{"id":187762,"date":"1994-02-01T00:00:00","date_gmt":"1994-01-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kuriakose-vs-state-of-kerala-on-1-february-1994"},"modified":"2015-10-21T11:20:30","modified_gmt":"2015-10-21T05:50:30","slug":"kuriakose-vs-state-of-kerala-on-1-february-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kuriakose-vs-state-of-kerala-on-1-february-1994","title":{"rendered":"Kuriakose vs State Of Kerala on 1 February, 1994"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Kuriakose vs State Of Kerala on 1 February, 1994<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1994 SCC,   Supl.  (1) 602 JT 1994 (1)\t268<\/div>\n<div class=\"doc_author\">Author: G Ray<\/div>\n<div class=\"doc_bench\">Bench: Ray, G.N. (J)<\/div>\n<pre>           PETITIONER:\nKURIAKOSE\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA\n\nDATE OF JUDGMENT01\/02\/1994\n\nBENCH:\nRAY, G.N. (J)\nBENCH:\nRAY, G.N. (J)\nREDDY, K. JAYACHANDRA (J)\n\nCITATION:\n 1994 SCC  Supl.  (1) 602 JT 1994 (1)\t268\n 1994 SCALE  (1)270\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n<p>The Judgment of the Court was delivered by<br \/>\nG.N.  RAY, J.- This appeal is directed against the  judgment<br \/>\ndated March 25, 1983 passed by the Division Bench of  Kerala<br \/>\nHigh  Court disposing of Criminal Appeal No. 37 of 1981\t and<br \/>\nCriminal  Revision Petition No. 32 of 1981.  Both  the\tsaid<br \/>\nappeals\t and  the revision case arose out  of  the  judgment<br \/>\ndated  September 16, 1980 passed by the\t learned  Additional<br \/>\nSessions  Judge, Kottayam in Sessions Case No. 37  of  1980.<br \/>\nBy the said judgment, the learned Additional Sessions  Judge<br \/>\nacquitted  both the accused appellants from a  charge  under<br \/>\nSections  447,\t307, 302 and 34 IPC.  The  State  of  Kerala<br \/>\npreferred  the said Criminal Appeal No. 37 of  1981  against<br \/>\nthe  judgment of acquittal and the complainant also moved  a<br \/>\nrevision  petition against the said judgment being  Criminal<br \/>\nRevision  No. 32 of 1981.  The High Court allowed  the\tsaid<br \/>\ncriminal  appeal and convicted both the\t accused  appellants<br \/>\nunder  Section 302 IPC and convicted each of them to  suffer<br \/>\nrigorous  imprisonment\tfor  life.   In\t view  of  the\tsaid<br \/>\ndecision rendered in the appeal, the criminal revision\tcase<br \/>\nwas disposed of without passing any order.  The short  facts<br \/>\nof the prosecution case are inter alia that 26th January was<br \/>\nSt. Sebastian&#8217;s day which was celebrated with jubilation  in<br \/>\nthe  locality.\t PW  1\tPoulose,  belonged  to\tVayala\tnear<br \/>\nKoodalloor but later on shifted to Trichur after selling his<br \/>\nland and winding up his affairs in Vayala.  He also came  to<br \/>\nthe said locality on January 26, 1980.\tThe deceased, Varkey<br \/>\nhad  put  up an enclosure on the road with an  icon  of\t St.<br \/>\nSebastian.   The said Varkey and the other  deceased  Chacko<br \/>\ntogether  with PW 1 had been to the church in  the  evening.<br \/>\nVarkey\tasked the accused 1, Kuriakose, to pay\tcontribution<br \/>\nfor  the said enclosure put up by Varkey at about 8.00\tp.m.<br \/>\non  January 26, 1980.  He refused to pay  such\tcontribution<br \/>\nand  made  some remarks on which there\twas  an\t altercation<br \/>\nbetween\t Varkey and the said accused 1. It is  alleged\tthat<br \/>\naccused\t 1  assaulted Varkey on which PW 2, son\t of  Varkey,<br \/>\ngave  one blow to accused 1. Chacko had given two  kicks  to<br \/>\nthe  said  accused.   Accused 1 thereafter  left  the  place<br \/>\nthreatening the deceased and the others.\n<\/p>\n<p>2.The locality in which the deceased and the accused  had<br \/>\nbeen staying was an area intensely cultivated.