Rajan s/o Sankaralingam v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938 CRL.A.No. 1765 of 2011 (A) --------------------------AGAINST THE JUDGMENT IN S.C.NO.184/2010 OF THE COURT OF III ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA DATED 12-07-2011 APPELLANT/ACCUSED: ------------------------ RAJAN, S/O.SANKARALINGAM, AGED 35 YEARS, ISSAKKI BHAVAN, SINKUKANDAM BHAGUM, POST-SOORYANELLI, SOORYANELLI KARA, CHINNAKANAL VILLAGE, IDUKKI DISTRICT (NOW IN), CENTRAL PRISON, POOJAPPURA, TRIVANDRUM. BY ADVS.SRI.K.P.RAMACHANDRAN SRI.M.M.ABDUL RAHIMAN SMT.BINDHU PAULOSE SRI.R.SUDHISH RESPONDENT/STATE COMPLAINANT: ---------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. ## BY SP. PUBLIC PROSECUTOR SMT.AMBIKA DEVI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------Crl.A.No.1765 of 2011 ------------------------------------Dated 29[th] November, 2016 ## **JUDGMENT** ## **Jyothindranath, J.** The appellant herein is none other than the husband of Rameswary, who was murdered in this case. On 9.2.2008 at 7 a.m. Rameswary was seen murdered by PW1. A crime was registered as Crime No.30 of 2008 at Munnar Police Station. It was investigated by the Circle Inspector of Police and a charge was laid. The Charge was taken on file by the Court of Judicial First Class Magistrate, Devikulam and committed to Court of Sessions by its proceeding in C.P.No.13 of 2010. The Sessions Court, Thodupuzha took cognizance of the offences punishable under Section 302 of the Indian Penal Code. Ultimately, after the trial, as per the impugned judgment he was found guilty and upon conviction he was sentenced to undergo rigorous imprisonment for life and to pay a fine of 5,000/- with a default imprisonment for₹ one year, under Section 302 of IPC. Aggrieved by the said conviction and sentence this appeal is preferred. 2. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before us that in this Crl.A.No.1765 of 2011 2 case, even though prosecution examined 23 witnesses and marked 24 documents practically, no reliable or cogent evidence was adduced by the prosecution to establish their case. It is the submission that when the prosecution evidence is scanned, from the registration of the F.I. Statement till the charge sheet was filed, it can be seen that the whole case is clouded under suspicion. It is the submission that the defence examined DW1 to DW3 and marked Exts.X1 to X6 which will show that the appellant also sustained very grievous injuries which are not explained by the prosecution. Ordinarily, non-explanation of a minor injury may not be fatal. But, in a case where the accused specifically takes a legal defence, that is, the private defence, such a nonexplanation will be fatal. It is also submitted that the earliest case of the prosecution can be seen from Ext.P1 which is a marked document. As per the said document, the case of PW1 is that when she left the house wherein Rameswary was seen murdered, it was only 8 p.m. But, when she was examined before the Court, her version was that she left the house at 10 p.m. The difference in time is a material fact in appreciating the evidence of PW1. It is also the submission that even though the prosecution case is that, the Police obtained the first information from PW1, when she was cross examined, she categorically admitted that she went to the police station as she was summoned to Crl.A.No.1765 of 2011 3 the police station. She categorically admitted that three policemen came to her house and told her to reach Marayoor Police Station. Then only, she went to the police station. It is also pointed out by the learned counsel that now, as per Ext.P1, it can be seen that the Police received the information regarding the crime at 9 a.m. on 9.2.2008. But, the prosecution documents itself will belie the case of the prosecution. The appellant was seen treated at Tata Tea Limited General Hospital, Munnar on 9.2.2008 at 6.20 a.m. The doctor who was examined as PW20 categorically deposed before the court that the appellant was brought therein by policemen. This cannot be a false evidence especially in the light of Ext.P17(b) wherein it is recorded so. It is also the submission that the prosecution is heavily relying upon the recovery of so called MO1 weapon. But, the recovery itself is suspicious since as per the disclosure statement, what was stated is:- “while he was going to the police station.” If the said version is believable, it is an indication that the accused went to police station even before he was taken to the doctor. If that is so, what was the information given to the police at the earliest point of time ? It appears that the said version is suppressed by the Police. Surely, it may be inadmissible if it is a confessional statement. But, even then, by virtue of Section 8 of the Evidence Act, the said statement could have been brought to light by Crl.A.No.1765 of 2011 4 the Police. The specific submission of the learned counsel is that the said statement is not before the Court as it will be against the prosecution case. Then, the learned defence counsel brought to our notice that the positive case of the defence is that of private defence. In support of the said defence, Exts.X1 to X6 and Ext.P17(b) are brought to our notice. It is stated that the injury on the palm area and tendon injury are grievous in nature and it will give the right of private defence. It is the categoric case of the counsel for the appellant that as the appellant was called up on the said date and when he came and stayed there upon compulsion and in the night he was attacked that too, by using a newly purchased chopper, as per the evidence of PW1, the circumstances will show that the appellant is entitled to take shelter under private defence. 