Supreme Court – Daily Orders
Ratheeshkumar @ Babu vs The State Of Kerala on 9 January, 2025
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1049 OF 2018
RATHEESHKUMAR @ BABU Appellant(s)
VERSUS
THE STATE OF KERALA & ANR. Respondent(s)
O R D E R
This appeal arises from the judgment and order dated
05.01.2018 passed by the High Court of Kerala at Ernakulam in
Criminal Appeal No.779 of 2013 by which the High Court dismissed
the appeal filed by the appellant herein and thereby affirmed the
judgment and order of conviction passed by the Additional Sessions
Court, Adhoc-III (Fast Track Court-III), Palakkad in Session Case
No.490 of 2008 for the offence punishable under Section 302 of the
Indian Penal Code, 1860 (for short, “the IPC”).
2. The case of the prosecution may be summarised as under:-
It appears from the evidence on record that the appellant
herein is an agriculturist. He owns his own agricultural farm. The
Signature Not VerifiedDigitally signed by
ARJUN BISHTagricultural farm of the deceased is adjacent to the agricultural
Date: 2025.01.15
16:59:04 IST
Reason:farm of the appellant herein. On the date of the incident, the
deceased was trying to put up a fence in some part of his land. The
2putting up of fence was objected vehemently to by the father of the
appellant herein namely, Ramakrishnan. There was some altercation
in words between the two. According to the case of the prosecution,
the father called for his son i.e. the appellant herein for help.
The appellant herein reached to the place where the quarrel was
going on. Thereafter, according to the case of the prosecution, the
appellant and his father caught hold of the deceased and the
appellant is said to have taken out a knife and inflicted stab
injuries on the chest region of the deceased. The deceased
succumbed to the injuries.
3. In such circumstances referred to above, the First Information
Report that came to be lodged for the offence of murder. At the end
of the investigation, chargesheet was filed. As the offence was
exclusively triable by the Sessions Court, the case came to be
committed to the Court of Sessions. The trial court vide order
dated 09.06.2009 framed charge. The charge reads as under:-
“I, R. Narayana Pisharadi, Addl. Sessions Judge, Ad
Hoc- III, Palakkad, hereby charge you, the above said
accused as follows:-
Firstly:-
That on 6.4.07 at about 12-45 p.m. in the compound
of house no Kuzhalmannam Panchayath at the police
Chithali Edakkad in Kuzhalmannam No. 1 Village in
Alathur Taluk, at the place at a distance of 10.64
metres from the south-eastern corner of the aforesaid
house to the south-east, you the first accused caught
hold of the collar of the shirt worn by the deceased
Narayanan and that you the second accused caught hold
of the neck of the deceased Narayanan and you the first
accused stabbed the deceased Narayanan on the right
chest and on the right side of the body with a knife
causing grievous injuries to him and as a result of
such injuries, Narayanan died at 2.24 p.m. on the same
day and thereby you the first accused have committed
murder of Narayanan and thereby committed an offence
punishable under section 302 of the Indian Penal Code
3and within the cognizance of this court and
Secondly:-
That the aforesaid act was committed by the first
accused in furtherance of the common intention of both
the accused to murder Narayanan and thereby you the
second accused have committed the offence punishable
under section 302 read with 34 of the Indian Penal Code
and within the cognizance of this court and
Thirdly:-
That on the same at the same time and at the same
place, you the first accused beat Narayanan who had
fallen down on account of the stab injuries sustained
by him with a wooden bar which is a dangerous weapon,
and voluntarily caused hurt to him and thereby you the
first accused have committed and offence punishable
under section 324 of the Indian Penal Code and within
the cognizance of this court and
Lastly:-
That on the same day at the same time and at the
same place, you the first accused beat CW1 Sidhique on
the shoulder and the neck with a wooden bar which is a
dangerous weapon and caused hurt him and thereby you
the first accused have committed an offence punishable
under section 324 of the Indian Penal Code and within
the cognizance of this court And I hereby direct that
you be tried by this court on the said charges.”