\tThe deceased<br \/>\nVarkey and the other deceased Chacko who was his brother had<br \/>\nlands  where cultivation of tapioca and other crops used  to<br \/>\nbe  carried out.  Beyond the fields of Varkey and Chacko  to<br \/>\nthe  north,  accused 1 also had\t agricultural  field  having<br \/>\nbanana\tcultivation.   The  features  and  location  of\t the<br \/>\nproperty  were\texhibited  in a plan Ext.   A-6.   The\tnext<br \/>\nmorning,  namely on January 27, 1980 Varkey and\t Chacko\t had<br \/>\nbeen  to  the  field in connection  with  their\t cultivation<br \/>\nactivities.  It is the prosecution case that<br \/>\n<span class=\"hidden_text\">604<\/span><br \/>\nwhile  they were in the field accused 1 accompanied  by\t his<br \/>\nson, accused 2, namely Jose Kappen went towards the field of<br \/>\nVarkey and Chacko and they came along the property of Varkey<br \/>\nand Chacko.  Varkey protested to such moving on the property<br \/>\nof  Varkey and told the accused that there was no way  along<br \/>\nthe  said land.\t The first accused thereafter  persisted  in<br \/>\nwalking\t along\tthat way and challenged Varkey\tand  Chacko.<br \/>\nBoth  the accused who kept knives covered in  their  sheaths<br \/>\ndrew  them  out and accused 1 stabbed Varkey 3 to  4  times.<br \/>\nVarkey died on the spot.  Accused 2 inflicted stab wounds on<br \/>\nChacko and he also succumbed to those injuries on the  spot.<br \/>\nPW  2,\tSunny George, was then in the northern yard  of\t the<br \/>\nhouse  in  the company of PW 1, Poulose and  Pappu.   Having<br \/>\nnoticed the said murderous assault on Varkey and Chacko,  PW<br \/>\n2  rushed towards the spot but he stumbled on a\t small\tbund<br \/>\nand  fell down.\t PW 3, Devaria who had been  returning\thome<br \/>\nafter attending the service in the church heard the noise of<br \/>\nthe  quarrel in the field and rushed to the spot.  PW 1\t and<br \/>\nnephew\tof  Varkey  also rushed to  the\t spot.\t When  those<br \/>\npersons\t reached  the place, Varkey and\t Chacko\t were  found<br \/>\ndead.\tThe first accused pulled PW 2 who had  fallen  after<br \/>\nstumbling  by his leg and the accused 2 stabbed PW 2. A\t hue<br \/>\nand cry was raised by PW 1 and PW 3, Varkey&#8217;s wife and Pappu<br \/>\nthe  nephew of Varkey.\tBoth the accused persons  then\tfled<br \/>\naway from the place.  PW 2 was taken to the Medical  College<br \/>\nHospital in a jeep by PW 3. PW 5, Dr E.E. Raja, examined  PW<br \/>\n2 in the hospital and issued the wound certificate Ext.\t  P-\n<\/p>\n<p>2.   The said PW 2 was discharged on February 6,  1980\tfrom<br \/>\nthe  hospital and the said doctor also issued the  Discharge<br \/>\nCertificate  Ext.  P-3 to PW 2. The Police Officer PW  9  of<br \/>\nMarangattupally Police Station rushed to hospital on  coming<br \/>\nto  know  that PW 2 had been taken to the  hospital  and  he<br \/>\nreached\t the  hospital at about 9.00 a.m. and  recorded\t the<br \/>\nstatement  given  by PW 2 (Ext.\t P-1).\tHe also\t prepared  a<br \/>\nnote after noticing the wound on the body of PW 2. Such note<br \/>\nis Ext.\t P-1 (A) and he took into custody lungi MO 4 worn by<br \/>\nPW  2.\tThereafter, he returned to the\tpolice\tstation\t and<br \/>\nregistered Crime No. 4\/80 and prepared the first information<br \/>\nreport Ext.  P-8.  The investigation was later on taken over<br \/>\nby  the\t Circle\t Inspector PW 10, and inquest  on  the\tdead<br \/>\nbodies was prepared being Ext.\tP-9 and P-10.  Sheath of the<br \/>\nknife  was found in the field which was seized being  MO  1.<br \/>\nThe  dead bodies were sent to the Medical  College  Hospital<br \/>\nfor  postmortem examination.  PW 6 conducted the  postmortem<br \/>\nexamination  on Varkey and Chacko and issued the  postmortem<br \/>\ncertificates being Exts.  P-4 and P-5.\n<\/p>\n<p>3.The accused surrendered before the Circle Inspector and<br \/>\nthey were interrogated by the Circle Inspector.