3. The learned public prosecutor submitted before us that in this case, the court charge is that “in between 10 p.m. on 8.2.2008 and 7 a.m. on 9.2.2008 at the building bearing No.MGP.XII/44-10 situated at Mankalampara in Marayoor Village, the appellant committed murder by intentionally causing the death of his wife Rameswary and thereby committed an offence punishable under Section 302 of IPC.” It is submitted before us that Rameswary was murdered or the death was Crl.A.No.1765 of 2011 5 a culpable homicide is not under challenge. The doctor who conducted postmortem on the body of Rameswary was examined as PW14 and the said postmortem certificate was marked as Ext.P11. Ext.P11 will reveal that there were 8 antemortem injuries. The categorical evidence of the doctor is to the effect that injury Nos.1 to 3 and 5 to 8 are grave injuries and further deposed before the Court that injury No.8 is independently sufficient in the ordinary course of nature to cause death. It is also submitted before us that injury No.8 is a “chop wound on right side and front of neck 8 x 5 c.m transverse, 8.c.m above angle of luis. The wound cut the skin, subcutaneous tissue sternocleidomastoid muscle, the jugular vein and the external and internal carotid arteries of right side. The wound cut separated the vertebral column with spinal cord at the junction between 3[rd] and 4[th] vertebrae with transection of right vertebral artery.” Thus, it can be seen that the said injury even separated the vertebral column with spinal cord at the junction between 3[rd] and 4[th] vertebrae. No need to say that it is a fatal injury which will cause death instantaneously. The doctor further deposed before the court that these antemortem injuries can be caused by MO1 weapon. It is the further submission of the prosecutor that MO1 is a weapon recovered by the Police on a disclosure statement given by the appellant on his own. The said recovery need not be doubted even Crl.A.No.1765 of 2011 6 though the independent witnesses may not be supporting the same. But, at the same time, it is to be remembered that the trend of cross examination of the defence also will indicate that they are not challenging the recovery of the weapon from the place of concealment. It is also the submission that PW23, who is the investigating officer, categorically deposed before the court that on an information received from the appellant and as he led, they reached at the place of concealment and recovered the same. The said aspect need not be doubted. If the recovery is reliable and when the doctor deposed before the court that MO1 can cause the antemortem injuries seen on the deceased, it can be safely concluded that the custodian of the weapon is the person who inflicted the injuries. It is also the submission of the learned prosecutor that in this case, it is to be remembered that as per the evidence of PW1, the only persons in the house on the fateful day were the deceased as well as the appellant herein. When the appellant and the deceased were the only inmates, by virtue of Section 106, it will be on the exclusive knowledge of the appellant herein and burden thereon is on his side. The specific case of the appellant is a private defence. While he was questioned, he took a specific stand to the effect that he snatched a weapon from the deceased and wielded the same. But, the case of the appellant will not Crl.A.No.1765 of 2011 7 inspire confidence especially when there are 8 numbers of injuries on the body of the deceased. It is to be remembered that the deceased is a woman whereas, the appellant is a male. It is the further submission of the learned counsel that here surely, it is a case of circumstantial evidence and the chain of circumstances are proved by the prosecution in this case. By examination of PW1 it is proved by the prosecution that on the night of 8.2.2008 while PW1 was returning from the house the only persons in the house were the deceased as well as the appellant. The last seen theory will be squarely applicable in this case and in the next morning when PW1 came to the house of the deceased she saw the corpse of Rameswary in a pool of blood. Now, the prosecution also examined PW15. He was conducting a night teashop and his categorical evidence is that at about 2.00 - 2.30 hours in the early morning he saw the accused with a knife in his hand. He came to the shop and the positive evidence of the said witness is that he avoided the said person and was seen boarding a KSRTC bus in the early morning at 3 a.m. Now, at 10 O' clock the appellant was seen in the company of the deceased. Thereafter the appellant was seen with a blood stained knife at 2.00 - 2.30 hours in the early morning and further when the said bus was stopped and searched by PW8, the said person was seen inside the bus. It can be seen that the driver of the Crl.A.No.1765 of 2011 8 KSRTC bus was examined as PW5. If that is so, in between 10 p.m. and 2.30 hours the murder took place. The postmortem certificate also corroborates this version. It can be seen that when at 10 p.m. the deceased as well as the appellant alone were in the house and when by 2.00 - 2.30 hours the appellant alone was seen, that also with a blood stained weapon and the weapon is recovered on a statement given by the said person to the Police and that the said weapon, as stated by the doctor, can cause the fatal injuries, then the chain of circumstances is proved by the prosecution. It is also the submission that Ext.P24, the analysis report also will show that the blood stains that seen on the weapon is that of `O' group and as per the analysis report, the blood group of the deceased which was collected during the postmortem also will show that it is `O' group. If that is so, the prosecution proved the chain of circumstances in this case and it is a complete chain. When the chain of circumstances is complete and when the positive case of the defence is of private defence it can be seen that there is nothing to doubt the case of the prosecution. A private defence can be projected only when the defence is admitting the incident and involvement. The only point to be considered by this Court is whether the version given by the prosecution or whether the version given by the defence is believable ? Surely, in this case, the injuries will belie the defence Crl.A.No.1765 of 2011 9 taken by the appellant. The gravity of the injuries and the nature of the injuries will show that it is not a case of private defence. 4. Now, in this case, prosecution examined 23 witnesses and Exts.P1 to P24 documents are also marked. Ext.P1 is the FIR registered at Marayoor Police Station. The said document shows that information was received at 9 a.m. on 9.2.2008. The place of incident is about 9 kms. away from the police station. The information on which the said F.I.R. is seen registered is given by one Jayalakshmi, the mother of the deceased. The gist of the information given is that the deceased was in a strained relationship with the appellant and on 8.2.2008 he called her and said that he will be coming to take her. The appellant came and took food and in the evening also they had food and thereafter she went to her nearby uncle's house. When she came back on the next morning at about 7 a.m., she found Rameswary murdered by sustaining injuries on the neck and hand area and thereafter she went to the Police Station and gave information. 