CRL A/238/1998 of RAJAN A1 Vs INSPECTOR OF POLICE on 19 December 2002

:JUDGMENT

P.D.DINAKARAN,J.

The appellant herein along with his father second accused were triedas first accused and second accused respectively in S.C.No.1 of 1995 by thelearned Principal Sessions Judge, Tuticorin for the offence punishable underSection 302 I.P.C. committed by the first accused and for the offencespunishable under Sections 324 and 302 read with 34 I.P.C. committed by thesecond accused at about 1.30 pm on 31.10.1992 at Palayakayal Village withinthe jurisdiction of the Police Station at Eral, Tuticorin District. While thefirst accused was found guilty of the offence punishable under Section 302I.P.C., convicted for the same and sentenced to undergo imprisonment for life,the second accused was found not guilty of the charges framed against him andtherefore, acquitted, by judgment dated 27.1.1998 made in S.C.No.1 of 19 95 bythe learned Principal Sessions Judge, Tuticorin, aggrieved by which, the firstaccused has preferred the above appeal.

2. For the sake of convenience the parties are described as per theirrank in the Sessions Case.

3.1. The prosecution case is that: The first accused, who was already married, eloped with Antoniammal, who is the younger sister ofdeceased Mathiazhagan, and was living with her in a hut at PalayakayalVillage, along with his first wife and sister by name Vijaya, which is veryclose to that of the deceased Mathiazhagan, who was living with his anothersister Tamilarasi (P.W.1), his mother Innasiammal (P.W.3 ), elder brotherSekar (P.W.8) and his wife Pitchakani (P.W.2). These facts are not indispute.

3.2. On 31.10.1992, at about 1.30 P.M., there was a quarrel between P.W.3 and Vijaya (sister of the first accused) at the street pipe, which islocated near the house of the first accused. On hearing the quarrel, P.W.1and her brother Mathiazhagan went near the street pipe. At that time, thefirst accused and the second accused came to the street pipe armed withpitchuva knife and aruval respectively. The second accused cut P.W.1 with anaruval, and as a result, P.W.1 got an injury on her right hand little finger.When Mathiazhagan came to the rescue of P.W.1, the first accused stabbedMathiazhagan from his back with pitchuva knife. Mathiazhagan turned towardsthe first accused. In the meanwhile, the first accused again stabbedMathiazhagan with the pitchuva knife on his left chest. Mathiazhagan tried tosnatch the pitchuva knife from the first accused and the same was resisted bythe first accused but got injured on his right thumb. Having snatched thepitchuva knife from the first accused, Mathiazhagan stabbed the first accusedon his chest. At that time, the second accused tried to cut Mathiazhagan onhis leg with the aruval but the cut got slipped, and fell on the leg of thefirst accused. After the scuffle, Mathiazhagan fell down unconsciously.

3.3. P.W.1 to P.W.3 took the injured Mathiazhagan to the road sideand boarded the Kattabomman Transport Corporation bus to take him to theGovernment Hospital, Tuticorin. But, since the condition of Mathiazhaganbecame serious on the way, he was shown to a private medical practitioner,Dr.Dharmaraj (P.W.11), at Athimarapatti Vilakku, who declared Mathiazhagandead.

3.4. The injured first accused and P.W.1 were also taken to theGovernment Hospital, Tuticorin in the same bus. Dr.Jayakumar (P.W.5) admittedand examined the first accused and issued the accident register marked asEx.P5. P.W.1, who got injured during the scuffle between the first accusedand Mathiazhagan, also got admitted and examined by Dr.Jayakumar (P.W.5), whoissued the accident register marked as Ex.P4.

3.5. After Mathiazhagan was declared dead, P.W.1 and P.W.8 went toEral Police Station, gave a statement marked as Ex.P1 signed by P.W.1 andattested by P.W.8.

3.6. Based on the statement marked as Ex.P1, P.W.10, the Sub Inspector of Police, Eral Police Station, registered the F.I.R., marked asEx.P.16 in Crime No.707 of 1992 against the first accused for the offencepunishable under Section 302 IPC and against the second accused for theoffences punishable under Sections 324 and 302 read with 34 IPC.

