeal, we have been taken through the entire record by the learned Additional Special Public Prosecutor and by the respondent’s learned Advocate and we have thoroughly reviewed the evidence on record and evaluated the submissions canvassed on various points of fact and points of law.
2. Mr. Koti, learned Additional State Public Prosecutor has, to start with referred extensively to the judgment of the Trial Court and to the fact that the reasons adduced by the learned Trial Judge for rejecting the evidence of P.Ws. 12, 13 and 15 as also P.W. 2 who is the father of the complainant Kariappa are weak, hollow and unsustainable. He has demonstrated to us that these are all unsophisticated witnesses and that despite the usual limitations that they have very clearly deposed to the fact that they arrived on the scene immediately after they heard the sound of the gunshot which had been directed against Monnappa and that when they rushed to that spot where he had fallen, which was near the residence of the accused, that he fired the gun twice injuring Subramani, Nanaiah and Kamavva. It was only after this that the accused was disarmed. They have admitted the fact that there was a dispute with regard to the area of 40 cents of land and they contend that the accused could not have put up a fencing during the pendency of the injunction order. Mr. Koti has then relied on the evidence of the Police Officer-P.W. 30 who deposed to the effect that the accused came to the police station and surrendered at about 10 a.m. on 30-5-1992 and stated that he had shot Monnappa and the other three persons referred to by us. Mr. Koti also relies heavily on the evidence of recovery of the gun, the evidence of the ballistic expert who has in turn stated that the gun was in working condition and that it had been fired, the scene of offence
mahazar which indicates that the used cartridges were recovered from
that spot and above all. he placed heavy reliance on the evidence of the
accused and his wife who are D.Ws. 1 and 2. His submission is that the
general background of disputes and hostility is admitted by both sides
and that this was the reason behind the firing by the accused. He points
out that even though the accused has contended in his evidence and in
his statement that he was assaulted and humiliated on the previous day
that he does not admit his presence on the next morning on 30-5-1992 when the incident took place. It is Mr. Koti’s submission that in the light of this record, there is really very little for the prosecution to establish because the majority of the prosecution case is admitted. He then goes on to point out that in the case of all the four injured persons, there is an entry in the medico-legal register indicating that it was the accused who had inflicted the gunshot injuries on them. Lastly, Mr. Koti submits that even as far as the injuries on the person of the accused are concerned that he has himself referred to these in his deposition while narrating the incident on the evening of 29-5-1992 and that consequently even this aspect of the prosecution’s duty i.e., of explaining the injuries on the accused has been complied with. He has therefore submitted that the order of acquittal is liable to be set aside and that the accused will have to be convicted. With a full sense of responsibility, Mr. Koti points out that even though the main head of charge is under Section 302 of the IPC, that after a very careful study of the medical evidence that it will have to be held that at the highest, the accused could be held guilty of the offence punishable under Section 304(II) of the IPC, as far as deceased Monnappa is concerned.
3. The respondent’s learned Advocate has submitted that insofar as he retraces the sequence of events, his contention is that admittedly when Monnappa sustained the gunshot injuries none of the witnesses were present. He states that being very early in the morning that the remaining witnesses were not around and it is also not clear as to whether they were even awake. It is their case that Monnappa had already fallen down injured when they arrived there and he contends that all the witnesses though they allege hostility against the accused have not in so many words deposed to the fact that they saw the accused firing the gun. It is his contention that firearms are freely used in this district in all sorts of petty quarrels and that the dispute with regard to the land was a long-standing one involving a large number of family members and that even if this dispute formed the background that there is no reason to conclude that it was the accused alone who had attacked the injured persons and caused the death of Monnappa. He has pointed out to me that the investigation in this case was extremely lax that the complaint was lodged after considerable delay only on the next morning that the statements of witnesses have been recorded as late as one and two months thereafter and that in totality, the prosecution case does not inspire any confidence. While defending the acquittal order, learned Advocate advanced the alternate submission that the Court must take very serious note of the fact that though the accused was facing a serious charge that he has still entered the witness-box and given evidence on
oath and that his evidence has not been even slightly shaken in cross-examination. His submission is that the accused was at the receiving end on the previous night that he had been subjected to a severe attack and horrifying levels of humiliation by the complainant’s group and that the injuries on the accused would clearly indicate that the morning’s incident was not a one-way affair as deposed to by the witnesses. His submission is that if the Court were to hold that the evidence establishes that the accused caused the injuries to the four persons that the Court must take note of the fact that he was one against a whole group on the other side, that the incident took place in front of his house in which he has been injured and that consequently, the Court must uphold the plea that the accused acted in exercise of the right of self-defence.