4. In the course of the trial, the prosecution examined as many
as seventeen witnesses. The prosecution also relied upon some
pieces of documentary evidence. Amongst those seventeen witnesses
that came to be examined, four of them were eye-witnesses to the
incident i.e. PW-1 – Sidhiq, PW-2 – Hemachoodan, PW-3 – Shibu and
PW-12 – Mini.
5. After the prosecution closed its evidence, the further
statement of the appellant herein came to be recorded under section
313 of the Evidence Act, 1872 in which the appellant claimed
himself to be innocent and denied having done anything.
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6. The trial court upon appreciation of the oral as well as
documentary evidence, acquitted the father however, held the
appellant herein guilty of the offence of murder.
7. The appellant being dissatisfied with the judgment and order
of conviction passed by the trial court preferred criminal appeal
before the High Court. The appeal came to be dismissed.
8. In such circumstances referred to above, the appellant is here
before this Court with the present appeal.
9. Mr. Adlolf Mathew, the learned counsel appearing for the
appellant vehemently submitted that the High Court committed a
serious error in dismissing the appeal and thereby, affirming the
judgment and order of the conviction passed by the trial court. The
learned counsel took us through the oral evidence on record more
particularly, the depositions of the four eye-witnesses to the
incident. He also invited our attention to some of the findings
recorded by the trial court as well as by the High Court and relied
upon such findings, he tried to develop an argument before us that
the appellant is entitled to the benefit of Exception 2 to Section
300 of the IPC or Exception 4 to Section 300 of the IPC. He would
submit that when the altercation was going on between the father of
the appellant herein and the deceased, the appellant was nowhere in
the picture. It is only when the father called for the appellant
that he reached the place of the incident and having realised the
seriousness of the situation, was left with no other option but to
take out a knife and stab the deceased to death. He further
submitted that there was an imminent threat to his property. He was
trying to protect his property and while trying to protect his
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property, he exercised his right of private defence.
10. In the alternative, he submitted that the case may even fall
within Exception 4 to Section 300 of the IPC. According to him, the
act was not pre-meditated or pre-planned. Everything happened in a
spur of a moment and that too in the heat of passion. He would
submit that the father of the appellant desperately wanted to stop
the deceased putting up a fencing. Whereas, the deceased was firm
in putting up the fencing. This dispute ultimately led to a very
ugly fight between them which led to this particular incident.
11. In such circumstances referred to above, the learned counsel
prayed that the conviction of the appellant be altered from Section
302 to Section 304 Part 1 of the IPC and the sentence be reduced
accordingly. On the other hand, Mr. Nishe Rajen Shonker, learned
counsel appearing for the State while vehemently opposing this
appeal submitted that no error not to speak of any error of law
could be said to have been committed by the High Court in
dismissing the appeal. The High Court after re-appreciation of the
oral as well as documentary evidence on record rightly dismissed
the appeal and thereby, affirmed the judgment and order of the
conviction passed by the trial court. He invited our attention to
an important fact that notice was issued in this particular matter,
only on the point of sentence. According to him, at the relevant
point of time, the Court must have prima facie felt that probably
the case may be falling within Exception 2 or Exception 4 of
Section 300 of the IPC, as the case may be. So only for this
limited purpose, notice was issued.
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12. He further submitted that the ocular version of the eye-
witnesses is consistent with the medical evidence on record. He
took us through the deposition of PW-6 i.e. Dr. P.B. Gujral. In the
last, he submitted that all the eye-witnesses could be said to be
true, trust worthy and reliable eye-witnesses and there is no good
reason to disbelieve their version. In such circumstances referred
to above, the learned counsel prayed that there being no merit in
the appeal the same may be dismissed.
13. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment. We must first look into the
evidence of one of the eye-witnesses. By and large, all eye-
witnesses have deposed the same and are consistent in their
version. Therefore, we look into the evidence of PW-1 – Sidhiq S/o
Abdul Rahman. PW-1 in his examination-in-chief has deposed as
under:-
“I am residing at Kuzhalmannam Thekkekkara, Perukunnam
I know Narayanan S/o. Edathudi Rakkandi. He died. He
was stabbed to death. On 6.4.07, at the house compound
of Narayanan. The incident must have been around 13½
hours during the day. I also witnessed. Babu @ Ratish
Kumar and Ramakrishnan did that. They are present in
the court. IDENTIFIED both accused. I went there to
make the fencing. I used to go for the fencing work of
Narayanan and his elder brother Sukumaran. We were
making the fencing on the west side of Narayanan’s
compound, from south to north. An aged lady named
Chinna was also with me for making the fencing. It was
on the south side of the compound of Narayanan. WITNESS
CORRECTS. Ratish and Ramakrishnan are residing on the
west side. The compound of Narayanan and the compound
of Ratish are adjoining compounds. The compound of
Srinivasan is also on the west side of the compound of
Narayanan. We started the fencing Work at 8½ hours.
While we were doing the fencing job, in between 1O½-
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11½, Ramakrishnan came two times and left. Ramakrishnan
did not say anything. He checked and left. Then nobody
came. Further the deceased Narayanan came to check
whether the fencing job is completed or not. That time
it must have been 12¾. That time Chinna was not
present. She left after the job. Ramakrishnan came when
Narayanan arrived. Ramakrishnan told that the fencing
should be shifted. Narayanan replied that it is his
father’s property. There was an altercation. There was
a push and pull. Ramakrishnan exhorted Babu to come by
running. Babu is Ratish Kumar. Ratish kumar came from
behind the house. Ramakrishnan caught Narayanan on his
neck. Babu caught Naryanan on his shirt collar
immediately on his arrival. He took out the knife from
his hip and stabbed Narayanan on his chest. There was a
pattika stick on the bottom of the fencing. When I took
the same and was about to hit Babu, Babu caught hold of
the same and took it from me. when he went to stab for
the second time, Shibu from the neighboring house, came
by running. Shibu is the son of Srinivasan. Shibu came
from the house of Shibu. When Shibu came to prevent,
Babu pushed him aside. Babu stabbed Narayanan on his
rib cage side. First stab was on the chest side. The
second stab was below that. I prevented him, when I
felt that he may stab for a third time. That time Babu
gave me beating with the pattika stick. I suffered the
beating on my right hand, on my shoulder. The father
and son told me to run away. Babu and Ramakrishnan told
me so. Babu gave me beating on my back, using the
pattika stick. I ran for 10 feet and turned back and
saw that Babu giving beating to Narayanan, two three
times. He gave beatings on his left and right hand.
When the wife of Narayanan came by running, they
dropped the stick and ran to their house. When I ran
for 10 feet, Hemachoodan and wife of Narayanan were
present. The incident took place in the house compound
of Narayanan. There is a ‘stone of Daivam’ at the place
of incident. Babu and Narayanan left after leaving the
stick. Narayanan fell down at the second stabbing.
Myself and Shibu lifted Narayanan and laid him on his
house verandah. The mundu that Narayanan was wearing
was removed and the same was tied on the wound. Santha
Kumaran Mash (CW-3) came that way. Myself, Santha
Kumaran Mash and Shibu took Narayanan to the NH. From
there, he was loaded into an auto and Santha Kumaran
Mash, Shibu and Mini also got inside. They went to
Palana hospital. One Rinu came from the south side. I
accompanied the auto on the bike of Rinu. We went 50
meters. At Chettimukku, we saw a car coming. The car
was stopped. The persons who were in the auto shifted
to the car. I got on to the front seat. The car went to
Palana hospital. Narayanan was taken for treatment. We
remained there with him. After about one hour, the
8doctor came and told that Narayanan is dead. That time
it was 2 ½ hours. About 10-50 persons were assembled at
that time.