3.7. On a requisition from the Inspector of Police, marked as Ex.P2, Dr.Ramasubramanian, Civil Assistant Surgeon, Government Hospital, Tuticorin(P.W.4) conducted post mortem on the body of the deceased Mathiazhagan, andissued the post mortem certificate marked as Ex.P3.

3.8. Based on the F.I.R. marked as Ex.P16, the Inspector of Police, Tuticorin Central Police Station, who was also in charge of the Eral PoliceStation at that time, viz., the investigating officer (P.W.15), visited thescene of occurrence at 1700 H on 31.10.1992 and prepared an observationmahazar marked as Ex.P10 from the place where the dead body was lying and alsoprepared a rough sketch of the scene of occurrence, marked as Ex.P23, in thepresence of the Village Administrative Officer (P.W.7) and his Thalayari; andalso recovered pitchuva knife (M.O.1), blood stained portion of tar road(M.O.3 series), sample tar road portion (M.O.4 series), one blood stainedwhite towel (M.O.6), and one blood stained white dhothi (M.O.7) from the sceneof occurrence.

3.9. On 1.11.1992, P.W.15 went to the Government Hospital, Tuticorin,examined the first accused and recorded his statement and on the same day, healso examined Dr.Dharmaraj (P.W.11), Pandaram, Village Administrative Officer(P.W.7) and his Thalaiyari.

3.10. In the meanwhile, since the regular Inspector of Police, EralPolice Station, viz., P.W.16 returned to duty, P.W.15 handed over the furtherinvestigation to P.W.16.

3.11. On 9.11.1992, on an application by P.W.16 during his furtherinvestigation into the case, the Judicial Magistrate, Srivaikuntam, remandedthe first accused for fifteen days and also ordered for security to the firstaccused in the hospital.

3.12. On 10.11.1992, P.W.16 arrested the second accused at Palayakayal busstop in the presence of the Village Administrative Officer, Koilraj (P.W.9)and his Thalaiyari. On a voluntary confession by the second accused, P.W.16recovered a palaai aruval (M.O.2).

3.13. P.W.16 sent the case properties for chemical analysis, obtained theChemical Examiner's report, marked as Ex.P8 and the Serologist' s report,marked as Ex.P9.

3.14. Based on the investigation, a final report was prepared on 5.6.1993 andthe accused were tried by the learned Principal Sessions Judge, Tuticorin.

3.15. After the examination of the prosecution witnesses, accused 1 and 2were questioned under Section 313, Cr.P.C. The first accused stated that itwas only the deceased who came with a knife and stabbed the first accused, andduring the course of scuffle by rolling, both the first accused and thedeceased got injured. The second accused stated that he did not know anythingabout the occurrence, as he was at Sarvodaya Office at the time of theoccurrence.

4. On appraisal of the evidences on record, the trial Court found thefirst accused guilty of the charge for the offence punishable under Section302, I.P.C., but acquitted the second accused. Hence, the above appeal.

5.1. Mr.G.R.Edmund, learned counsel appearing for the first accused, took us through the evidence available on record as well as the judgment ofthe trial Judge and contends that:

a.the trial Court, having disbelieved the evidence of P.Ws.1, 2 and 3 , inview of the contradictions in their evidence and acquitted the second accused,ought to have applied the same yardstick while dealing with the charge framedagainst the first accused and held that the prosecution failed to establishthe charge framed against the first accused beyond reasonable doubts, andacquitted the first accused as well; b.the non-examination of independent witnesses, viz., Patturaj and Johnson,also renders the prosecution case unbelievable. The false implication of thesecond accused by P.Ws.1, 2 and 3, as found by the trial Court, renders theirevidence doubtful; c.the non-explanation of the injuries sustained by the first accused at orabout the time of occurrence, throws a serious doubt on the evidence of P.Ws.1, 2 and 3, as the same are not trust-worthy; d.the failure on the part of the prosecution to register the complaint lodgedby the first accused and to investigate into the matter to find the realaggressor to the scuffle, is a serious lapse on the investigation made by theprosecution, which goes to the root of the issue to doubt the very genesis ororigin of the occurrence, and therefore, vitiates the conviction; ande.in any event, the prosecution ought to have accepted the plea of privatedefence made by the first accused in his statement made under Section 313Cr.P.C.