4. A careful evaluation of the evidence in this case, particularly the evidence of P.W. 12-Subramani, P.W. 13-Nanaiah, P.W. 15-Chinnappa and P.W. 20-Manikya conclusively indicates that despite the few infirmities which have hardly affected the credibility of the witnesses, that on the morning of 30-5-1992 the accused was armed with a gun and that he fired it three times and caused the injuries to the four persons. The evidence is fully corroborated by the entries in the medico-legal register, the wound certificates, the recovery of the pellets and the spent cartridges, the recovery of the gun from the residence of the accused, the evidence of the ballistic expert and lastly, above all the statement of the accused to P.W. 30 when he came to the police station. The learned Trial Judge has taken a serious view of the fact that Kariyappa, son of P.W. 20 who had lodged the F.I.R.-Ex. P. 34 has not been examined, totally overlooking the fact that the prosecution had pointed out that he was a serving member of the armed forces and was not available to give evidence. Even in the absence of his evidence, this is a case in which the prosecution has succeeded in establishing that the injuries were caused at the instance of the accused and the prosecution has also established that the accused did not possess a valid licence for the firearm in question.
5. The submissions canvassed by the learned Advocates before us raise a very novel and a interesting point of law. Mr. Koti submitted, in response to the contention from the other side, that the accused had been subjected to an attack of considerable intensity on the previous night by the deceased and his associates and that something similar had continued on the next morning which was why the accused fought back in exercise of his right of self-defence, that this defence can never be upheld because there is nothing on record to indicate that the deceased or any of his associates were carrying any arms, whereas the accused had a firearm with him and this is a weapon that would hold good even against an entire crowd of attackers. His submission therefore is that the principles with regard to the law of self-defence will have to be applied and he contended that in the first instance the evidence does not disclose that there was any threat of such gravity to the life or property of the accused that would justify his using a firearm. He was very emphatic about the fact that it is a requirement of law that the act of defence which is a reaction to a very serious threat to life or property
must be an instantaneous reaction and is not available to an accused if there is a lapse of several hours between the threat or attack to which the accused is subjected and the point of time when the accused fights back. Again, Mr. Koti submitted that a person who is in possession of a firearm and is using it against even a group of unarmed persons could never be justified in the use of that firearm because it is a matter of common knowledge that the injuries which are inflicted from the firearm are invariably fatal and he submits that even assuming that the accused was entitled to defend himself, that the Court must address itself to the important question as to whether at all the accused was justified in using force, but more importantly, even if force could have been used whether this is not a case in which the accused has exceeded his right of self-defence and has used more force than what the law permits. Mr. Koti was quick to submit that even if one does not apply a technical standard of evaluating the level of force that is permissible in “golden scales” (Jai Dev v State of Punjab and Amjad Khan v State) as the Supreme Court has observed that it is abundantly clear in the present case that the accused can never justify having shot four unarmed persons with a firearm even if they were the aggressors.