5. The said Jayalakshmi was examined as PW1 before the court. Her evidence before the court was that Ext.P1, F.I. Statement, was given by her. She also deposed before the Court that as there was Crl.A.No.1765 of 2011 10 some quarrel in between the deceased and her husband (dÉÄßÏᢠε{ᢠÄNßW ÕÝAÞÏßøáKá) she telephoned the accused and called him to settle the said dispute. She further deposed that as she called, the appellant came to her house and she told him to take her daughter with him on the next day by staying there in the night and he agreed. He stayed in the house. As there was only single room therein, after taking food at 10 p.m. she went to her nearby uncle's house. Early morning, at about 7 a.m., when she came back to the house, the appellant was not therein. Her daughter was seen lying dead. There was blood in the room. The chopper in the house was missing. She also deposed that police came. She identified the chopper marked as MO1 and the nighty worn by the deceased as MO2. She further deposed that the deceased had two children and the elder one is studying in VIII[th] standard whereas, the younger one in III[rd] standard. During cross examination she further deposed before the Court that she called the accused by using the phone of the appellant. But, thereafter she corrected that she called from the phone of her daughter. While PW1 was cross examined, it was also put to her that “ dÉÄßAí µÏîßW æÕGáµßGßÏ ÕßÕø¢ ¥ùßÏáçÎÞ **(Q) (A)** §Üï.åÎáùßÏáæ¿ ÉÞĵJßW ÎHí ®{µß µß¿KßøáKßçÜï **(Q) (A)** ©Ií **”** and further she admitted that she went to the Police Station after three Crl.A.No.1765 of 2011 11 policemen came to her house. A specific suggestion was made to her that “øÞçÎÖbøßAí dÉÄßæÏ æµÞÜæºÏîâ ®K ©çgÖJßW ÈßBZ dÉÄßæÏ ¥Õßæ¿åÄÞÎØßMߺîÄí ®Ká ÉùEÞW ÖøßÏçÜï **(Q) (A)** ¾ÞX ¦Ãí dÉÄßæÏ ÈßVÌÈíÇߺîí ÄÞÎØßMߺîÄí.” 6. PW2 is an inquest witness. The inquest is marked as Ext.P2 before the Court. PW3 is the witness to recovery of MO1. The seizure mahazar is marked as Ext.P3. PW3 deposed that while he saw the Police, MO1 was in the hands of the police. But, thereafter he deposed that he saw the handing over of the same to the Police. PW4 is a driver by profession, who is an attester to the seizure of the dress of the accused. He is declared as hostile. PW5 was a driver attached to the KSRTC and according to him, the appellant was seen in his bus and he also heard the appellant stating to the forest officials that he had quarreled with his wife. 7. PW6 is the doctor who collected the blood of the appellant. As per his evidence, blood sample collected was that of the accused and he instructed the lab technician to collect the same. PW7 is the Village Officer who prepared the scene plan which is marked as Crl.A.No.1765 of 2011 12 Ext.P5 before the Court. According to him, the distance in between the place of the incident and the main road is 1½ Kms. PW8 is a Forest Guard. As per the evidence of PW8, he is attached to the forest check post at Chatta Munnar. He was on duty on 8.2.2008. As per his evidence, all the vehicles coming through Marayoor side used to be searched in detail. On 9.2.2008, at about 4.15 a.m., a KSRTC bus came from Udumalpetta side towards Munnar. He along with a police constable and a watcher entered into the bus for search. He found a person sitting on the box seat on the side of the driver. He was seen with a blood stained chopper and it is the evidence of the said witness that his shirt was also seen blood stained and further deposed that his left hand was seen tied with a cloth and blood was oozing out. When enquired, the said person told the witness that his name is Rajan and further stated that “ÉUÈÞ¿í ©U ÕàGßW Õºîí ÍÞøc øÞçÎÖbøßÏáÎÞÏß ÕÝAí ©IÞÏß ®KᢠÉß¿ßÕÜßÏßW èµ ÎáùßEá ®Kᢠ¦ÖáÉdÄßÏßW çÉÞÕáµÏÞÃí ®KᢠÍÞøc ÉøßAá Éxß ÕàGßW µß¿MáIí ®KᢠÉùEá.” and in the same bus, he proceeded. He categorically deposed that the appellant was travelling with the said knife and thereafter at 9 a.m. he came to know that the appellant murdered his wife and according to him, he immediately telephoned to the station informing them that the appellant had Crl.A.No.1765 of 2011 13 proceeded towards Munnar side in the KSRTC bus. PW9 helped the police to conduct inquest. PW10 was the Secretary of Marayur Panchayat, who issued a certificate showing that the said building lies in the name of one Balakrishnan. PW11 was the Bus Conductor from whom the bus ticket book was seized by the investigating officer. The said bus ticket book is marked as Ext.P7 before the Court. PW12 deposed that he is an attester to the seizure mahazar prepared for the seizure of Ext.P7 which was marked as Ext.P8. PW13 is the photographer who had taken the photographs of the deceased which were marked as Ext.P10 series. PW14 is the doctor who conducted postmortem on the dead body. He deposed that he was the Associate Professor and Deputy Police Surgeon and he conducted the postmortem examination on the body of a female named Rameswary aged 27 years and he further deposed that Ext.P11 is the postmortem certificate issued by him on conducting the postmortem of deceased Rameswary. He further deposed that there were eight antemortem injuries. The following injuries were noted by him: - “1) Chop wound on back of right upper arm 16 x 16 c.m. Vertical, lower end at elbow bone deep, cut the muscles, blood vessels and nerves underneath the humerous intact. Crl.A.No.1765 of 2011 14 - 2) Chop wound on tip of right shoulder 8.5 x 6 c.m. Transverse, bone deep with chipping of tip of shoulder 2 x 2 c.m. - 3) Incised wound on back of left shoulder 3 x 1 c.m. transverse, muscle deep 3 c.m. below tip of shoulder. - 4) Lacerated wound in front of left shoulder 3 x 0.5 c.m. vertical 4 c.m. below outer end of collar bone. - 5) Chop wound on back of left forearm 6 x 3 c.m. muscle deep, transverse, 7 c.m. below elbow. - 6) Incised wound on back of left index finger 1.5 x 1 c.m., transverse, muscle deep 3 c.m. below knuckle. - 7) Chop wound on back and right side of root of neck 8 x 4 c.m. with cutting of occipitalis muscle underneath. - 8) Chop wound on right side and front of neck 8 x 5 c.m., transverse, 8 c.m. above angle of luis. The wound cut the skin, subcutaneous tissue sternocleidomastoid muscle, the jugular vein, the external and internal carotid arteries of right side. The wound cut separated vertebral column with spinal cord at the junction between third and fourth vertebra with transection of right vertebral artery.” He also deposed that stomach contained about 350 grams partly digested boiled rice and other vegetable matter. He also deposed that he collected blood in gauze for laboratory investigation. He deposed that the death was due to chop wound sustained to neck. He also deposed that injuries 1 to 3 and 5 to 8 were grave injuries and injury No.8 is independently sufficient in the ordinary course of nature to Crl.A.No.1765 of 2011 15 cause death and when MO1 was shown, he deposed that MO1 can produce chop injuries or incised wounds noted in the postmortem certificate. He further deposed that injuries 1 to 8 could be produced by chopping with MO1 weapon. 