Kerala High Court commutes sentence of man who killed uncle

The Kerala High Court recently commuted the sentence of one Rajeesh (appellant), who was convicted of murder and sentenced to undergo life imprisonment for killing his uncle who had assaulted the appellant's mother [ Rajeesh v State of Kerala]

. A Bench of Justices K Vinod Chandran and C Jayachandran found that the appellant had no criminal intention to murder his uncle and that only the offence of culpable homicide can be maintained. Therefore, the sentence awarded was reduced from life imprisonment to the three years of incarceration that he had already undergone.

The order of the Court described the incident which led to the instant case as follows:

" We commence with a Chinese proverb; apposite to the facts of this case: 'If you are patient in one moment of anger, you will escape a hundred days of sorrow.' By sheer misfortune a son fell prey to his ungovernable passion upon witnessing an assault on his mother; but his irresistible impulse pierced the chest, involving the heart, of the assailant, his own paternal uncle. The son, sentenced to be imprisoned for life, assails the judgment of conviction for offence under Section 302 of the Indian Penal Code, in this appeal. "

. The Court rejected the plea of self-defence that was raised by the appellant, as it found that there was no cause for him to have had any reasonable apprehension of death or grievous harm and that the force used by him was not proportionate to said apprehension.

" Even when this Court is fully conscious of the binding precedents to the effect that the force applied by a person exercising the right of private defence cannot be gauged in golden scales, still, we are unable to persuade ourselves to hold that the accused had acted only within the legally permissible contours of the right, " the Court said.

. The Court passed the order on an appeal challenging the conviction of the appellant by a trial court under Section 302 (murder) of the Indian Penal Code (IPC), after which he was sentenced to undergo life imprisonment.

The appellant had allegedly stabbed his uncle when his mother and the uncle got into a heated argument at their house. During the course of the heated exchange, the deceased uncle is said to have pushed the mother onto the floor. Infuriated by the same, the accused supposedly caught hold of his uncle and stabbed him.

. The primary contentions of the appellant who was represented by Senior Advocate P Vijayabhanu were as follows:

. Veracity of Prosecution Witness Testimony

Contention: The main witness turned hostile to the prosecution and therefore, his testimony cannot be considered.

Court's response: The law is settled that the evidence tendered by a hostile witness is not liable to be eschewed in toto. That part of his evidence which is found to be credible and trustworthy, can be taken stock of and relied upon, more so when such part of the evidence is corroborated by the evidence tendered by other witnesses.

The Court opined that the prosecution had proved beyond the pale of any reasonable doubt that the accused stabbed the deceased, which caused his death.

. Right of Private Defence

Contention: The appellant is entitled to exercise his right of private defence contemplated under Section 100, read with Section 97 of the IPC. The uncle was able-bodied, larger than the appellant and his mother and therefore he apprehended an assault which compelled him to use force in self defence.

Court's response: In Mahabir Choudhary v. State of Bihar , the Supreme Court observed that right to private defence cannot be used to kill the wrong-doer, unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue, in which case that person would have full measure of right to private defence including killing.

Section 99 of the Penal Code postulates that the right of private defence shall, in no case, extend to inflict more harm than it is necessary for the purpose of defence.

The fact that the deceased was not carrying a dangerous weapon and that he was the appellant's uncle persuaded the Court to hold that there was no reasonable apprehension of 'death' or 'grievous hurt' to the accused, even though the apprehension of an assault simplicitor is quite justified.

Therefore, Court negated the right to private defence claimed by the appellant.

. Murder vs Culpable Homicide

Contention: There was no requisite mens rea (criminal intention). As such, the conviction under Section 302 of the IPC is totally unsustainable. The appellant had neither any 'intention' nor 'knowledge' of a very high degree, so as to find him guilty under Section 300 of the IPC. At best, the offence under Section 299, punishable under Section 304 of the IPC is attracted.

Court's response: The accused was pre-eminently concerned about repelling the aggression made by the deceased, sans any intention, whatsoever, to cause the death of the accused. Therefore, the objectionable act fails to meet the requirements of Sections 302 and 300 of IPC and only attracts the offence under the third limb of Section 299 (culpable homicide).

. The Court, therefore, allowed the appeal in part and commuted his sentence to period of incarceration already undergone.

. [Read Judgment]

Kerala High Court commutes sentence of man who killed uncle

Giti Pratap

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