Sukumaran, the elder brother of Narayanan advised to
intimate the police. I went to Kuzhalmannam police
station in the car of Sivadasah. I reached there after
3 o’clock, may be 3 ½ hours. SI and police persons were
present. I told them about the death. I told them as to
how the incident happened, they recorded the same. It
was read over to me. I put my signature on the same.
This is the same. MARKED EXHIBIT P-1. The same bears my
signature. Shown.
I went to the house of Narayanan from the police
station. People were assembled therein. About 6-6¼
police came to the house of Narayanan. Circle
Inspector, SI of Police and 4-5 persons were present.
As instructed by the circle inspector, I pointed out
the place of incident. They made writings. They
recovered the pattika stick, slippers and a pen (made
of steel). Two people were there with me. CW-14 Unni
Krishnan and CW-15 Prabi das were present. Signatures
of Unni Krishnan and Prabi Das were obtained. Myself,
the police persons, Unni Krishnan and Prabi Das came to
the house of Narayanan. Therein the police asked me
about the past incidents and recorded the same in
writing, the same was read over to me. Police left
about 8 o’clock. After one month, police questioned me
at Kuzhalmannam Police station. The knife was shown to
me at that time. It was a steel knife with a black
handle.
Q. Have you seen it earlier?
A. No.
This is the said knife. M0-1 MARKED. The end of the
black handle is little curved and the end is little
sharp. I saw the M0-1 knife when Ratish Kumar
stabbed Narayanan.
Q. Was it this knife?
A. Yes. It is.
Police recorded my statement. I gave statement to
the judge, before the court. It was one month after
the knife was shown to me. STATEMENT SHOWN. The
signature on the same is my signature.
Marking opposed on the ground that not recorded
administration of oath, no endorsement by the
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Magistrate at foot note, witness is not enlightened
that he is not bound to make the statement, he is
not enlightened that the statement can be used
against him, not sent to the Magistrate concerned
forthwith and procedure under Section 164 Cr.P.C.
not followed by the Magistrate. MARKED AS EXT. P-2.
Subject to the objections.
This is the pattika stick used for giving beating to
Narayanan by Ratish Kumar. M0-2 MARKED. The other
end is sharpened. This is the slipper seized by the
police. M0-3 MARKED. This slipper is of Narayanan.
It is of his left foot. It is of biscuit color. This
is the pen made of steel seized by police. M0-4
MARKED. This pen belonged to Narayanan. I have
studied up to class IV. I am a daily wager. Ratish
Kumar is called Babu by all in the local place.”
14. We also looked into the cross-examination of PW-1 – Sidhiq S/o
Abdul Rahman. Nothing significant could be elicited from the cross-
examination to discredit this particular eye-witness.
15. Having regard to the nature of the oral evidence on record
more particularly, the evidence of the eye-witnesses and the
genesis of the occurrence, it is difficult for us to take the view
that the case falls within Exception 2 of Section 100 of the IPC.
It is true that the High Court in its line of reasoning has given
an indication that the appellant herein was trying to act in
exercise of his right of private defence but in the process, he
exceeded in the same. To this extent also, we are not in agreement
with the High Court.
16. Section 96 of the IPC provides that nothing is an offence,
which is done in the exercise of the right of private defence.
Section 97 of the IPC further provides that every person has a
right of private defence to defend his own body and the property,
subject to the restrictions contained in Section 99. Section 99 of
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the IPC provides that there is no right of private defence against
an act which does not reasonably cause the apprehension of death or
grievous hurt, if done, or attempted to be done, by a public
servant, or by the direction of a public servant, acting in good
under colour of his office, though that act may not be strictly
justifiable by law. This provision further provides that the right
of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence.