8. PW15 is conducting a night teashop at Marayoor town. He deposed that he know the accused. He further deposed that about two years back at about 2.00 - 2.30 hours in the night, the accused came to his shop by demanding a cup of tea. A knife was seen in his hand and blood was seen on his shirt and body. He avoided him from the shop. He boarded in a KSRTC bus at 3 a.m. He deposed that MO1 is the knife which was seen in the hands of the appellant. During cross examination, he said that there was blood on the body of the appellant. Witness denied a suggestion during cross examination that blood was seen oozing and Ext.D1 contradiction was marked by the defence. PW16 is the Head Constable who witnessed the seizure of the dress of the appellant. The said policeman is also a witness to Exts.P8 and P9. PW17 is a recovery witness examined by the prosecution to prove Ext.P3. Even though, he admitted the signature in the mahazar he had not fully supported the prosecution. PW18 is a Police Constable who deposed that he was on surveillance duty. After surveillance, when the Crl.A.No.1765 of 2011 16 appellant was discharged from Medical college, he escorted the appellant and produced before the Circle Inspector. PW19 was the duty doctor attached to the General Hospital, TATA Global Bevereges Ltd. He produced Ext.P17 series which also include the wound certificate of appellant Rajan. PW20 was examined to prove Ext.P17(b). Ext.P17(a) is the wound certificate of the appellant. Ext.P17(b) is the treatment certificate. He deposed before the Court that he saw a deep cut injury on left fore arm, involving extensor tendons 7 c.m. long on the posterior aspect of upper one third. During cross examination he admitted that the person was brought by police. He further deposed that the injuries cannot be self inflicted. PW21 was the KSRTC Bus Conductor. He deposed that in 2008 period he was attached to Munnar depot of KSRTC. He further deposed that he can identify the person who travelled by using the ticket which was shown to him by the police and he identified the appellant as the person who travelled so. He also deposed that when the bus stopped at Chatta Munnar, the forest officials checked the bus. He further deposed that the forest officials questioned the appellant and at that point of time the accused said that “ ” ÕàGßW ÕÝAí ©IÞAßÏßGÞÃí çÉÞKÄí . When he saw the accused, there was nothing on his hand. He further deposed that while forest officials Crl.A.No.1765 of 2011 17 questioned him, a chopper was seen under his foot. The Forest Officials took him out and thereafter again he boarded in the bus and continued the journey. The journey bill is marked as Ext.P14. PW22 is the Sub Inspector who registered the crime which is marked as Ext.P1(a). According to his evidence, on 9.2.2008 at about 9 a.m., a statement was given to him and the said statement was marked before the court as Ext.P1. He further deposed before the court that on the basis of the said statement, F.I.R. was registered as Crime No.30 of 2008. The said F.I.R. is marked as Ext.P1(a). 9. PW23 is the Circle Inspector of Police who conducted the investigation in this case. He deposed before the court that he took the photographs of deceased Rameswary and also collected material evidence from the place of incident. Witness further deposed that he conducted the inquest and the inquest report is marked before the court as Ext.P2. He also deposed that articles like nighty, brassieres, skirt, two panties, a cloth, ear rings, a rold gold chain, a string, bangles etc. were collected. He marked the said articles before the court as MO1 to MO16. The blood collected from the place of incident is marked as MO17 and the remainings got after forensic examination is marked as MO18. Witness further deposed that the accused was arrested on Crl.A.No.1765 of 2011 18 10.2.2008. His evidence is that at about 10 a.m., accused was discharged from the Medical College Hospital and was produced before him by the Police at 4 p.m. He recorded the arrest and prepared the arrest memo and inspection memo which are marked as Ext.P20 series. While accused was questioned, the accused made a disclosure statement and on the basis of the same, recovery of MO1 knife was made. A mahazar was prepared, which is marked as Ext.P3 and he further deposed that the said disclosure statement is included in the said mahazar, which is marked as Ext.P3(a). He also deposed before the court that the said disclosure statement made by the accused, led to the recovery of MO1. He identified the recovered weapon as MO1. Witness further deposed that the dresses of the accused were thereafter collected by detailing in a mahazar. The said mahazar is marked as Ext.P4 before the court. He continued the investigation. He explained the details of the investigation conducted by him. During cross examination, he admitted before the court that he understood that injury sustained to the accused in the incident. His evidence is as follows:- “dÉÄßAí ÉøßAí ÉxßÏÄÞÏß ÎÈTßÜÞÏßGáçIÞ **(Q) (A)** Éß¿ßÕÜßÏßW ÉøßAí ÉxßÏÄÞÏß ÎÈTßÜÞAßÏßGáIí. **MO1** ÕÞAJß æµÞIí ÄæK ÉxßÏ ÉøáAí ¦Ãí Crl.A.No.1765 of 2011 19 ®KíåÎÈTßÜÞÏßGáçIÞ **(Q) (A)** ÕÞAJß æµÞIí ©IÞÏ ÉøßAí ¦Ãí ®Kí ÎÈTßÜÞÏßGáIí. **”** Witness also answered to a question that he is not aware how the appellant/accused reached at the TATA General Hospital. He also expressed his ignorance regarding a suggestion to the effect that police took the accused to the hospital and there was also a suggestion regarding the availability of light in the room. The answer was that “Inquest ÄÏîÞV ¦AßÏ ØÎÏ¢ ÎáùßAíå©UßW æÕ{ßºî¢ §Üï, ¥ÄßÈÞW ¥çÜï çdÉÄ¢ ” ÉáùJßùAß ÉøßçÖÞÇߺîÄí **(Q) (A)** ¥æÄ. He also admitted that the house is not an electrified one and to a specific question whether any lamp was seen, he answered as `No' “Õß{Aí µIßøáKáçÕÞ **(Q) (A)** §Üï.”. On another question he answered that “ Îøߺî øÞçÎÖbøßÏᢠdÉÄßÏáÎÞÏßGáU çµTáµ{áæ¿ çø¶µZ µIßGáIí.” During cross-examination, he answered as follows:- ” **station** _W ÈßKᢠ¥ÈáÕÞÆ¢ ÕÞBߺîí ²øá **HC** ¥çÜï dÉÄßæÏå **Tata** ¦ÖáÉdÄßÏßW ¦AßÏÄí **(Q) (A)** ¥ùßÏßÜï.” The further suggestion was that while accused was sleeping in the house of Rameswary, she attacked him using MO1 and a blow intended towards neck touched the left hand area and as the knife touched at the Crl.A.No.1765 of 2011 20 elevated area of the floor it has not caused injury on the neck. The said suggestion denied by the investigating officer. 