\t Pursuant to<br \/>\nthe statement made by accused 1 Ext.  P-11 (a) knife (MO  2)<br \/>\nand  sheath (MO 12) were recovered from the  rubber  machine<br \/>\nshed  of  the  said accused.  Similarly, knife\t(MO  3)\t was<br \/>\nrecovered pursuant to the confession Ext.  P- 11 (b) made by<br \/>\naccused 2.\n<\/p>\n<p>4.   Ten  witnesses  were examined by  the  prosecution\t and<br \/>\ndocuments  P-1 to P-11 (b) were also exhibited.\t It  appears<br \/>\nthat  one of the prosecution witnesses, namely Jose  Kappen,<br \/>\nPW  4,\twas declared hostile.  In the statement\t made  under<br \/>\nSection\t 313, Criminal Procedure Code, accused 1  completely<br \/>\ndenied\tthe incident which happened on January 26, 1980\t and<br \/>\nmade  a statement to the effect that when on January 27,  he<br \/>\nwas  proceeding along the bund towards his own land  he\t was<br \/>\nobstructed,  kicked,  fisted and beaten up by  the  deceased<br \/>\nalong  with Pappu and PW 2. He cried aloud and\thearing\t his<br \/>\ncry, his son, accused 2 rushed there but the said accused  2<br \/>\nwas also beaten up and fisted by the said<br \/>\n<span class=\"hidden_text\">605<\/span><br \/>\npersons\t and  accused 1 somehow managed to escape  from\t the<br \/>\nsaid  place.   The  accused  2\talso  denied  any   incident<br \/>\nhappening  on the previous night and he made a statement  to<br \/>\nthe effect that having heard a cry in the field he rushed to<br \/>\nthe  spot  and\tfound that his father  had  been  beaten  by<br \/>\nVarkey,\t Chacko\t and PW 2. When he rushed to the  place\t and<br \/>\ncried  for  help,  he was also\tbeaten\tand  throttled.\t  He<br \/>\nsomehow escaped from the place, out of fear for life.\n<\/p>\n<p>5.  The learned Sessions Judge, however, acquitted both\t the<br \/>\naccused persons from the charges levelled against them.\t  It<br \/>\nmay  be noted in this connection that at the hearing of\t the<br \/>\nsaid  appeal and revision case, it was not disputed  by\t the<br \/>\nlearned\t counsel  for the accused  that\t although  acquittal<br \/>\norder  was  justified the judgment of the  learned  Sessions<br \/>\nJudge was unsatisfactory and the points for the decision had<br \/>\nnot  been formulated and case of either party had  not\tbeen<br \/>\ndiscussed properly.\n<\/p>\n<p>6.  From  the facts and circumstances of the  case  and\t the<br \/>\nevidences   adduced,  it  transpires  that  accused  1\t had<br \/>\nagricultural  property to the north of the property  of\t the<br \/>\ndeceased  Varkey and Chacko.  There is a bund  running\tfrom<br \/>\nsouth to north along the agricultural field in question\t and<br \/>\nsuch  bund  is\tused by cultivators.  At  the  time  of\t the<br \/>\nincident, Pappu, nephew of Varkey, was also present near the<br \/>\nhouse  of  Varkey.   PW 2 is Varkey&#8217;s son  and\tChacko,\t the<br \/>\nbrother\t of Varkey had also come to the house of Varkey\t and<br \/>\nproceeded to the fields although he had a separate residence<br \/>\nof his own.  The learned Sessions Judge inter alia held that<br \/>\nthe  knives which were used for the murder of the  deceased,<br \/>\n(MO 2 and 3) stated to have been recovered by the police did<br \/>\nnot contain any bloodstain on chemical examination.  It\t was<br \/>\nheld   by  the\tlearned\t Sessions  Judge  that\t the   first<br \/>\ninformation statement was shrouded in suspicion and the said<br \/>\ninformation  report was not the one which had been given  by<br \/>\nPW  2  at about 9.00 a.m. in the Medical  College  Hospital.<br \/>\nThe learned Sessions Judge had indicated that the failure to<br \/>\naccount\t for  further  developments  on\t the  basis  of\t the<br \/>\nintimation  given by the Medical Officer PW 5  who  examined<br \/>\nthe  injured  witness  PW 2 was\t unusual.   