Sections 100, 101, 102, 103, 104 and 105 respectively of the IPC
further provide as under :
“100. When the right of private defence of the body
extends to causing death – The right of private
defence of the body extends, under the restrictions
mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to
the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions
hereinafter enumerated, namely :-
First. – Such an assault as may reasonably cause the
apprehension that death will otherwise be the
consequence of such assault;
Secondly. – Such an assault as may reasonably cause
the apprehension that grievous hurt will otherwise be
the consequence of such assault;
Thirdly. – An assault with the intention of
committing rape;
Fourthly. – An assault with the intention of
gratifying unnatural lust;
Fifthly. – An assault with the intention of
kidnapping or abducting;
Sixthly – An assault with the intention of wrongfully
confining a person, under circumstances which may
reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for
his release.
101. When such right extends to causing any harm
11other than death – If the offence be not of any of
the descriptions enumerated in the last preceding
section, the right of private defence of the body
does not extend to the voluntary causing of death to
the assailant, but does extend, under the
restrictions mentioned in section 99, to the
voluntary causing to the assailant of any harm other
than death.
102. Commencement and continuance of the right of
private defence of the body – The right of private
defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an
attempt or threat to commit the offence though the
offence may not have been committed; and it continues
as long as such apprehension of danger to the body
continues.
103. When the right of private defence of property
extends to causing death – The right of private
defence of property extends, under the restrictions
mentioned in section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the
offence, the committing of which, or the attempting
to commit which, occasions the exercise of the right,
be an offence of any of the descriptions hereinafter
enumerated, namely :-
First. – Robbery;
Secondly. – House-breaking by night;
Thirdly. – Mischief by fire committed on any
building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or as a place for
the custody of property;
Fourthly. – Theft, mischief, or house-trespass, under
such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not
exercised.
104. When such right extends to causing any harm
other than death – If the offence, the committing of
which, or the attempting to commit which, occasions
the exercise of the right of private defence, be
theft, mischief, or criminal trespass, not of any of
the descriptions enumerated in the last preceding
section, that right does not extend to the voluntary
causing of death, but does extend, subject to the
restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other
than death.
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105. Commencement and continuance of the right of
private defence of property – The right of private
defence of property commences when a reasonable
apprehension of danger to the property commences.
The right of private defence of property against
theft continues till the offender has effected his
retreat with the property or either the assistance of
the public authorities is obtained, or the property
has been recovered.
The right of private defence of property against
robbery continues as long as the offender causes or
attempts to cause to any person death or hurt or
wrongful restraint or as long as the fear of instant
death or of instant hurt or of instant personal
restraint continues.
The right of private defence of property against
criminal trespass or mischief continues as long as
the offender continues in the commission of criminal
trespass or mischief.
The right of private defence of property against
house breaking by night continues as long as the
house-trespass which has been begun by such house-
breaking continues.”
17. Now, the question that arises for our consideration in this
appeal is as to whether in the facts and circumstances of the case,
the appellant-convict was justified in causing injuries to the
deceased with a knife, as mentioned above, in his self defence and
defence of property, which resulted into death. It is a settled
position of law that in order to justify the act of causing death
of the assailant, the accused has simply to satisfy the court that
he was faced with an assault which caused a reasonable apprehension
of death or grievous hurt. The question whether the apprehension
was reasonable or not is a question of fact depending upon the
facts and circumstances of each case. The court, while deciding
this question of fact, is to take into consideration various facts,
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like the weapon used, the manner and nature of assault, the motive
and other circumstances.
18. This Court in Darshan Singh v. State of Punjab and another
reported in (2010) 2 Supreme Court Cases 333, while considering its
various previous judgments on the subject, has summarised the
following principles regarding the right of private defence :
“(i) Self-preservation is the basic human instinct and
is duly recognised by the criminal jurisprudence of all
civilised countries. All free, democratic and civilised
countries recognise the right of private defence within
certain reasonable limits.