10. The defence examined DW1 to DW3 who are the Superintendent of Devikulam Sub Jail, the Librarian of Kottayam Medical College Hospital as well as the Superintendent of Taluk Head Quarters Hospital, Adimaly. Through the said witnesses Exts.X1 to X6 were marked to show that the appellant sustained injury and was under treatment. 11 **.** The learned counsel for the appellant cited before us the decision in **Hardyal and Prem** v. **State of Rajasthan** reported in **AIR 1991 SC 269** to point out that when the case is purely lying upon the circumstantial evidence, to convict chain should be complete. It is also brought to our notice the decision in Crl.Appeal No.142 of 2015 by the Supreme Court of India which is also on the very same point. There also, it is held by the Apex Court that on circumstantial evidence, circumstances from which inference of guilt is sought to be drawn should be fully proved and such circumstances must be of conclusive nature pointing to the guilt of the accused. On the very same point, the learned counsel for the appellant also brought to our notice the decision Crl.A.No.1765 of 2011 21 in Crl.Appeal No.1405 of 2008 by the Apex Court. The learned counsel also brought to our notice the decision of the Apex Court in **Deepak Kumar** v. **Ravi Virmani [(2002) 2 SCC 737]** wherein it is held that when there are lacunas in the evidence, the benefit of doubt should be gone to the accused. The learned counsel also cited the decisions in **Abdul Rasheed** v. **State of Kerala [2013 (1) KHC 418] and Gopalakrishnan @ Mani** v. **State of Kerala [ILR Kerala Series 2012(1) 237]** to show the legal point regarding the private defence as well as Exception 4 to section 300 of IPC. 12.The learned Public Prosecutor cited decision in **State of W.B.** v. **Mir Mohammad Omar and others [2000 KHC 1735]** to show that even when there are laches or lapses on the side of the investigation, if otherwise the case proved, it should be ignored. The learned Public Prosecutor also brought to our notice the decision in **Januram & Ors.** v. **State of M.P. [1997 (2) Crimes 582]** to show that even when prosecution does not explain the injuries, it will not affect the prosecution case. The decision in **Trimukh Maroti Kirkan** v. **State of Maharashtra [2006 KHC 1469]** is also brought to our notice to show that when an offence like murder is committed inside a house, the initial burden to establish the case would undoubtedly be Crl.A.No.1765 of 2011 22 upon the prosecution, but the nature and amount of evidence to be led by it to establish circumstantial evidence cannot be of the same degree as is required in other cases of circumstantial evidence. The Public Prosecutor also brought to our notice paragraphs 13, 14, 15 and 16 of the decision in **Harivadan Babubhai Patel** v. **State of Gujarat [2013 KHC 4451].** 13.This is a case which rests upon the circumstantial evidence. The star witness of the prosecution is PW1, Jayalakshmi, who is the mother of the deceased. She was examined by the prosecution to show that till 10 p.m. on 8.2.2008, the deceased Rameswary was seen alive in her house. Her evidence is that on the said night, when she was leaving her house to uncle's house for sleeping, Rameswary along with her husband was present in her house. Surely, she has not exactly deposed the date of occurrence. But, her evidence is that it was about two years back from the time of giving evidence. She also gave evidence to the effect that Rameswary was married by the appellant herein and further deposed that their relationship was strained and as such, the deceased came back to her matrimonial home and started to live therein. It is the further evidence that she telephoned the accused and brought him to her house and thereafter, Crl.A.No.1765 of 2011 23 leaving Rameswary as well as the appellant therein, she went to her uncle's house to sleep. Her further evidence is that when she came on the next day at about 7 a.m., the appellant/accused was not seen therein and found her daughter lying dead on the floor of the room. The chopper was also missing from the house. Thereafter, she went to the police station and gave Ext.P1, F.I statement. From the above evidence, it can be seen that the categoric case of the prosecution is that up to 10 p.m., the deceased as well as the appellant was in that house. When PW1 came to her house on the next day morning, Rameswary was seen dead by sustaining injuries on the body including the neck area. To corroborate the version of PW1, the prosecution also examined witnesses who had seen the appellant after 10 p.m. 14 **.** As per the evidence of PW15, the appellant was seen at about 2.30 hours in the early morning of the day on which PW1 saw the dead body of Rameswary in her house. According to PW15, the appellant came to the night shop conducted by him at 2.30 hours and thereafter, at about 3 a.m., accused boarded in a KSRTC bus proceeding to Munnar. 15.PW8 is a Forest Guard who checked the bus from Crl.A.No.1765 of 2011 24 Chattamunnar check post. He also saw the appellant in the said bus which was proceeding to Munnar in the early hours. These witnesses are examined by the prosecution to establish that after 10 p.m., Rameswary was seen dead in the early morning in the room wherein the appellant and deceased were spending night and in the very same morning, PWs 8 and 15 saw the appellant alone. Naturally, those evidence will project last seen theory. 16.Apart from the above evidence, the prosecution also got a case that MO1 weapon which was allegedly used to commit murder of Rameswary was recovered on a disclosure statement given by the appellant herein to the investigating officer. In this case, the independent prosecution witnesses examined to prove the recovery of MO1 not fully supported the prosecution case. 17.PW23 who is the investigating officer deposed regarding the statement given by the accused/appellant and marked the statement in Ext.P3 recovery mahazar. The said portion of the statement is marked as Ext.P3(a). The submission of the learned Public Prosecutor in this regard is that even though the independent witnesses are not supporting the recovery, surely, the said recovery can be looked Crl.A.No.1765 of 2011 25 into as per the dictum laid down by the Apex Court in **Harivadan** 's case (supra). In this regard, the further submission is that even if section 27 of the Evidence Act is not applicable, invoking section 8, what all happened therein can be looked into or appreciated by the court while considering the evidence. In this case, the evidence of PW1 regarding the fact that the Rameswary as well as the appellant was in the room where Rameswary was seen dead on the previous night need not be suspected especially when the positive case of the appellant is that he was therein in the house as deposed by PW1. While the appellant was questioned under section 313 Cr.P.C., a question was put to him as follows:- “ÈßBæ{ ÄÞX çËÞÃßW Õß{ߺîáÕøáJß ÕÝAí ÉùEí ÄàVJí ÄÞÈᢠøÞçÎÖbøßÏᢠÈßB{ᢠ²Kߺîí øÞdÄß 10 ÎÃßAí ªÃí µÝߺîí ÈßBç{ÏᢠøÞçÎÖbøßçÏÏᢠÄæa ÕàGßW µß¿Jß ¥¿áJáU ÎÞÎæa ÕàGßW ÄÞX çÉÞÏß µß¿Ká ®Kí PW1 åÉùÏáKá.