Varghese @ Varkey v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939** **CRL.A.No. 1783 of 2010 ( ) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 356/2008 OF THE ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE FOR NDPS ACT CASES DATED 13.7.2010** **APPELLANT(S)/ACCUSED: --------------------** **VARGHESE @ VARKEY, AGED 62, S/O.MATHAI, KOCHUPURAKKAL VEEDU, KYLASAM KARA, KONNATHADI VILLAGE, IDUKKI DISTRICT.** **BY ADVS.SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.T.ANIL KUMAR SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,** **BY ADV.NICHOLAS JOSEPH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - Crl.Appeal.1783 of 2010 - - - - - - - - - - - - - - - - Dated : 4[th] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## **A.M.Babu, J** Appellant is a lifer. He was charged under Secs 201 and 302 of IPC. His conviction and sentence were under Sec.302 of IPC. He was acquitted of the offence under Sec.201 of IPC. The judgment impugned in the appeal was passed in S.C.356/2008 by the additional sessions judge (special judge for NDPS cases) of the court of session, Thodupuzha division. 2. Prosecution case is this : The appellant committed murder of a person by name Mohan. It was at about 5.30 pm on 11.6.2006 the incident. The appellant was on enmical terms with Mohan. The former stabbed the latter with a knife. Mohan sustained severe injuries. He succumbed to the injuries. The appellant in order to cause disappearance of the evidence against him misled the investigating officer by aiding recovery of a knife instead of the knife which was actually used. 2 Crl.Appeal.1783 of 2010 3. One of the ocular witnesses gave the first information statement. The sub-inspector of Santhampara police station registered the FIR. The inspector of Devikulam police circle conducted the investigation. Charge-sheet was filed before the judicial magistrate of the first class, Nedungandam. The learned magistrate committed the case to the court of session, Thodupuzha division. The case was made over to the learned additional sessions judge for disposal. 4. PWs1 to 10 were examined and Exts P1 to P12 and MOs1 to 13 were marked on the side of the prosecution. The defence brought two contradictions which were marked as Exts D1 and D2. 5. The learned trial judge examined the appellant under Sec.313 of Cr.P.C. He denied the incriminating evidence and circumstances put to him in such examination. The learned trial judge after hearing both sides found that the appellant was not entitled to acquittal under Sec.232 of Cr.P.C. Hence the appellant was called upon to enter on his defence and adduce evidence. He did not choose to adduce any evidence on his side. 6. The appellant who was convicted under Sec.302 3 Crl.Appeal.1783 of 2010 of IPC was sentenced to imprisonment for life and a fine of Rs.10,000/-. He was directed to undergo rigorous imprisonment for three months in case of his failure to pay the fine. 7. Heard the learned senior counsel Sri.B.Raman Pillai appearing for the appellant. Heard the learned public prosecutor Sri.Nicholas Joseph. 8. The prosecution case is that the appellant committed the murder of Mohan by stabbing with a knife. MO2 is stated to be the knife with which stab wounds were inflicted. The prosecution examined ten witnesses. PWs 1, 2 and 8 were examined as ocular witnesses. PW1 gave Ext P1 first information statement. PW3 conducted autopsy. His certificate was marked as Ext P4. PW4, village officer, prepared Ext P5 sketch of the scene of occurrence. PW5 attested Ext P6 scene mahazar. PW6 attested Ext P7 seizure mahazar pertaining to the recovery of MO2 knife. PW7 was the writer in the police station. He signed as a witness in Ext P8 seizure mahazar. It was prepared at the time of seizure of MO4 shirt and MO5 lungi of the appellant. It is alleged that the said shirt and lungi were seized immediately after the arrest of the 4 Crl.Appeal.1783 of 2010 appellant. PW10, circle inspector of Devikulam, conducted the entire investigation. He conducted inquest and prepared Ext P10 inquest report. He seized MO6 to MO9 clothes of the deceased at the time of the inquest. PW10 prepared Ext P6 scene mahazar. He seized MO1 Sheath from the place of occurrence. MO1 is stated to be the sheath of the knife with which the appellant stabbed Mohan. MO10 series are a pair of footwear found at the place of occurrence. The same were also seized at the time of inspection of the scene of occurrence. MO11 blood stained sand and MO12 cigarette packet were also seized at that time. PW10 arrested the appellant. The former seized MO13 from the latter at the time of arrest. MO13 is a currency note of the denomination of 20. It is said that PW10 recorded the disclosure statement of the appellant and recovered MO3 knife under Ext P11 seizure mahazar. Ext P11(a) is the alleged disclosure statement of the appellant. It is said that PW10 realized later that he was duped by the appellant by aiding to recover MO3 knife which was not the one actually used. It is also said that PW10 further interrogated the appellant and elicited from him that MO2 was hid by the latter. According to the 5 Crl.Appeal.1783 of 2010 prosecution, on the basis of Ext P7(a) disclosure statement PW10 got MO2 knife recovered at the instance of the appellant. Ext P7 is the seizure mahazar pertaining to MO2 knife. PW9 who succeeded PW10 in office filed the charge-sheet. CW32 who recorded the first information statement and registered the FIR was not examined. Ext P9 FIR was marked through PW9. Ext P12 is the report of chemical examination. 