5.2. Mr.G.R.Edmund, further contends that the occurrence, having taken place in a broad day light between 1.30 pm and 2.00 pm on 31.10.19 92 inthe main road near the public tap by the side of the bunk shop belonging toPatturaj, where Patturaj and Johnson, were standing along with the otherpublic, and these facts were expressly mentioned in the statement made byP.W.1, viz., Ex.P1, the non-examination of any of such outsiders as witnesses,particularly Patturaj and Johnson, from whom statements were said to have beenobtained by the Investigating Officer, renders the prosecution caseunbelievable, as the sole testimony of P.Ws.1, 2 and 3, who are interestedwitnesses, could not be relied upon for the safe conviction of the firstaccused.

5.3. To buttress this argument, Mr.G.R.Edmund brought to our noticethat P.Ws.1, 2 and 3 are interested witnesses for two reasons, viz., (i) theyare related to the deceased; and (ii) they are inimical to the accused, whohad eloped with Antoniammal, who is nonetheless the sister of P.W.1, sister inlaw of P.W.2 and daughter of P.W.3.

6. In answer to the contentions made on behalf of the firstaccused/appellant, Mr.A.Navaneethakrishnan, learned Additional PublicProsecutor contends that:

(a) the trial Court rightly convicted the first accused based on the ocular evidence of P.Ws.1, 2 and 3;

(b) the non-examination of any outsider would not be, in any way, fatal to theprosecution case, which is fully supported by the ocular evidence of P.Ws.1, 2and 3. Merely because of the fact that P.Ws.1, 2 and 3 are closely related tothe deceased and that there was a strained relationship between the family ofthe deceased and the accused, the evidence of the eye-witnesses would not loseits value and trustworthiness, as they corroborate with the other materialevidence on record, such as the evidence of the mahazar witness - P.W.7, themedical evidence of P.W.4 read with Ex.P3 as well as the evidence of theInvestigating Officers - P.W15 and P.W.16;

(c) even though P.Ws.1, 2 and 3 are closely related, the mere contradictions,inconsistencies, by themselves, would not, render their evidence unreliable;(d)the non-registration of the complaint lodged by the first accused, wouldnot, by itself, lead to the conclusion that the prosecution case must bediscarded, as it is clear from the medical evidence that the injuries found onthe accused are superficial, but not as grievous as the injuries caused by theaccused on the deceased, which resulted in the death of the deceased. Thefailure to register the complaint by the Investigating Officer, therefore,shall not assume any significance to suggest any serious lapse in theinvestigation of the case; and (e)in any event, the plea of private defence could not be based on surmise andspeculation; nor the same could surpass the ocular evidence supported by themedical evidence, based on which, the first accused was held guilty of theoffence punishable under Section 302 I.P.C.

7. We have given our careful consideration to the submissions of both sidesin the light of the materials available on record.

8.1. The conviction of the first accused rests on the ocular evidence of P.Ws.1, 2 and 3. It is true, P.Ws.1, 2 and 3 are closely related to thedeceased and there was strained and inimical relationship between the familymembers of the accused on the one hand and that of the deceased on the other.Therefore, the testimony of P.Ws.1, 2 and 3 , in our considered opinion, needscareful scrutiny.

8.2.1. According to P.W.1, it was the second accused who first attacked P.W.1 with an aruval, which caused an injury on her little finger.The medical evidence of P.W.5 read with Ex.P4 ensures the injury on the littlefinger of P.W.1.

8.2.2. P.W.1 deposed that when her brother (deceased Mathiazhagan) came toher rescue, the first accused stabbed the deceased firstly on his back,thereafter on his chest and in the meanwhile, the deceased attempted to snatchthe knife from the first accused and during the process first accusedsustained an injury on his thumb. But, there is no corresponding injury onthe thumb of the first accused as per the medical evidence of P.W.5 read withEx.P5, as the first accused had sustained only an injury on his chest, namelyincised bleeding wound on his right chest 6th space transverse 2« x « c.m.muscle depth.