It\twas  further<br \/>\nobserved  that the conduct of the SubInspector who  although<br \/>\ngot  the  information  about the murder,  proceeded  to\t the<br \/>\nhospital  and  not  to\tthe scene  of  occurrence  was\talso<br \/>\nunusual.   According  to  the learned  Sessions\t Judge,\t the<br \/>\nevidence  of  PW 1, a resident of Trichur and stated  to  be<br \/>\npresent\t at  the place of occurrence, also did\tnot  inspire<br \/>\nconfidence.   According to the learned Sessions\t Judge,\t the<br \/>\nevidence  of PW 3 was unsatisfactory because he had  omitted<br \/>\nto mention before the police about PW 2 falling down on\t the<br \/>\neastern\t side  of bund and having been stabbed on  the\tleft<br \/>\nside of the chest.  According to the learned Sessions Judge,<br \/>\nPW 2 was an interested witness.\t In that view of the matter,<br \/>\nthe  learned  Sessions\tJudge  was  of\tthe  view  that\t the<br \/>\nprosecution  case was not established and he acquitted\tboth<br \/>\nthe accused.\n<\/p>\n<p>7.It was contended on behalf of the accused that  accused<br \/>\n1 admittedly had bananaplantation  beyond  the\tfield\tof<br \/>\nVarkey.\t He had therefore occasion to proceedtowards<br \/>\nhis cultivated land.  It was contended that the existence of<br \/>\nbund  was beyond any dispute.  Such bund was being  used  by<br \/>\nthe  cultivators  as  a passage to go  to  their  respective<br \/>\nfields and the people as of right used to go along the bund.<br \/>\nThe  deceased had no right to obstruct such  movement  along<br \/>\nthe  bund.  It was sought to be contended on behalf  of\t the<br \/>\naccused\t that conspiracy was hatched on the  previous  night<br \/>\nagainst the accused and Varkey obstructed<br \/>\n<span class=\"hidden_text\">606<\/span><br \/>\naccused\t 1  from going to his field.  On  such\tobstruction,<br \/>\naccused\t 1 tried to assert the customary right of way  which<br \/>\nled to a scuffle and then his son, accused 2, had rushed  to<br \/>\nthe  spot.   If due to such scuffle, the  said\ttwo  accused<br \/>\npersons had exercised the right of self-defence and both the<br \/>\ndeceased  had died as a result of such exercise of right  of<br \/>\nself-defence,  no  conviction  was  warranted  against\t the<br \/>\naccused\t persons.  It was also contended that there  was  no<br \/>\nreason for both the deceased Varkey and Chacko to go to\t the<br \/>\nfield  early  morning to see to the watering  of  the  field<br \/>\nbecause\t the key of the pump house had not been\t found\tnear<br \/>\nthe area of scuffle.  It was also contended that it was\t not<br \/>\nnatural\t for  the Sub-Inspector of the police to go  to\t the<br \/>\nhospital instead of going to the place of occurrence when he<br \/>\nhad  received  the information of murder.   It\twas  further<br \/>\ncontended  that there had not been proper  investigation  of<br \/>\nthe  case and a different first information report had\tbeen<br \/>\nsubstituted.\tHence,\tthe  learned  Sessions\t Judge\t was<br \/>\njustified in acquitting the accused persons and there was no<br \/>\noccasion to interfere in the appeal.\n<\/p>\n<p>8.The  case  of the prosecution about the murder  of  the<br \/>\nsaid  two  deceased was sought to be  established  by  three<br \/>\neyewitnesses, namely PWs 1, 2 and 3. It has been observed by<br \/>\nthe High Court that although PW 1 at the relevant time was a<br \/>\npermanent  resident of Trichur, but it was  the\t prosecution<br \/>\ncase  that  he\tcame on the said  festive  occasion  of\t St.<br \/>\nSebestian&#8217;s  day and he also had his inlaws at Mayala.\t The<br \/>\nHigh Court has held that PW 1 admittedly used to stay in  of<br \/>\nthe locality of Varkey the deceased.  It was not unusual for<br \/>\nhim  to\t come  to the said village on the  occasion  of\t St.<br \/>\nSebastian&#8217;s  day  because  of his long\tassociation  in\t the<br \/>\nlocality.   