9. The prosecution contends for commission of murder by the appellant. The defence of the appellant is twofold. One, the prosecution failed to establish the true incident. Two, even if the infliction of injuries by the appellant on Mohan is established, the appellant had to do it in exercise of his right of private defence. Sri.B.Raman Pillai, the learned counsel for the appellant, made the following submissions : PWs 1, 2 and 8 who were examined as ocular witnesses did not or could not have seen the incident. Three persons are named in the first information statement by PW1 as the persons who witnessed the incident. The prosecution suppressed all of them and examined PWs 2 and 8 instead. Both of them were quarrymen who were very close to the deceased 6 Crl.Appeal.1783 of 2010 who was also a quarryman. The prosecution witnesses did not have consistency as to the time of the incident. The prosecution cited 12 persons as eyewitnesses including the persons whose names were mentioned in the first information statement, but chose to examine only three of them and suppressed the persons who were named in the first information statement as ocular witnesses. The ocular witnesses spoke in court not in accordance with the prosecution version of the incident depicted in Ext P1 first information statement. PW1 who turned hostile to the prosecution did not support the prosecution. PWs 2 and 8 narrated the incident differently. There has been inordinate delay in sending the FIR to the magistrate concerned. The version of the incident as deposed to by PWs 2 and 8 did not agree with each other and their different versions did not at all agree with the version in the first information statement. The disclosure of fact attempted to be proved with the aid of Sec.27 of the Indian Evidence Act had fallen to the ground inasmuch as two weapons were recovered as the weapon used to commit the crime. 10. On the contrary, Sri.Nicholas Joseph, the 7 Crl.Appeal.1783 of 2010 learned public prosecutor, has submitted that the prosecution proved its case beyond all reasonable doubts. The learned public prosecutor submits that some inconsistencies, omissions and contradictions here and there are quite insufficient to suspect the prosecution version of the incident. It was also argued that PWs 2 and 8 were not effectively cross-examined on the defence side. Another submission was that the appellant failed to offer a proper explanation of his role. The learned public prosecutor submits that if this court for any reason finds that the evidence does not prove an offence under Sec.302 of IPC, an offence under Part-I of Sec.304 of IPC is proved. 11. Having understood the prosecution case, the defence and the submissions of the learned senior counsel for the appellant and the learned public prosecutor, we shall proceed to discuss the evidence. The fact that Mohan had a homicidal death is not a disputed fact. It is rather an admitted fact. It is a proved fact as well. The three ocular witnesses examined in the case spoke to the injuries sustained by Mohan. The said admitted and proved fact has been corroborated by medical evidence. PW3 while 8 Crl.Appeal.1783 of 2010 working as civil surgeon at the community health centre at Angamali had conducted post-mortem examination on the corpse of the deceased. PW3 noted seven antemortem injuries on the dead body. Injury No.1 was an incised wound of eight cms deep on the chest. Injury No.3 was an incised wound on the left flank. The depth of the said wound is not noted by PW3. But it was a deep wound inasmuch as the medical evidence would suggest that it pierced the body and reached the posterior wall of the heart. Corresponding internal injuries noted by PW3 would suggest that the aforesaid two stab wounds caused the death of the victim. PW3 opined that the death was due to cardiac arrest and the bleeding caused due to multiple injuries on the heart. PW3 spoke that the cardiac arrest was owing to the loss of blood resulted by the injuries on the heart. We accept the evidence in the case that the death of Mohan was homicide. We confirm the finding of the court below. 12. We will next discuss the ocular evidence produced by the prosecution. PW1 was the person who gave the first information statement. He did not support the prosecution. He turned hostile to the prosecution. He 9 Crl.Appeal.1783 of 2010 denied having seen the incident. He deposed that the incident was sometime between 5 pm and 6 pm on 11.6.2006. He spoke that he did not see Mohan sustaining stab injury. The witness said that what he saw was Mohan lay on the ground with a stab wound. The witness added that he saw the appellant and Mohan catching hold of each other and falling down on the road. The witness denied having seen the appellant executing any stab on the chest of the victim. Questions were put to PW1 in his examination-in-chief in the nature of cross-examination as permitted under Sec.154 of the Evidence Act. PW1 maintained throughout that he did not see the actual incident of the appellant stabbing the victim. PW1 denied having seen the knife in the hand of the appellant. The witness denied having given any statement to the investigating officer to that effect. Exts P2 and P3 are portions of the statement of PW1 reduced to writing under Sec.161 of Cr.P.C. Exts P2 and P3 are also denied by the witness. He however supported the prosecution to the extent that he saw the sheath lying on the ground at the place of occurrence. The said sheath was marked as MO1. PW1 denied that he saw MO1 sheath in the hand of the 10 Crl.Appeal.1783 of 2010 appellant. The prosecution did not get anything favourable to it from PW1 except that there was a scuffle between the appellant and the victim. 