8.2.3. P.W.1 further deposed that the first accused snatched the knife from her brother (deceased Mathiazhagan) and stabbed again on the chestof the deceased, and by then, the second accused attempted to cut the leg ofthe deceased with an aruval, but the same slipped and fell on the leg of thefirst accused. Again, there was no such corresponding injury on the leg ofthe first accused, as per the medical evidence of P.W.5 read with Ex.P5.

8.2.4. In the cross-examination, P.W.1 identified the knife (M.O.1), which was said to have been used for the commission of the offence.According to the recovery Mahazar witness P.W.7, M.O.1 was recovered by theInvestigating Officer (P.W.15) from the place of occurrence in his presenceunder the recovery mahazar - Ex.P13 and the length of the said knife (M.O.1)was 10 inches, half of which contained blood stains. But, as per the reportof the Chemical Examiner, Forensic Laboratory, marked as Ex.P8, there was noblood stain on the knife (M. O.1).

8.3.1. P.W.2 is the sister-in-law of the deceased who also deposed that it was second accused, who started the attack with an aruval on P.W.1, onaccount of which P.W.1 sustained an injury on her little finger. Even thoughP.W.2 also would state that when the second accused attacked the deceased onhis leg, the same slipped and fell on the leg of the first accused, there isno such corresponding injury on the leg of the first accused as per themedical evidence of P.W.5 read with Ex.P5, as observed earlier.

8.3.2. Even though, in the cross-examination of P.W.2, she would state that the first accused snatched the knife from the hands of thedeceased, there is no proper explanation from P.W.2 as to how the deceasedcame to be in possession of the knife. However, P.W.2 confirmed that thefirst accused attempted to snatch the knife from the hands of the deceased andboth of them scuffled, which would prove that the deceased was in possessionof the knife.

8.4.1. P.W.3, the mother of the deceased, also states that the second accused alone gave the first cut with his aruval on P.W.1, as a result ofwhich, P.W.1 sustained an injury on the little finger.

8.4.2. P.W.3 admitted that Johnson accompanied P.Ws.1 to 3 while taking thedeceased to the hospital, which corroborates with the evidence of P.W.15 thatPatturaj and Johnson were eye-witnesses.

8.5. Accordingly, there were contradictions and inconsistencies pointed outby the defence as hereunder:

(i) the contradictions with reference to the presence of outsiders, for example, Patturaj and Johnson, who were not examined as independent witnesses,in spite of obtaining their statements, as the occurrence had taken place inthe broad day light in a public place, viz., near the street pipe on the mainroad and witnessed by the public;

(ii) the contradictions with reference to the overt act said to have beencommitted by the first and second accused on the deceased as well as P.W.1;(iii)the contradictions with reference to the false implication of the secondaccused in the alleged crime, which creates a serious doubt in the evidence of the eye witnesses, namely, P.Ws.1, 2 and 3;

(iv) the inconsistency with reference to the injuries said to have been causedon the first accused, viz., on his right thumb and leg, as there was no suchcorresponding injury on the first accused as per the evidence of P.W.5 readwith Ex.P5; and

(v) the contradictions with reference to the blood stained pitchuva knife -M.O.1 used for the commission of the crime was seized by P.W.15 in thepresence of P.W.7, as no such blood stain was found on the said knife, as perthe chemical examiner's report marked as Ex.P8.

8.6. Of course, it is a trait law that mere contradictions, inconsistencies, exaggerations and embellishments, much less the minute variations in narratingthe incidents, by themselves would not militate the trust-worthiness of thenarration made by them with respect to the incident, as some difference in themode of narrating the incident is bound to arise when an incident is narratedto different persons on different occasions.