(ii) The right of private defence is available only to
one who is suddenly confronted with the necessity of
averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put
the right of self defence into operation. In other
words, it is not necessary that there should be an
actual commission of the offence in order to give rise
to the right of private defence. It is enough if the
accused apprehended that such an offence is
contemplated and it is likely to be committed if the
right of private defence is not exercised.
(iv) The right of private defence commences as soon as
a reasonable apprehension arises and it is co-terminus
with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault
to modulate his defence step by step with any
arithmetical exactitude.
(vi) In private defence the force used by the accused
ought not to be wholly disproportionate or much greater
than necessary for protection of the person or
property.
(vii) It is well settled that even if the accused does
not plead self-defence, it is open to consider such a
plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the
right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private
defence only when that unlawful or wrongful act is an
14offence.
(x) A person who is in imminent and reasonable danger
of losing his life or limb may in exercise of self
defence inflict any harm even extending to death on his
assailant either when the assault is attempted or
directly threatened.”
19. The first important question is whether the appellant-convict
at the relevant time was having a reasonable apprehension of death
or grievous hurt or danger to his property at the hands of the
deceased, and was justified in causing fatal injuries to the
deceased in his right of private defence; and the second question
would be that if the appellant was justified in causing injuries to
the deceased in his right of private defence, whether he had caused
more harm than it was necessary.
20. The Court should take an overall view of the case and if a
right of self-defence is made out from the evidence on record, that
right should not be construed narrowly because the right of self-
defence is a very valuable right and it has a social purpose.
21. As regards the first question, in the given circumstances, it
is difficult to discern any reasonable apprehension of imminent
danger on the part of the accused. The law is well settled in this
regard. The impending danger must be present, real or apparent.
According to the testimony of PW-1, an altercation occurred between
the deceased and the appellant’s father, leading to a ‘push and
pull’. Following this, the appellant’s father called for the
appellant. Upon arriving at the scene, bearing a knife, the
appellant found his father already holding the deceased by the
neck. These facts do not provide any basis to suggest that the
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appellant had a reasonable apprehension of imminent danger to
justify causing the death of the deceased. Moreover, the defense
argument claiming protection of property appears unfounded in this
context, as the facts do not support any imminent threat to the
appellant’s property.
22. What was the appellant-convict trying to protect? Was he trying
to protect the life of his father or his own life? Was he trying to
protect his property? To a very specific question put by us to the
learned counsel appearing for the appellant-convict in this regard
the reply was that the appellant-convict was trying to protect his
property. We tried to understand from the learned counsel as to
what was that imminent threat to his property that the appellant-
convict had to go to the extent of using knife and stabbing the
deceased to death. The oral evidence on record indicates that the
deceased wanted to put up a fence on the West side of his farm. The
compound of the deceased and that of the accused convict are
adjacent to each other. It is not the case of the appellant-convict
that the deceased trespassed into his own land and tried to put up
a fence. If that was the case, then the appellant-convict should
have led evidence in that direction. He should have put specific
questions in this regard to the prosecution witnesses more
particularly the eyewitnesses who were present at the spot. The
appellant-convict has failed to clarify as why he himself and his
father vehemently opposed putting up a fence by the deceased. This
aspect has not been explained by the appellant-convict even in his
further statement recorded under Section 313 of the CrPC. If that
be so, then why such hue and cry was raised on the issue of fence.
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23. In V. Subramani and Another v. State of Tamil Nadu reported
in (2005) 10 SCC 358, this Court went on to observe:
“…Situations have to be judged from the subjective
point of view of the accused concerned in the
surrounding excitement and confusion of the moment,
confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the
question as to whether more force than was necessary
was used in the prevailing circumstances on the spot
it would be inappropriate, as held by this Court, to
adopt tests by detached objectivity which would be so
natural in a courtroom, or that which would seem
absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat
to himself cannot be expected to modulate his defence
step by step with any arithmetical exactitude of only
that much which is required in the thinking of a man
in ordinary times or under normal circumstances.”