6. Mr. Koti, dealing with the submission canvassed on behalf of the accused that he had been the victim of a serious aggressive assault of the most horrifying nature on the previous evening at the hands of the accused and that on the next morning when there was an apprehension of a repetition or continuation of this incident that the accused was fully justified in having defended himself in the only manner available by firing the gun, pointed out to the Court that the incident on the evening of 29-5-1992 is totally disconnected from the incident on the morning of 30-5-1992 and that there is a total bar to the defence seeking to interconnect these incidents for purposes of justifying the plea of self-defence. Learned Counsel pointed out that in keeping with the law relating to grave and sudden provocation, what must be demonstrated is that pursuant to a grave apprehension threatening life or property, that the accused may immediately retaliate in view of the situational danger and he submits that it is impermissible to relate earlier events or incidents for purposes of justifying such a defence. While we do agree with the submission in principle as regards its general correctness, we need to record that this case presents rather unusual facts and that it is therefore necessary for the Court to carve out an exception to the general rule in view of certain special circumstances. What we need to point out is that 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 contemplate 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. While recreating the present incident, the Court needs to take cognizance of the total picture and this cannot be done de hors the immediate background. It is true as pointed out by the learned Additional State Public Prosecutor that there is no evidence before the Court to indicate that the deceased and his companions were armed on the morning of 30-5-1992 when the incident took place. There is one tell-tale circumstance however insofar as there is a fresh 6″ injury on the thigh of the accused and this could only have been inflicted in the course of the incident that morning and it is unequivocally established that it was inflicted with some sort of a weapon. The contention therefore that the deceased and his companions were unarmed does not appear to be wholly justified. The dispute over the area of 40 cents had taken not only an ugly but a violent turn on the previous evening when the deceased and his companions not only pulled the accused out of the autorickshaw on the way back from the police station but they abused him, manhandled him, put mud on his face and one of them even went to the extent of urinating in his mouth. The accused was helpless because he was outnumbered when this incident took place and it is his defence that he did not even come back to his own house out of fear. The evidence establishes that he had sustained a number of injuries on his person. The witnesses insist that nobody had assaulted the accused even after he was disarmed but this version does not appear to be correct. Mr. Koti argued vehemently that all the injuries must have been sustained in the incident that took place on the previous evening but we cannot accept that explanation because if that were to be the case, the accused would have had them treated and more importantly, when he was examined by the doctor on the morning of 30-5-1992 the certificate would have indicated that the injuries were not fresh injuries. It was a medicolegal case, the accused was taken to the hospital by the police and if the injuries were not of recent origin the doctor would have noted that. The circumstances therefore clearly indicate that the accused had sustained injuries in the course of this incident.
7. We therefore have a situation whereby the accused had gone through a horrifying and painful attack on the previous evening and there was another eruption on the morning of 30-5-1992. Whether the accused was right in having put the fence around that 40 cents of land or not is an issue which we do not require to address ourselves to but the fact remains that it was the deceased and his companions who had broken down the fencing on the previous day which was why the matter went to the police and from the fact that the incident has taken place just outside the house of the accused, it is clear that it is they who had gone there and that they were the aggressors. Again, on the morning of 30-5-1992, the accused was outnumbered at least 4 to 1 and we have good ground to hold that the deceased and his companions were also armed. The question is as to whether in such a situation the accused was justified in using force to defend himself and the answer would have to be in the affirmative. We recreate the mental condition of the accused
for purposes of demonstrating that the factor uppermost in his mind would have been the recent incident wherein he had gone through a shocking, painful and horrifying trauma and the fact that something even more serious could now take place as a sequel to that incident was apparent. While considering the level and degree of apprehension, a Court would normally confine itself to what has happened at the time of the incident but we need to extend that doctrine slightly for the purpose of demonstrating that in a given case, it would not only be relevant and permissible but it is absolutely necessary for a Court to take cognizance of other provocative incidents that have taken place in close proximity of time i.e., in the recent past. Mr. Koti is not justified in law in submitting that a clear-cut line has to be drawn between the incident and all that happened earlier for purposes of assessing the mental condition of the accused. On the contrary, the correct scientific approach would be to take note of the fact that recent painful or unpalatable experiences leave a deep impression on the human mind and if they are of very recent origin that they would not only surface but would merge with whatever has happened shortly thereafter. The accused in this case therefore would have reacted in relation to this total situation and not only to the isolated events that took place on the morning of 30-5-1992. Undoubtedly, this view is not only a slight departure but an extension of the well-settled doctrine relating to self-defence but in our considered view something that is necessary for purposes of doing justice on the facts and circumstances of this case.
8. In this background, the accused being faced by number of persons and that too the same persons who had attacked him on the previous evening, who had demonstrated an aggressive posture and in fact inflicted injuries on the accused, a situation had arisen whereby the law would justify the accused using force to defend himself. Even assuming that the accused had the option of making a mental choice with regard to the nature of defence, it must have occurred to him in a flash that after what happened on the previous evening and since the only person present in his own house was his old wife he himself being aged 63 years, that his using a firearm would probably have deterred the deceased from attacking him further. The firearm in question was one which used pellets and is distinguishable from a revolver or a riffle where the use of the weapon would kill. In the present instance, the pellets would normally cause injuries and in all probability relatively minor or superficial injuries. The use of such a firearm would therefore be very different from one where the results would be fatal and we take note of this fact particularly since Mr. Koti submitted that the accused could never be justified in the use of a firearm. In our considered view, it was obvious that he reached for the firearm because this would have probably frightened and driven away the attackers without having any fatal consequences. It has been demonstrated from the injuries on P.Ws. 12, 13 and Kamavva or for that matter the injuries on deceased Monnappa also, that the gun was fired from some distance and that the injuries were not really serious. Monnappa died due to the fact that he was bleeding and it took a very long time to get him medical assistance
and the doctor himself has accepted the position that had he received some medical assistance he would not have died. These facts answer the last objection raised by Mr. Koti namely that the accused has used more force than the situation warranted, because the evidence would clearly indicate that the intention of the accused was not to kill the assailants but at the highest to injure them.