8.7. However, in our considered opinion, the exaggeration and embellishmentin the evidence of P.Ws.1, 2 and 3 for having chosen to rope in the secondaccused, falsely implicating him in the crime, whose very presence in thescene of occurrence was rightly disbelieved by the trial Court, renders theirevidence as abnormal.

8.8. From the above critical analysis, it is clear that P.W.1 is an injuredwitness. She is the elder sister of the deceased Mathiazhagan. The presenceof injuries on P.W.1, as supported by the medical evidence namely P.W.5 readwith Ex.P4 ensures her presence on the spot at the time of the occurrence.Hence, we are obliged to attach sanctity to the testimony of her witness.However, the false implication of the second accused, who is found to be aninnocent person by the trial Court, which remains unchallenged, creates aserious doubt in the testimony of P.Ws.1, 2 and 3, even though the injuredwitness will never leave the real culprit.

8.9.1. Of course, the occurrence had taken place in broad day light, near thepublic tap on the main road, which is located near a bunk shop where outsidepublic were very much present and statements were said to have been obtainedby the Investigating Officer from some of them, viz., Johnson, who could benatural witness. Even though it is not clear as to why the prosecution failedto examine any of such outsiders as independent witnesses, we do not see anylapse on the part of the prosecution in that regard at all, as it is thechoice of the prosecution to examine the witnesses who unfold the story of theprosecution.

8.9.2. The Apex Court in AMBIKA PRASAD Vs. STATE (DELHI ADMN.) reported in(2000) 2 SCC 646 while holding that non-examination of independent witnessesby itself cannot be a ground for rejecting the evidence of witnesses who wereinjured in the occurrence held as follows:

"Independent persons are reluctant to be witnesses or to assist theinvestigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat andthey dare not depose the truth before the court, independent witnesses believethat their safety is not guaranteed. That belief cannot be said to be withoutany substance. Another reason may be the delay in recording the evidence ofindependent witnesses and repeated adjournments in the court. In any case, ifindependent persons are not willing to cooperate with the investigation, theprosecution cannot be blamed and it cannot be ground for rejecting theevidence of injured witnesses."

8.9.3. That apart, where the accused and deceased scuffled with each otherwith a deadly weapon, namely Pitchuva knife, certainly such action would deterthe independent persons from the public to be a witness. Hence, in ourconsidered opinion, the mere non-examination of such outsider as witnesses,namely Patturaj and Johnson, by itself, would not be fatal to the prosecutioncase.

8.10. One another aspect of the case of the prosecution, which deserves to becritically viewed by us is the failure to register the complaint lodged by thefirst accused, who concedingly sustained injuries and was admitted in thehospital by P.W.5 vide the accident register marked as Ex.P5 and was treatedas an in-patient for a minimum period of ten days from the date of theoccurrence, during which period, he was remanded by the learned JudicialMagistrate, Srivaikuntam in the hospital itself. No proper explanation waselucidated from the medical witness, viz., P.W.5 as to why the first accusedwas treated as an in-patient for a considerable minimum period of ten days,even though the injury found on his chest, as per Ex.P5, was opined by P.W.5as simple in nature; nor the doctor - P.W.5 had opined that the injury foundon the first accused, as certified in Ex.P5, was selfinflicted even though theprosecution is under a duty to explain the injuries on the accused persons.

8.11. The contradictions and inconsistencies referred to above, therefore,would require a closer scrutiny of the evidence of these witnesses who werenatural witnesses and had full opportunity to watch the incident which tookplace in broad day light. It cannot also be forgotten that they would see toit that the real culprits do not escape. From the overall picture it can besafely accepted that they were present at the incident of violence between theaccused and the deceased. Their evidence to a limited extent will have to beaccepted. All the three witnesses, namely P.Ws.1, 2 and 3, consistentlysupport the prosecution case unfolded in the F.I.R. with respect to the overtact by the first accused and the grave injuries caused on the deceasedMathiazhagan by using a deadly weapon, and their evidence corroborates withthe medical evidence of P.W.4 read with Ex.P3. It is the duty of criminalCourt to separate chaff from the grain. In this case the witnesses may haveexaggerated the role of second accused but their evidence as against the firstaccused has not been shaken at all. We can safely hold that the first accusedwas the author of injuries on the deceased and thus caused his death.