24. With this principle in mind, we turn to the second question:
whether the accused caused more harm than was necessary. The
testimony of the eyewitnesses provides critical insight into this
issue. As per the oral evidence, the accused even after inflicting
two stab wounds continued with the assault. This indicates that the
level of force used by the accused exceeded what was necessary for
self-defense. In the case of private defense, the actions taken
must be strictly preventive, aimed at averting the danger, rather
than punitive or retributive. The continued assault after the
initial injury demonstrates a disproportionate use of force, which
is inconsistent with the principle of self-defence. Even if we were
to assume that the initial actions were taken in self-defense,
although it is not the case, the subsequent assault reveals a shift
in the accused’s intention from protecting himself & his property
to inflicting harm and wrecking vengeance upon the deceased. This
shift indicates that the actions were no longer defensive in nature
17but became an act of aggression.
25. The learned counsel for the appellants has not set up before
us the right of private defence as a total defence.
His whole emphasis was with reference to Exception 2 to Section 300
that reads as follows:-
“Exception 2. – Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law and
causes the death of the person against whom he is exercising such
right of defence without premeditation, and without any intention
of doing more harm than is necessary for the purpose of such
defence.”
26. The existence of good faith is a must before the accused
claims benefit of this exception. While acting in good faith, if
the accused has exceeded the right of self-defence and caused death
of a person without pre-meditation and further he had no intention
to causing more harm than was necessary for the purpose of the
defence although in fact more harm was caused, yet the benefit of
Exception 2 to Section 300 may be available if the accused was not
the aggressor.
27. The presence of good faith as given in sec 52 IPC refers to
actions done in the absence of due care and attention. In this
instance, inflicting a murderous assault with a deadly weapon upon
the unarmed deceased and subsequently continuing to beat him, even
when the deceased fell to the ground, provides a clear indication
that the accused had not acted in good faith and had the intention
of causing more harm than was necessary.
18
28. Another essential for invoking Exception 2 is the lack of pre-
meditation. Such pre-meditation may be established by direct or
circumstantial evidence, such as previous threats, expression of
ill feelings, acts of preparation to kill, etc. It is clear from
the facts, that the accused was already bearing a knife when he
arrived on the scene after his father called him.
29. The burden of proving self-defence is always on the accused
but it is not as onerous as the one which lies with the
prosecution. Such burden can be discharged by probablising the
defence. The accused may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea
in the cross examination of prosecution witness or by adducing
defence evidence.
The principle as laid down by Section 105 Evidence Act is provided
as-
“105. Burden of proving that case of accused comes
within exceptions.—When a person is accused of any
offence, the burden of proving the existence of
circumstances bringing the case within any of the
General Exceptions in the Indian Penal Code (XLV of
1860), or within any special exception or proviso
contained in any other part of the same Code, or in any
law defining the offence, is upon him, and the Court
shall presume the absence of such circumstances.”
30. This Court in K.M. Nanavati v. State of Maharashtra reported in
AIR 1962 SC 605, laid down
“…But when an accused relies upon the general
exceptions in the Indian Penal Code or on any special
exception or proviso contained in any other part of the
Penal Code, or in any law defining an offence, Section
105 of the Evidence Act raises a presumption against
the accused and also throws a burden on him to rebut
the said presumption. Under that Section the Court
shall presume the absence of circumstances bringing the
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case within any of the exceptions, that is, the court
shall regard the non-existence of such circumstances as
proved till they are disproved. An illustration based
on the facts of the present case may bring out the
meaning of the said provision. The prosecution alleges
that the accused intentionally shot the deceased; but
the accused pleads that, though the shots emanated from
his revolver and hit the deceased, it was by accident,
that is, the shots went off the revolver in the course
of a struggle in the circumstances mentioned in Section
80 of the Indian Penal Code and hit the deceased
resulting in his death. The court then shall presume
the absence of circumstances bringing the case within
the provisions of Section 80 of the Indian Penal Code,
that is, it shall presume that the shooting was not by
accident, and that the other circumstances bringing the
case within the exception did not exist; but this
presumption may be rebutted by the accused by adducing
evidence to support his plea of accident in the
circumstances mentioned therein. This presumption may
also be rebutted by admissions made or circumstances
elicited by the evidence led by the prosecution or by
the combined effect of such circumstance and the
evidence adduced by the accused. But the Section does
not in anyway affect the burden that lies on the
prosecution to prove all the ingredients of the offence
with which the accused is charged : that burden never
shifts….”