å®LÞÃí ÉùÏáÕÞÈáUÄí? A:ÖøßÏÞÃí.” The next question is also to the effect that while PW1 came to her house at 7 a.m., Rameswary was seen dead in the room. The answer of the appellant was that “it is correct”. Thus, from the above discussion of evidence, it can be seen that Rameswary died after PW1 left the room and before she came back at 7 a.m. Crl.A.No.1765 of 2011 26 18.Now, the next point to be considered is that, what was the cause of death? In this regard, the evidence of PW14, Deputy Police Surgeon who conducted the post mortem examination on the body of Rameswary and issued Ext.P11 certificate is relevant. He deposed that there were eight ante mortem injuries on the body of Rameswary and his further evidence is that injury No.8 was fatal. He also deposed that the other injuries except injury No.4 are grave in nature. He gave the opinion of cause of death as the chopped wound sustained to the neck. Thus, it can be seen that it is a clear cut case of culpable homicide. 19.Now, the next point to be considered is that, what is the offence and who committed the same? In this regard also, as already stated, the deceased was last seen by PW1 in the company of the appellant herein. Surely, by virtue of section 106 of the Evidence Act, the burden will be upon the appellant. In this regard, when he was questioned under section 313 of Cr.P.C., he gave a detailed statement. As per the said statement, it can be seen that his specific stand was as follows:- |“øÞdÄß<br>¾ÞX|øÞçÎÖbøß|²M¢|µß¿Ká.¾ÞX| |---|---|---|---| |©ùBß.©ùAJßW|®ÈßAí|æÕGí|µßGß.øIÞÎÄá¢| |æÕGß.¥Äá ¾ÞX|Ä¿Eá.¥Äí||®æa §¿Äá| Crl.A.No.1765 of 2011 27 èµæÕUÏßW æµÞIá ÎáùßEá.å¦ÆcæJ æÕGí ®¿Äá èµ ÄIÏßW æµÞIá. MO1åååÕÞAJß æµÞIí ¦Ãí æÕGßÏÄí.åæÕGßÏçMÞZ ÕÞAJßÏáæ¿ ºáIí ÄùÏßW æµÞIá.å§Üï ®CßW ®æa µÝáJᢠµÏîᢠ¥xí çÉÞçÏæÈ.å¾ÞX ®Ãàxí ³¿ß øfæÉ¿ÞX dÖÎߺîá.å¥çMÞZ ¥ÕZ ®æa ÌÈßÏÈí É߿ߺîí ®æK ÄÞæÝ §GßGí ®æa Üߢ ·JßÈí É߿ߺîá.å¥çMÞZ ¾ÞX ¥Õ{áæ¿ µÏîßW §øáK ÕÞAJß ¾ÞX É߿ߺîá ÕÞBߺîá.å¾ÞX Éß¿ßÕß¿áÕßAÞX ÉùEá.å¥ÕZ ÕßGßÜï.å¾ÞX ÕÞAJß ¥çBÞGᢠ§çBÞGᢠÕàÖß.å§øáGÞÏßøáKá.åÕÞAJß ¥ÕZAí ” æµÞIáµÞÃá¢. Thus, it can be seen that the appellant herein is admitting the fact that the injuries were caused by him. Now, the definite case of the defence is that it is a case of private defence and if **exceeded** it will be coming under Exception 4 of section 300 of IPC. While coming to a conclusion regarding this, the binding circumstances also have to be appreciated. Surely, the prosecution got no case that with an intention to murder without the knowledge of the deceased or PW1, accused came to the place of incident and inflicted the injury. As per Ext.P1, the statement given by PW1, allegedly at the earliest point of time before the police is that the appellant herein telephoned Rameswary and told her:- “¾ÞX ÕàGßçÜAí ÕøßµÏÞÃí.åÈÎáAí §Èß ÎáÄW ²Kߺîí ÄÞÎØßAÞ¢.” Rameswary invited the appellant to come to the house. But when PW1, who gave the above statement gave evidence, on oath, her stand was that she invited the appellant over phone and thereby, he came. It is Crl.A.No.1765 of 2011 28 also pertinent to note at this juncture that the defence counsel also highlighted the material fact in respect of Ext.P1. The case of the defence is that Ext.P1 now before the court is not the actual F.I statement. In this regard, it is to be appreciated that while PW1 was cross examined, PW1 categorically admitted that before she went to the police station, three police men came to her house. She thereon went to the police station and gave the statement. Further, it can be seen that she is now changing the version given to the police, when she is giving evidence on oath. Surely, this aspect was not seen put to contradict the earlier version to police. But, when a document is a marked document, it can be used for the purpose of appreciation. 20. Another aspect is also brought to our notice to show that Ext.P1 is not the statement recorded by the police at the earliest point of time. It is highlighted before us that PW20, Dr.Ilavirasu, who treated the appellant, stated before the court that the appellant was brought by the police. The said fact is also seen recorded in Ext.P17(b). The examination of the appellant was at 6.40 a.m., i.e., the appellant was actually with the police at the early hours of the date on which PW1 saw the dead body of Rameswary. It is to be remembered that PW1 saw the body of Rameswary at 7 a.m. Before PW1 has seen the body, Crl.A.No.1765 of 2011 29 the appellant was shown to the doctor by the police and it is also relevant to note that the so called recovery of MO1 weapon was recorded by PW23 i.e., Ext.P3(a) shows that while the appellant was proceeding to Munnar police station, he concealed the chopper. The appellant was arrested at 4 'O' clock in the evening of the day on which dead body was seen, as per the evidence of PW23. We have to consider the fact that after the examination of the appellant by PW20, he was taken to Medical College Hospital and after discharge from there, he was brought to PW23, Circle Inspector and then only he was arrested. Thus, continuously from the time of examination by PW20, there was a police man along with the appellant. The reason for such an aspect is only known to the prosecution. But, PW23 is conspicuously silent regarding this. On the background of these aspects, Ext.P1 and the evidence of PW1 has to be appreciated. 21. Now, in this case, another aspect to consider the stand of the appellant regarding his private defence is regarding the inquest report. The case of PW1, as per Ext.P1, is that PW1 was staying in her house along with her elder son Balakrishnan and his wife as well as a child. She further stated that on 6.2.2008, PW1 along with Balakrishnan and Rameswary went to Tirupur. On 7.2.2008 by 8 p.m, Crl.A.No.1765 of 2011 30 they came back. It is an indication that in the said house, apart from PW1, one Balakrishnan and his wife and child were also staying. On the date of the incident, those persons were not therein. As per the evidence of PW1, the case is that when the appellant/accused came to her house, the matter was talked and difference was settled and PW1 asked the appellant to take Rameswary to his house and he agreed and stayed in her house. Her further evidence is that:- “ ®æa ÕàGßW ²øá ÎáùßçÏ ©Uâ.