13. PWs 2 and 8 were indeed loyal to the prosecution. They deposed in court that they saw the incident of the appellant stabbing the victim. But there are inconsistencies and discrepancies in their evidence. Some of such discrepancies are minor, but some are not. Ext P1 fist information statement refers to only one stab. It was on the chest of the victim. Going by the version in Ext P1, the appellant and Mohan abused each other, they had a scuffle, both of them fell on the road, the fall of the appellant was on the body of the victim, the appellant sat on the body of the victim, took a knife from the waist and stabbed on the chest of the victim with a somewhat great force. This is not the version deposed to by both PWs 2 and 8 in court. 14. The evidence of both PWs 2 and 8 would suggest that there was an altercation between the appellant and Mohan. We shall discuss about it later at the appropriate place. What we discuss at present is the evidence on the actual overt acts. 11 Crl.Appeal.1783 of 2010 15. Both PWs 2 and 8 deposed that Mohan caught hold of the shirt of the appellant and that the appellant took the knife from his waist. Both witnesses stated that the appellant held Mohan close to the appellant and that the appellant stabbed Mohan at his back twice or thrice. The witnesses spoke that Mohan fell down. Here ends the consistency in the depositions of PWs 2 and 8. According to PW2, the victim fell on the ground and lay supine. But PW8 stated that the victim fell and lay prone. According to PW8, the appellant stabbed the victim on the chest when the victim was trying to get up from the fall. But the evidence of PW2 was different. He deposed that the victim received the stab on his chest when he was lying in supine position. There was an attempt to correct PW2 by putting a question whether the victim was stabbed on his chest while he was attempting to get up from the fall. PW2 answered in the negative. He deposed again that the victim was lying on the ground when he received the stab on the chest. Thus, the evidence of PW2 is not in agreement with the evidence of PW8 on a very crucial aspect. It is therefore doubtful whether PWs 2 and 8 had given the true version of the incident. It appears that they 12 Crl.Appeal.1783 of 2010 had given a distorted version of the incident. The benefit of doubt should go to the appellant. 16. It is impossible to find the appellant guilty under Sec.302 of IPC on the basis of the evidence of PWs 2 and 8. But the trial court accepted their evidence without even properly discussing their evidence. Exts P2 and P3 are the contradictions in the statement of PW1 recorded under Sec.161 of Cr.P.C. Those contradictions were relied on by the court below to find that PW1 had seen the entire incident. The trial court stated that nothing was brought out in the cross-examination of PWs 2 and 8 to disbelieve them. But the trial judge lost sight of the discrepancies in the evidence of those witnesses which appear in their examination-in-chief itself. Such discrepancies were not taken into consideration while accepting their evidence. We are not in a position to appreciate the approach of the learned trial judge. 17. What remains for the prosecution to prove the complicity of the appellant is the recovery of MO2 knife. PW10 who conducted investigation stated that he recorded the statement of the appellant. PW10 spoke that on the basis of the disclosure made by the appellant 13 Crl.Appeal.1783 of 2010 MO2 knife was recovered. PW10 deposed that the appellant himself had taken out MO2 from the place where it was hid. The learned public prosecutor submits that the recovery of MO2 is an incriminating evidence against the appellant. It is also submitted that the prosecution proved the discovery of an incriminating fact with the aid of Sec.27 of the Indian Evidence Act. The learned trial judge accepted the recovery of MO2 as an incriminating evidence against the appellant. The recovery of weapon with the aid of the disclosure statement of an accused is a weak piece of evidence. It is true that PWs 2 and 8 spoke that MO2 was the knife with which the appellant stabbed Mohan. But the ocular evidence produced by the prosecution cannot be relied on as already seen. Therefore the recovery of MO2 by itself cannot be taken as an item of incriminating evidence against the appellant. No conviction can be had on the basis of the recovery of MO2 alone. The recovery of MO3 enfeebles the recovery of MO2. 