9. Mr. Koti’s alternate argument was that in this background even if the accused is not convicted under Section 302 of the IPC, that he ought to be convicted under Section 304 of the IPC. Even though we have held that the injuries were caused by the accused, we need to take note of the fact that the law of self-defence is a total and absolute defence and if a Court upholds it, then de hors the fact that injuries or death have been caused, the accused still cannot be convicted. This being the position, we have no hesitation in confirming the order of acquittal of the accused recorded by the Trial Court for the offences punishable under Sections 302 and 307 of the IPC.
10. That brings us to the last charge under the Arms Act. As far as this charge is concerned, the evidence indicates that the accused did not possess a licence for the firearm and the evidence also indicates that the firearm was used by him as a weapon and in this background, as far as this charge is concerned the position is indefensible. Learned Advocate who represents the accused did submit that if the accused is entitled to immunity from conviction since he acted in exercise of the right of self-defence that he cannot be convicted under this head. This argument will not hold good because the Arms Act is a separate statute and the possession of a firearm without a licence is itself an offence and the use of such a firearm becomes an offence ipso facto. Under these circumstances, we set aside the order of acquittal recorded in favour of the accused by the Trial Court under this charge. The accused is convicted of the offence punishable under Section 27 of the Arms Act.
11. Before parting with this appeal, we need to take judicial notice of the fact that this is the 27th instance in the course of the last seven months when it has been disclosed that a firearm has been used in Kodagu District. Almost with a degree of uniformity this Court has noted with regret that for the slightest pretext, often times over insignificant issues, a firearm is pulled out and fired invariably with fatal consequences. The Government needs to take serious note of the fact that it appears that the existence of the Indian Arms Act has been totally ignored by the authorities in the district. In five of the cases there were direct references to the effect that firearms are being widely used for so-called hunting and that too of animals and birds killing of which is prohibited under law. The widespread destruction of wildlife in the district is directly attributable to the fact that the possession and use of firearms in prohibition of the law is being overlooked by the Government and as always happens, what is overlooked turns out to be direct encouragement to misuse the firearms. In 98% of the criminal cases from this district death or grievous injury has been caused with a firearm and, as in the present case it turns out that the accused did not even possess a licence.
12. The situation that prevails today by virtue of the law having been put into cold storage is that one is reminded of the days of the wild west when every argument was settled with a gun. It is highly desirable that the Government takes serious note of this situation and that effective and firm steps are taken to ensure that the provisions of law are enforced. A copy of this order shall be forwarded to the Secretary to Government, Home Department who shall report back to the Registrar indicating that the views of this Court have been communicated to the Government.
13. In the result, the appeal partially succeeds. While we uphold the acquittal of the accused for the offences punishable under Sections 302 and 307 of the IPC, we set aside the order of acquittal as far as the offence punishable under Section 27 of the Arms Act is concerned. In the facts and circumstances of the case and having regard to its overall complexion, we direct that the accused shall undergo a sentence of three years rigorous imprisonment for the charge under Section 27 of the Arms Act. The accused has been in custody for some time during the trial and it is not very clear to us from the record as to whether he is still in custody. It is however directed that the accused shall be entitled to set off for the entire period that has been spent in custody. If the accused is on bail and if he is still required to undergo custody for some period then, his bail bond to stand cancelled and the Trial Court to ensure that he undergoes imprisonment for the reminder of the period that he is required to do so. If however the accused is in custody and he has undergone the sentence imposed by this Court, he shall be set at liberty forthwith if not required in connection with any other offence. The appeal which partially succeeds to stand disposed of We direct the office to pay a sum of Rs. 2,000/- to learned Counsel Mr. V. Ranga Ramu who appears as Amicus Curiae Counsel and who has assisted the Court during the hearing of the appeal.