The High Court has also noted that his  presence<br \/>\nat  the\t place of occurrence also gets corroborated  by\t the<br \/>\nfact  that on the day of occurrence, he was examined by\t the<br \/>\nSub-Inspector, PW 10.  The High Court has also held that the<br \/>\ncontention of the accused that the place of occurrence could<br \/>\nnot  be seen by PW 1 from the place where he  was  standing,<br \/>\nwas unacceptable in view of the fact that there was a  slope<br \/>\nand  it\t was  possible\tto  see\t the  place  of\t occurrence.<br \/>\nAccording to the High Court, such feature and topography had<br \/>\nbeen ignored by the learned Sessions Judge.  The High  Court<br \/>\nhas  also held that the taking of coffee referred to in\t the<br \/>\ntestimony of PW 1 has not been properly appreciated and\t the<br \/>\nmorning\t coffee\t was sought to be substituted as  a  regular<br \/>\nbreakfast.   According\tto  the\t High  Court,  the   learned<br \/>\nSessions  Judge overlooked the social habits of the  village<br \/>\npeople\tand  rejection\tof the testimony of  PW\t 1  on\tsuch<br \/>\nimproper view was unjustified and perverse.  The High  Court<br \/>\nhas  also held that the identification of the knife by PW  1<br \/>\nwas  not unnatural because he had occasion to see  the\tsame<br \/>\nand he had also given the description of the knives  earlier<br \/>\nwhen he stated that the knives were Mallappuram knives.\t The<br \/>\nHigh  Court  has  come to a  categorical  finding  that\t the<br \/>\nreasons\t given\tin  discarding\tthe evidence  of  PW  1\t are<br \/>\nabsolutely  untenable and without any substance.   The\tHigh<br \/>\nCourt has further held that PW 2 was an injured witness\t and<br \/>\nwas taken to the hospital and it will be improper to  reject<br \/>\nhis evidence simply on the ground that he had not  mentioned<br \/>\nthat  Chacko had been stabbed on the chest and that  he\t had<br \/>\nnot  indicated\tthe  exact location  where  he\thimself\t had<br \/>\nsustained  the injuries.  It has also been held by the\tHigh<br \/>\nCourt  that since he is an interested witness, his  evidence<br \/>\nis required to be scrutinised with care and  circumspection.<br \/>\nThe  High Court has further held that PW 3 had deposed\tthat<br \/>\nPW 2 had fallen on the<br \/>\n<span class=\"hidden_text\">607<\/span><br \/>\neastern\t bund  and  the\t injuries  were\t inflicted  on\t him<br \/>\nthereafter by the accused.  The omission to give the  detail<br \/>\nto  the police by PW 3 about the exact location where  PW  2<br \/>\nhad  fallen  and  the place  where  stabbing  injuries\twere<br \/>\ninflicted  should  not be highlighted out of  proportion  to<br \/>\ndiscard\t the evidence of PW 3. According to the High  Court,<br \/>\nthe  evidence adduced by PWs 1, 2 and 3 are  convincing\t and<br \/>\nshould\tbe accepted and if such evidences are accepted\tthen<br \/>\nthe  murderous assault committed by the accused persons\t and<br \/>\nthe  injuries inflicted on PW 2 are fully established.\t The<br \/>\nHigh Court has also held that presence of Pappu in the house<br \/>\nof Varkey was not at all unnatural specially in the  context<br \/>\nof an important event in the church at that time.  The\tHigh<br \/>\nCourt\thas  held  that\t the  allegation  of  hatching\t the<br \/>\nconspiracy on the side of the prosecution cannot be accepted<br \/>\nbecause of the presence of Pappu or Chacko in the house\t and<br \/>\nin the field at the time of occurrence because both are very<br \/>\nclose  relations.  The High Court has further held that\t the<br \/>\nexistence of pathway used by villagers along the bund cannot<br \/>\nbe accepted in view of the clear evidence given on behalf of<br \/>\nthe  prosecution.   