8.12.1. It is well settled principle in law, vide UGAR AHIR & OTHERS Vs. THESTATE OF BIHAR reported in AIR 1965 SC 277 and NATHU SINGH YADAV Vs. STATE OFMADHYA PRADESH reported in JT 2002 (9) SC 591, that:"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly onecomes across a witness whose evidence does not contain a grain of untruth orat any rate exaggerations, embroiders or embellishments. It is therefore, theduty of the Court to scrutinize the evidence carefully and, in terms of thefelicitous metaphor, separate the grain from the chaff. But, it cannotobviously disbelieve the substratum of the prosecution case or the materialparts of the evidence and reconstruct a story of its own out of the rest."

8.12.2. By a closer appreciation of the evidence of P.Ws.1, 2 and 3, we are,therefore, obliged to accept the evidence of P.Ws.1, 2 and 3 to the extentthat the first accused caused serious and grave injuries on the deceasedMathiazhagan. Therefore, neither the nonexamination of independent witnessesnor the non-explanation of the injuries on the accused persons does notnecessarily lead to a conclusion that the entire prosecution case is false andmust be thrown out.

8.13.1. Of course, the omission on the part of the prosecution to explain theinjuries on the accused assumes greater importance where the evidence consistsof interested and inimical witnesses or where the defence gives a version,which competes in probability with that of the prosecution one, as held by theApex Court in LAKSHMI SINGH Vs. STATE OF BIHAR reported in AIR 1976 SC 2263.

8.13.2. It is under such circumstances, the statement of the first accusedmade under Section 313 Cr.P.C., describing the incriminating circumstanceunder which the fateful death of deceased Mathiazhagan had been caused, namelyit was the deceased who came with a knife and stabbed the first accused, andduring the course of scuffle by rolling, both the first accused and thedeceased got injured, and his pleading private defence deserves ourconsideration. Of course, as usual, a complete plea of private defence is notraised by the first accused. The plea is halting. We would, therefore, haveto consider whether the first accused was justified in causing injuries to thedeceased. The learned defence counsel at this appellate stage, however, urgedthat the deceased was an aggressor and as such the benefit of the right ofprivate defence could be granted to the accused and claimed an acquittal ofthat account.

8.14. The right of private defence to a person cannot be weighed in goldenscales. The persons who are victims of aggression cannot be expected tojudiciously weigh in golden scales the quantum of force which they are to useso long as the force used to combat aggression is not unduly excessive. Solong as the force used to combat aggression is not unduly excessive, it wouldbe a wrong judicial approach to hold that the right of private defence of aperson has been exceeded. Mr.G.R.Edmund, therefore, contends that, at thespur of the moment, the accused, who resisted the attack of the deceasedaggressor, could not have rationally and judiciously weighed the quantum offorce ought to have been used by him for his private defence. We are unableto appreciate the same.

8.15. Assuming, the first accused, who pleads the right of private defence,need not prove it beyond reasonable doubt, even though the right of private defence was not pleaded by the first accused in so many words in his statementunder Section 313 Cr.P.C., it is enough to apply the test of preponderance ofprobability and therefore, the burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Courtthat the version disclosed by him in the facts and circumstances of the caseis probable.

8.16. But, the right of self-defence pleaded by the first accused cannot beaccepted as a matter of course in abstract, based on surmise or speculation,but the same has to be tested in the light of the evidence of P.Ws.1, 2 and 3to the extent which corroborates with the evidence of P.W.5 read with Ex.P3,and therefore, we are obliged to compare the injuries found on the body of thedeceased, as evident from Ex.P3, and the injury found of the first accused, asevident from Ex. P5.