åøÞdÄß 10 ÎÃßAí ®ÜïÞÕøᢠµâ¿ß ªÃí µÝߺîá.å§Õæø ®æa ÕàGßW µß¿Jß ¾ÞX ¥¿áJáU ÎÞÎæa ÕàGßW çÉÞÏß µß¿Ká.” Ext.P2 inquest report is prepared on 9.2.2008 in between 10.30 a.m and 1.30 p.m by the Circle Inspector of Police who is examined as PW23. While inquest was conducted, two aspects are relevant to be noted. In paragraph viii(a) it is stated thus:- “¿ß ØíÅÜJí çdÉÄ ÕߺÞøà ȿJáKÄßÈí æÕ{ßºî¢ µáùÕÞÏÄßÈÞÜᢠÎxᢠÎùÏâV ÕßçÜï¼í ÉUÈÞ¿í µøÏßW ÉÝÏ æºAáçÉÞØíxßÈí ØÎàÉ¢ æºÜïÆáèø ÍÞøc ¦ÕÃßÏNæÏæµÞIᢠ¿ß ÕßçÜï¼í ÉUÈÞ¿í µøÏßW ÉÝÏ æºAáçÉÞØíxßÈí ØÎàÉ¢ ÎÞ¿ØbÞÎß ÍÞøc 58 ÕÏTáU ÜfíÎßæÏ æµÞIᢠçdÉÄ¢ ®¿áJí ¿ß ÎáùßAáUßW æÕ {ߺîÎáU ØíÅÜJí ¿ß Õà¿ßȵJí µß¿K ÉïÞØíxßµí ÉÞÏßW µß¿JßÏ çÖ×¢ ¿ßÏÞ{áµ{áæ¿ ØÞKßicJßW çdÉÄ¢ ÉøßçÖÞÇßAáKá.” It is an indication that there was no sufficient light in all parts of the room. It is also noted by the investigating officer in the very same paragraph:- Crl.A.No.1765 of 2011 31 “¥øÏßW ÈàÜÈßùJßÜáUÄᢠɺîÈßùJßÜáUÄáÎÞÏ øIá ×ÁíÁßµZ ÇøߺîáµÞÃáKá.åÕÜÄá èµÎáGáÍÞ·¢ Õºîí οAß ÕßøÜáµZ §¿Äá ÎáÜAí Îáµ{ßW µáJß ÕºîßøßAáKÄÞÏß ” µÞÃáKá. ## Further, it was recorded by the investigating officer: “¥øÏßW ÇøߺîßøßAáK ÈàÜÏᢠ¥ÄßÈ¿ßÏßW ÇøߺîßøßAáK ɺîÏᢠµ{ùßÜáU øIá ×ÁíÁßµZ ÎáùߺîáÎÞxß ÉøßçÖÞÇßAáKá.å·áÙcÍÞ·Jí ºÞø µ{ùßÜáU ÄáÃß Î¿Aß ÕºîßøßAáKá.” These aspects are also relevant, when during post mortem examination, there is nothing to show that she was mensurating during the relevant time. 22. The positive case of the appellant is that he acted on private defence. In this regard, he is mainly relying on Ext.P17(a) as well as Exts.X1 to X6 series. These documents will show that there is an injury on his palm area. There is a chopped cut injury on the left forearm 7cm long posterior aspect upper one third and there is also superficial injury in a linear line on left palm. As per the evidence of PW20, the first injury is grievous in nature as it is a tendon injury. In this case, while evidence on oath was given, PW1 gave a varied stand from Ext.P1 statement to the effect that she telephonically called the appellant to her house. Her original stand was that the appellant called the deceased. It can be seen that neither the telephone of the Crl.A.No.1765 of 2011 32 appellant or that of the deceased was seized by the police. It is also to be appreciated that when a specific question was put to PW23 as to the availability of light, the answer was that he had not seen any lamp (Õß {Aí) in that house. But on careful examination of the inquest report, it would reveal that there were photographs of God and a small lamp was also seen therein. Apart from the said lamp, no other lamp was seen or seized. As already stated, the categoric stand of PW23 was that no lamps were seized from the scene. Similarly, it can be seen that as per the evidence of PW1, the property is having an extent of about 10 acres whereas the scene mahazar will indicate that it is about 5 acres. It is also admitted by PW23 to the effect that there was legal proceedings between the appellant and Rameswary and the records were seen by him; i.e., a court case was therein. Surely, it may be a case before the Family Court. On this background, the appellant is putting forward a case during cross examination, PW1 deposed: “øÞçÎÖbøßAí dÉÄßæÏ æµÞÜæºÏîâ ®K ©çgÖJßW ÈßBZ dÉÄßæÏ ¥Õßæ¿ ÄÞÎØßMߺîÄí ®Ká ÉùEÞW ÖøßÏçÜï. A:¾ÞX ¦Ãí dÉÄßæÏ ÈßVÌtߺîí ÄÞÎØßMߺîÄí. It is also brought to our notice that when PW1 was cross examined, she admitted that the said chopper was a newly purchased one and it was sharpened recently. Surely, PW1 got a case that it was brought by her Crl.A.No.1765 of 2011 33 to cut trees. In this case, the specific case of the appellant is that he was therein in the house and while they were lying, he was attacked. His stand was that the knife fell upon elevated area (ÉÞĵ¢). To corroborate this version, the defence is also highlighting an area where recently mud was seen loosened. But when a private defence is projected by the defence, it being a legal defence, the requirements of sections 96 to 100 should be therein. In this case, as per the post mortem certificate, it can be seen that the injuries inflicted are 8 in number. As rightly pointed out by the Public Prosecutor, injury No.8 is an injury where vertibral column and spinal cord was cut separated. The injuries noted on the accused cannot be self inflicted. It is a tendon injury which is very grievous. The question is whether that injury can be considered as the first injury sustained during the incident in which deceased sustained the fatal injuries. In this case, it is to be remembered that as already highlighted, there is nothing on record to show that there was light in the room at the relevant point of time. Prosecution had not produced any material to show that there was sufficient light in the room. It is a fact that the deceased sustained 8 injuries. It is also a fact that the appellant sustained two injuries on the palm area as well as on the hand area. The injury on the palm area is a Crl.A.No.1765 of 2011 34 superficial injury. The persons involved are the husband and wife. There is also material before this Court to the effect that earlier, their relationship was strained one and further there is evidence to the effect that there were two children in the wedlock and they were staying with the appellant herein and there is also evidence before the court to the effect that the appellant was staying about 40 km away from the place wherein incident occurred. There is only one weapon seized by the police. Now, on the background of all these aspects, it cannot be said positively as to who is the aggressor and who started the incident. When admittedly the prosecution not adduced any evidence to show that the appellant came to the place of incident with any deadly or dangerous weapon, i.e., with any preparation to commit offence and further, when the positive case of the prosecution is that due to the compulsion of PW1, the appellant stayed therein and not due to the compulsion of the deceased he stayed therein and even though PW1 along with her son Balakrishnan and daughter in law and child were staying therein, but on the particular day she left Rameswary along with the appellant therein especially when the panchayat secretary deposed that the said house is in the name of Balakrishnan, the above aspects get relevance. It can be seen that as per statement u/s 313 Cr.P.C, the specific stand of the appellant is that he was attacked by the deceased Crl.A.No.1765 of 2011 35 using