In this connection, the High  Court\t has<br \/>\nreferred to the evidence of PW 4. Although PW 4 was declared<br \/>\nhostile,  the  said PW 4 stated that there  was\t no  pathway<br \/>\nalong  the cultivated area and there was only a\t ridge.\t  So<br \/>\nfar  as the recovery of knives with which the injuries\twere<br \/>\ninflicted  is concerned, the High Court has  indicated\tthat<br \/>\nthere was no suggestion in the cross-examination of the Sub-<br \/>\nInspector,  PW 10, about non-recovery of said  knives.\t The<br \/>\nHigh  Court  has  also\tcome  to  the  finding\tthat  almost<br \/>\nimmediately after the occurrence, statement was made by PW 2<br \/>\nand the prosecution had also produced the first\t information<br \/>\nreport\tbefore\tthe  Court and the  said  first\t information<br \/>\nreport\twas also filed in the Magistrate&#8217;s Court.  The\tHigh<br \/>\nCourt has held that Ext.  P-1 is a genuine document and\t the<br \/>\ncircumstances  under  which it was  recorded  were  properly<br \/>\nexplained  with\t reference  to\tthe  documentary  and\toral<br \/>\nevidence.\n<\/p>\n<p>9.  Coming to the conclusion of right to private defence  of<br \/>\nthe  accused,  the  High  Court has  observed  that  in\t the<br \/>\nstatement under Section 313 Criminal Procedure Code, no plea<br \/>\nof  right  to private defence had been taken by any  of\t the<br \/>\naccused. The High Court has held that there was no  mischief<br \/>\ncommitted by either of the deceased for which there was\t any<br \/>\noccasion  to exercise right of private defence and as  there<br \/>\nwas  no\t customary right of pathway which  might  amount  to<br \/>\nmischief   such\t plea  of  self-defence\t was  not   at\t all<br \/>\nacceptable.  The  High Court has further held that  even  if<br \/>\nthere  was  any\t customary right of pathway,  there  was  no<br \/>\noccasion to inflict knife injuries on vital pans of the body<br \/>\nto  cause  instantaneous death of both the deceased  for  an<br \/>\nalleged\t  interference\twith  a\t right\tof   pathway,\twhen<br \/>\nadmittedly,  the deceased Varkey and Chacko had\t no  weapons<br \/>\nwith them. In the aforesaid facts, there was no occasion for<br \/>\nany  threat  to\t the person or to  the\tproperty  justifying<br \/>\nstabbing  the  deceased\t to  death.  The  High\tCourt\thas,<br \/>\ntherefore,  held that the judgment of the  learned  Sessions<br \/>\nJudge was completely against the weight of the evidence\t and<br \/>\nwas perverse. Accordingly, the High Court set aside the said<br \/>\njudgment  and convicted both the accused under\tSection\t 302<br \/>\nIPC and passed sentence to undergo rigorous imprisonment for<br \/>\nlife against both of them.\n<\/p>\n<p>\t  10.  The  learned counsel for\t the  appellant\t has<br \/>\nreiterated the arguments which were advanced at the  hearing<br \/>\nof  the appeal before the High Court. It has been sought  to<br \/>\nbe  contended  that  not  only\tthe  right  of\tpathway\t was<br \/>\nobstructed<br \/>\n<span class=\"hidden_text\">608<\/span><br \/>\nby the deceased and their associates but they also assaulted<br \/>\nboth  the accused.  It was only on such assault\t that  there<br \/>\nwas  retaliation  by  the accused for  which  the  said\t two<br \/>\npersons had died.  It has been contended that in exercise of<br \/>\nright  to selfdefence if knives were used to save the  lives<br \/>\nof  the accused no exception should be taken.  It  was\triot<br \/>\npossible to weigh in golden scales the exact force which was<br \/>\nrequired to be applied by way of right of self-defence.\t  If<br \/>\nin such a case, the deceased had suffered injuries on  vital<br \/>\nparts which were not intended, the accused cannot be held to<br \/>\nbe guilty for an offence under Section 302 IPC.\t It has been<br \/>\ncontended  that in any event in such a case, the  conviction<br \/>\nunder  Section\t302  was not warranted and at  best  if\t the<br \/>\naccused\t had  exceeded\tthe right of  private  defence,\t the<br \/>\nconviction  under Section 304 IPC could have  been  awarded.