8.17. In this connection, we are obliged to extract the relevant portion of Ex.P3, viz., the post mortem certificate, which reflects the injuries causedon the body of the deceased as well as Ex.P5, which contains the injury causedon the body of the first accused:

Ex.P3 - Post Mortem Certificate:

External Injuries:

1. Incised wound left 7th inter coastal space 5 cm away from mid sternum 2 cm x

1 cm x 1.5 cm size elliptical in shape and subcutaneous depth blood-stains.2.An incised wound elliptical shape 3 x 2 x 1 cm subcutaneous depth (L) 10thintercoastal space 8 cm away from mid spinal level of bloodstains.

3. Abrasion 5 x 0.5 cm blood-stains on the posterior auxiliary line along (L)8th intercoastal space.

4. Cut injury 1 x 0.1 x 0.2 cm superficial shape depth and bloodstains onlateral upper arm 10 cm below shoulder joint.

5. Lever abrasion 4 x 0.5 x 0.1 cm over left shoulder joint.Internal examination:Opening thorax: Hyoid intact6.Linear fracture in left 6th and 7th ribs along the costocondrial junctionand blood clots of 10ml over the corresponding intercoastal muscle.(Corresponding to wound 1 described above)

7. Incised penetrating wound 4 x 1.5 cm x 0.5 cm over the left hemidiaphragm.(Corresponding to wound 6 vide supra).

8. Punctured wound along the lever lobe of left lung measuring 4 cm x 1.5 cm x0.5 cm (corresponding to wound 7 vide supra). Heart: Weight 300 grams cutsection uniformly pale. Lung: Normal weight cut section pale. Abdomen:Peritoneal cavity filled with 2 litres of partially clotted blood. Liver:Normal weight.

9. Incised wound elliptical shape 8 cm x 0.5 cm x 1 cm in the upper part ofleft lobe of liver (corresponding to wounds vide supra).

Ex.P5: Accident Register:

1. Incised bleeding would right chest 6th space transverse 2« x « c.m. muscledepth.

8.18. A careful analysis of the ocular evidence of P.Ws.1, 2 and 3, weighedin the light of the medical evidence, referred to above, aids us to hold thatthere was a scuffle between the deceased and the first accused, and the deadlyweapon was used during the scuffle. Looking at the nature of the injurycaused on the accused party, it appears to us that the said injury could notbe self-inflicted or suffered from a friendly hand, because, even though themedical evidence, viz., P.W.5 had opined that the said injury cast on thefirst accused was simple in nature, had it been little deeper, the same wouldhave been very grave in nature, as it would have pierced through the lung, asopined by the medical evidence of P.W.5, and therefore, the first accusedwould not have had a mere apprehension, but he would have had a reasonableapprehension. Under those circumstances, we are convinced that the appellantacted on apprehension that a grievous hurt or death could have been caused tohim. However it is obvious that the accused has clearly exceeded his limits.He did not stop inflicting the blows.

8.19. Injuries 1, 2, 4, 6, 7, 8 and 9, referred to in Ex.P3 above, as foundon the deceased, speak by themselves as to the grave nature of the same,whereas, the injury found on the first accused was simple in nature. Sincethe force used by the first accused to combat the aggression is undulyexcessive, it would be a wrong judicial approach to accept the defence putforth by the first accused in toto.

8.20. We are, therefore, of the considered opinion that even though the pleaof private defence put forth by the first accused is probable and thereforeacceptable, the first accused had exceeded such right, as the right of privatedefence could not be extended to inflict more harm than was necessary for thepurpose of defence, as comparatively evident from Exs.P3 and P5, referred toabove.

9. For the above reasons, while we are obliged to accept the plea of privatedefence, we are satisfied that the first accused had exceeded the right ofprivate defence in causing more harm to the deceased than what was necessary,which resulted in the death of the deceased. Hence, the conviction andsentence of the appellant under Section 302 I.P.C. is set aside, but theappellant is convicted under Section 30 4 Part I, I.P.C. and sentenced forrigorous imprisonment for ten years, which, according to us, would meet theends of justice.

The appeal is, therefore, allowed in part to the extent indicated above.

Index : YesInternet : Yes

sasi/ksv

To:1. The Principal Sessions Judge,Tuticorin.

2. State, rep. by Inspector of Police,

Eral Police Station.

3. The Public ProsecutorHigh Court, Madras.