31. This Court has further in Munshi Ram & Others v. Delhi
Administration reported in AIR 1968 SC 702, has observed that
“5. …It is well settled that even if an accused does
not plead self defence, it is open to the court to
consider such a plea if the same arises from the
material on record — see In re Jogali Bhaigo
Naiks [AIR 1927 Mad 97] . The burden of establishing
that plea is on the accused and that burden can be
discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material
on record.”
32. As outlined in the aforementioned authorities, the court
presumes the absence of circumstances that would justify a defense
claim, but this presumption can be rebutted by the accused. Courts
have consistently upheld the principle that even if private-defense
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is not formally pleaded, it may still be considered based on the
material available on record, with the accused bearing the
responsibility to substantiate it. In the present case, however,
given the facts presented, it is difficult to establish the defense
of private defense. The circumstances do not support a reasonable
apprehension of imminent danger that would justify the actions of
the accused, making it challenging to sustain the claim of self-
defense.
33. The argument of the learned counsel as regards Exception 4 to
Section 300 of the IPC should also fail. It may be that the
incident occurred at the spur of a moment and in the heat of
passion but we should not be unmindful of the fact that the
appellant herein had a knife with him whereas the deceased had
nothing with him. He was absolutely helpless at the time when he
was attacked. Therefore, this amounts to taking undue advantage or
acting in a cruel or unusual manner.
34. In the overall view of the matter, we are convinced that no
case is made out to interfere.
35. We are conscious of the fact that the incident is of the year
2007. We are also conscious of the fact that appellant herein was
in jail first as an under-trial prisoner and thereafter, as a
convict for a period of almost nine years. In such circumstances,
we leave it open for the appellant herein to prefer an appropriate
representation to the State Government for remission of sentence in
accordance with its policy. If the case of the appellant is falling
within the remission policy of the State of Kerala then the
authority concerned shall look into the same. The appellant is on
21
bail. He shall now surrender before the jail authorities to serve
his remaining sentence within a period of four weeks from today.
The bail bond stands cancelled.
36. The appeal is, accordingly, dismissed.
37. Pending application(s), if any, shall stand disposed of.
…………………………………………………………………………J.
[J.B. PARDIWALA]
…………………………………………………………………………J.
[R. MAHADEVAN]
NEW DELHI;
09th JANUARY 2025
22
ITEM NO.109 COURT NO.14 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1049/2018
RATHEESHKUMAR @ BABU Appellant(s)
VERSUS
THE STATE OF KERALA & ANR. Respondent(s)
Date : 09-01-2025 This appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE J.B. PARDIWALA
HON’BLE MR. JUSTICE R. MAHADEVANFor Appellant(s) Mr. Adolf Mathew, Adv.
Mr. Sanjay Jain, AOR
Mr. Sajjan Singh Nahar, Adv.
For Respondent(s) Mr. Nishe Rajen Shonker, AOR
Mrs. Anu K. Joy, Adv.
Mr. Alim Anvar, Adv.
Mr. Santhosh K., Adv.
UPON hearing the counsel the Court made the following
O R D E RThe appeal is dismissed in terms of the signed reportable
order.
Pending application(s), if any, shall stand disposed of.
(SAPNA BISHT) (POOJA SHARMA) COURT MASTER (SH) COURT MASTER (NSH)
(Signed reportable order is placed on the file)