<br \/>\nThe  learned  counsel  has, therefore,\tsubmitted  that\t the<br \/>\ndecision  of the High Court is not proper particularly\twhen<br \/>\nsome  features\tin  the case of\t the  prosecution  were\t not<br \/>\naccepted  fully by the learned Sessions Judge by  indicating<br \/>\ncogent\treasons.   The learned counsel\thas  submitted\tthat<br \/>\nalthough  the judgment passed by the learned Sessions  Judge<br \/>\nmay  not be a well-written judgment for which criticism\t had<br \/>\nbeen  advanced\tat the hearing of the appeal, it  cannot  be<br \/>\nheld that the points indicated by the learned Sessions Judge<br \/>\ncould not and did not warrant an order of acquittal.\n<\/p>\n<p>11.  After giving our anxious consideration to the facts and<br \/>\ncircumstances  of the case and the materials  and  evidences<br \/>\nadduced\t in  the  case,\t it appears to\tus  that  there\t are<br \/>\nclinching  evidences to establish the prosecution case.\t  In<br \/>\nour view, the High Court has given very cogent reasons as to<br \/>\nwhy the evidences of PWs 1, 2 and 3 should be accepted.\t  PW<br \/>\n2  is an injured witness who made statement at the  hospital<br \/>\nshortly after the incident when he was taken for  treatment.<br \/>\nHis evidence gets corroborated by the evidences given by the<br \/>\nother  witnesses.   The\t reasons  advanced  by\tthe  learned<br \/>\nSessions  Judge for discarding those evidences do not  stand<br \/>\nscrutiny  as  rightly  held by the High Court.\t It  is\t not<br \/>\nnecessary  to consider about the incidents happening on\t the<br \/>\nprevious night.\t If the murderous assault by the accused  is<br \/>\nestablished   by  clear\t and  clinching\t evidences  of\t the<br \/>\neyewitnesses,  it will not be necessary to  investigate\t the<br \/>\nmotive behind such commission of offence.  In our view,\t the<br \/>\nHigh  Court is wholly justified in holding that the case  of<br \/>\nright  to self-defence cannot be accepted.  The accused\t did<br \/>\nnot plead any right to self-defence.  On the contrary,\tthey<br \/>\nsimply\tstated that they were assaulted and out of fear\t for<br \/>\nlife they escaped from the place of occurrence.\t That apart,<br \/>\nboth  the  deceased were unarmed and serious  injuries\twere<br \/>\ninflicted  with knives on the vital parts of the  bodies  of<br \/>\nthe  deceased  by the accused persons.\tThe nature  of\tsuch<br \/>\ninjuries negatives any just plea for right to  self-defence.<br \/>\nAccordingly existence of customary right of way need not  be<br \/>\nconsidered in the facts of the case.  We, therefore, find no<br \/>\njustification to interfere with the conviction and  sentence<br \/>\npassed by the High Court.  The appeal, therefore, fails\t and<br \/>\nis  dismissed.\tThe appellants were released on bail  during<br \/>\nthe  pendency  of this appeal.\tThey should  be\t taken\tinto<br \/>\ncustody to serve out the sentence imposed on them.\n<\/p>\n<p><span class=\"hidden_text\">\t  609<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Kuriakose vs State Of Kerala on 1 February, 1994 Equivalent citations: 1994 SCC, Supl. (1) 602 JT 1994 (1) 268 Author: G Ray Bench: Ray, G.N. (J) PETITIONER: KURIAKOSE Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT01\/02\/1994 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-187762","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Kuriakose vs State Of Kerala on 1 February, 1994 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kuriakose-vs-state-of-kerala-on-1-february-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kuriakose vs State Of Kerala on 1 February, 1994 - Free Judgements of Supreme Court &amp; 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