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Attack on deceased, on vital parts, cannot be in private defence

The challenge in the present appeals is to a judgment dated 2.2.2016 maintaining conviction of the appellant – Mani for an offence under section 302, I.P.C., whereas, conviction of the other accused i.e., accused No.2- Rathnakumar, 3-Praveen and 4-Selvaraj was maintained for offences under section 324 and 341 read with 34, I.P.C. while acquitting the said accused for an offence under section 302, I.P.C.

Criminal Appeal No. 540 of 2019 is against the conviction of accused No.1 for an offence under section 302, I.P.C., whereas, Criminal Appeal No. 541 of 2019 is against the acquittal of accused No.2-Rathnakumar, 3-Praveen and 4-Selvaraj (respondent Nos. 2-4) under section 302 read with 34, I.P.C. The parties herein shall be referred to as before the Trial Court.

The entire prosecution case is based upon injured witnesses examined as P.W. 2-Vishwanathan of learned Senior Counsel for the appellant-Mani is that the appellant has received injury in the occurrence on 28.9.2005 as is made out from the Injury Report as Ex. D-2, wherein, he has stated that at about 7.30 p.m., he was beaten with stick by P.W. 2- Vishwanathan, Muhammad Ali, Manikandan, P.W. 3-Ashraf and about thirty other persons. The injury is lacerated wound 5 cms on forehead with fresh bleeding and contusion. It is thus contended that the appellant had acted in right of private defence, therefore, conviction of the appellant for an offence under section 302 cannot be sustained.

Hon’ble Dr. D.Y. Chandrachud and Hemant Gupta, JJ., have held that we do not find any error in the order passed by the High Court that there was no common intention in causing death of Soman. The prosecution has not produced any evidence showing that the accused were present at the place of occurrence at Chozhiyamkod or that they were part of the group creating trouble at that place. There is no evidence that any incident occurred at that place either of burning of sari due to fire crackers or of missing of flag. Therefore, genesis to the dispute has not been proved by the prosecution.

The victims were eight in number and in a jubilant mood to celebrate the victory of their party in the ‘panchayat elections.’ They decided to go towards Chozhiyamkod side. The accused suddenly came from the opposite direction on two motorcycles. One of the accused received injuries as well which fact is admitted by one of the witnesses P.W. 2- Vishwanathan also.

Be that as it may, the fact remains that all the injured witnesses have consistently deposed the death of Soman by the appellant. The injury received by the appellant is not serious, therefore, he could not have attacked the deceased on chest which is a vital part, as such as injury is likely to cause death. Therefore, the appellant is not entitled to right of private defence which does not extend to inflict more harm than it is necessary in exercise of right of private defence. Therefore, the plea that the appellant acted in his private defence is not made out.

In view of sudden fight without any premeditation, the conviction of the appellant for an offence under section 302 is not made out. The cause of death of the deceased is knife blow on the chest of the deceased – Soman. Such injury is with the knowledge that such injury is likely to cause death, but without any intention to cause death. Thus, the death of Soman is a culpable homicide not amounting to murder as the death has occurred in heat of passion upon a sudden quarrel falling within Exception 4 of section 300 of I.P.C. Therefore, it is an offence punishable under section 304, Part I, I.P.C.
Mani v. State of Kerala, 2019 (197) AIC 3 SC

Builder cannot seek to bind respondent with one sided contractual terms

The present statutory Appeals have been filed under section 23 of the Consumer Protection Act, 1986 to challenge the Final Judgment and Order dated 23.10.2018 passed in Consumer Case No. 238 of 2017 and Consumer Case No. 239 of 2017 by the National Consumer Disputes Redressal Commission (hereinafter referred to as “the National Commission”).
Since a common issue arises in both the Civil Appeals, they are being disposed of by the present common Judgment and Order.
For the sake of brevity, the facts in C.A. No. 12238 of 2018 are being referred to, being the lead matter.

The factual matrix of the said Civil Appeal is as under :

The appellant – Builder launched a residential project by the name “Araya Complex” in Sector 62, Golf Course Extension Road, Gurugram.

The respondent – Flat Purchaser entered into an Apartment Buyer’s Agreement dated 8.5.2012 with the appellant – Builder to purchase an apartment in the said project for a total sale consideration of Rs 4,83,25,280/-. As per Clause 11.2 of the Agreement, the appellant- Builder was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation, with a grace period of 180 days.

Hon’ble U.U. Lalit and Indu Malhotra, JJ., have held that a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

The contractual terms of the Agreement dated 8.5.2012 are ex-facie one sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 8.5.2012 were wholly one-sided and unfair to the respondent-Flat Purchaser. The appellant – Builder could not seek to bind the respondent with such one-sided contractual terms.

We also reject the submission made by the appellant- Builder that the National Commission was not justified in awarding Interest @ 10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation.

In Bangalore Development Authority v. Syndicate Bank, a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.

In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the respondent – Flat Purchaser.

The National Commission has rightly awarded Interest @ 10.7% S.I. p.a. by applying Rule 15 of the Haryana Real Estate (Regulation And Development) Rules, 2017 from the date of each installment till 5.2.2017 i.e., till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission’s final Order till the date on which the amount is refunded with Interest.

Pioneer Urban Land and Infrastructure Ltd v. Govindan Raghvan, 2019 (197) AIC 122 SC

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