MO1 weapon. In this case, the police recovered only one weapon. The prosecution is silent regarding how the appellant sustained above referred injuries. The stand of the appellant is that the said injuries are sustained by MO1 weapon. At this juncture, it is also pertinent to note that the prosecution got a definite case that PW6 doctor took blood sample of the accused. What happened to that blood sample is only known to PW23. There is nothing to show that the said sample was analysed or what was the result. In this case, Ext.P24 the analysis report will show that the deceased was having the blood group 'O'. Similarly, blood group of the blood stain seen on the weapon as well as on the dresses of the appellant is also belonging to the group 'O'. Thus, the blood group of the blood stain on the weapon is that of “O” and when there is nothing to show the blood group of the appellant herein, it cannot be positively said that MO1 weapon is not the weapon which caused injuries seen on the body of the appellant. Under such circumstances, when the burden is upon the accused to show what happened after PW1 left the place and by projecting his case of private defence through cross examination and questioning under 313 of Cr.P.C, his case is made clear. The only question is that how far the case projected by the appellant is acceptable. When accepting the case of the appellant, the ante mortem injuries sustained by the deceased is Crl.A.No.1765 of 2011 36 also relevant. We have already taken note of the ante mortem injuries sustained by the deceased. When the positive case of the appellant is that the deceased inflicted injury first and he snatched the chopper and thereafter inflicted injuries upon the deceased, surely, comparing injuries and further considering the place of the injury, it can be seen that, even if it is accepted that there was apprehension of grievous injuries and there existed right of private defence, the injury inflicted is exceeded. At the very same time, it is to be remembered that when there is evidence to the effect that their relationship was strained, it can only be concluded that there was some scuffle in between the deceased and the appellant. At least, there will be some verbal altercation and during the same, the incident occurred. It cannot be said that appellant went therein with intention to murder, especially for the reasons that the appellant was called therein by PW1 and compelled him to stay therein. He never intended to come. As PW1 called him over phone, he came there and thereafter stayed there only because she insisted. When we are coming to this conclusion, we are also relying upon other circumstances available in this case. As per the evidence of PW1, she left the room at about 10 p.m. As per the evidence of PW15, the appellant was seen by him by 2.30 a.m. It is also seen from the post mortem certificate that there was some undigested food present in the Crl.A.No.1765 of 2011 37 stomach of the deceased. Thus, considering the time of the incident, it will be immediately after they went to sleep or in between 10 p.m and 2.30 a.m. i.e., it will be after PW1 left the house. It is also to be remembered that as per Ext.P1, the earlier version of PW1 was that by 7 p.m., they had food. There is also evidence before the court to the effect that the appellant made statement before PW8 to the effect that he had some altercation with his wife and it was also overheard by PW21. On the background of these evidence, which will be admissible under section 8 of the Evidence Act, it can be come to the conclusion that such an altercation took place and during the said altercation, the incident occurred. If that is so, the case will come under exception 4 to section 300 of IPC. The positive case of the appellant is that he inflicted injury in an act of private defence. As already stated, as evident from the injuries, especially considering injury No.8 and further keeping mind that the case of the defence is that he snatched the weapon from the deceased and thereafter inflicted injuries, then it will be a case exceeding private defence in the light of injury No.8. In this case, there is nothing to show that the appellant committed culpable homicide with a pre-meditation because we are coming to this conclusion as per the prosecution evidence itself that he stayed therein on the compulsion of PW1. When the appellant is staying on the compulsion of PW1, it Crl.A.No.1765 of 2011 38 cannot be said that he stayed therein with pre-meditation to murder the deceased. As we have already found, there will be a quarrel; then only the injuries on the palm area as well as on the hand with the very same weapon by which the appellant inflicted injury can be caused. Otherwise the injuries cannot be caused with the very same weapon. When the prosecution got no case that any other weapon used or when there is no explanation available from the prosecution side how the injuries on the appellant sustained, it can be only explained as stated above. 23. The next aspect is that whether the act can be considered as cruel or, in unusual manner. All culpable homicides will be cruel in nature. The only question is that whether the attack was unusually cruel. In this case, as per the evidence of PW1, MO1 was recently sharpened by her and kept in the house. Such a weapon is used to inflict the injuries. As we have already discussed, there is nothing to show the availability of light. Under the circumstances, we cannot say that the appellant had taken undue advantage or acted in a cruel or unusual manner. Thus, the act committed by the appellant will come under exception 4 of section 300 of IPC. Crl.A.No.1765 of 2011 39 24. The next aspect is whether he is entitled for benefit under exception 2 of section 300 of IPC. The right of private defence is a legal defence. As already stated, even though the appellant sustained injuries, it cannot be said that the injuries sustained are such a nature as to cause an injury like No.8 in Ext.P17. In such circumstances, it can be seen that even when accepting the right of private defence, the offence committed by the appellant will not be an offence under section 302, IPC, but only an offence under part I of section 304 of IPC. Thus, the conviction and sentence passed under section 302, IPC is hereby set aside and the appellant is hereby convicted under section 304 of IPC and he is sentenced to undergo rigorous imprisonment for 10 years and shall pay a fine of Rs.10,000/- with default rigorous imprisonment for one year. Thus, appeal partly allowed as stated above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS/spc