18. Going by the evidence of PW10, the first disclosure statement of the appellant was about MO3. Ext P11 (a) is the said disclosure statement. PW10 deposed 14 Crl.Appeal.1783 of 2010 that on the basis of Ext P11 (a) disclosure statement and as led by the appellant MO3 knife which was hidden under a bush was recovered. PW10 spoke that he further questioned the appellant since MO3 did not fit in MO1 sheath. In this connection the evidence of PW2 is interesting. He stated that when the police team came to the place of incident, the local people agitated stating that MO3 was not the actual weapon used since it did not fit in MO1 sheath. This caused PW10 to question the appellant further. It was thereafter MO2 was allegedly recovered. The learned public prosecutor has rightly submitted that the recovery of MO3 and Ext P11 (a) disclosure statement are inadmissible in evidence since they did not lead to the discovery of any incriminating fact against the appellant. Therefore, according to learned public prosecutor, the court should discard the recovery of MO3 and accept the recovery of MO2. We accept the submission that the recovery of MO3 is totally irrelevant, and even inadmissible in evidence, inasmuch as it did not discover any incriminating fact against the appellant. But we are unable to agree with the learned public prosecutor that the recovery of MO2 should be accepted. It is difficult to 15 Crl.Appeal.1783 of 2010 accept that the appellant hid two weapons. It is also difficult to believe that one of such weapons, namely, MO3, was hidden in order to dupe the investigating officer. It is also not known why the appellant who allegedly hid MO3 to mislead the investigating officer hid MO2. The recovery of MO2 also cannot be accepted as an incriminating evidence against the appellant. 19. We accept the submission of the learned senior counsel for the appellant that the prosecution failed to prove its version of the incident. PWs 2 and 8 did not give a consistent version of the incident. The recovery of MO2 is suspicious. The delay in dispatching the FIR cannot be left unnoticed. The incident was in the evening of 11.6.2006. The FIR reached the magistrate only at 9.00 p.m on 13.6.2006. The time of dispatch as shown in the FIR is 11.30 p.m on 11.6.2006. Where was the FIR after its dispatch from the police station on 11.6.2006 and before its receipt by the magistrate at 9.00 p.m on 13.6.2006? The records of the committal court show that the appellant was produced along with the remand report at 9.00 p.m on 13.6.2006. It appears that the FIR was produced only when the appellant was produced before 16 Crl.Appeal.1783 of 2010 the magistrate. The prosecution should explain the delay. This is a case where the prosecution did not even attempt to explain the delay. The person who could explain the delay was the person who registered the FIR and dispatched it. He was CW32. He was not examined. He was not examined not because he was not available. The public prosecutor who conducted the case simply gave up CW32 who was bound to explain the delay in sending the FIR to the magistrate. PW9 through whom the FIR was marked was unaware of the reason for the delay. He specifically deposed that he was unaware. PW10 made a feeble attempt to explain the delay. He said that the tensed situation after the incident could be the reason for the delay. That was only his guess. He did not assert anything. The FIR should be forwarded to the magistrate forthwith as provided under Sec.157 of Cr.P.C. The delay in forwarding the FIR to the magistrate cannot be viewed lightly. We in this connection place reliance on **Ishwar Singh vs State of U.P (AIR 1976 SC 2423)** . The learned public prosecutor submits that the delay in dispatching the FIR to the magistrate cannot be fatal to the prosecution as no prejudice is shown to have been 17 Crl.Appeal.1783 of 2010 caused to the appellant thereby. The delay in dispatching the FIR by itself may not be fatal to the prosecution in all cases, particularly in cases where the accused is not prejudiced. But this is a case where there are other materials against the prosecution such as unacceptable recovery, unacceptable ocular evidence et cetera. The delay in sending the FIR to the magistrate should be read along with such evidence. 20. At the risk of repetition we say that the prosecution failed to establish its version of the incident. The ocular evidence is not reliable. The recovery of the weapon is not an acceptable story. There has been inordinate delay in sending the FIR to the magistrate concerned. For these reasons it is possible for us to stop this judgment here and acquit the appellant. But we do not propose to do that. We will consider the alternative contention of the learned senior counsel that the appellant was well within the exercise of his right of private defence. 21. Section 96 of IPC states that nothing is an offence which is done in the exercise of the right of private defence. Section 97 IPC provides, inter alia, that 18 Crl.Appeal.1783 of 2010 every person has a right, subject to the restrictions contained in section 99, to defend his own body against any offence affecting the human body. Section 99 of IPC refers to the acts against which there is no right of private defence. There must be an apprehension of death or grievous hurt. Section 100 states when does the right of private defence of the body extend to causing death. We are only concerned in the present case with the circumstances contained in “first” and “secondly” in section 100. There must be an assault as may reasonably cause an apprehension that death would otherwise be the consequence of such assault. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault is also taken in Sec.100 IPC. Section 102 of IPC deals with the commencement and continuance of the right of private defence of the body. The section provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. It continues as long as such apprehension of danger to the body 19 Crl.Appeal.1783 of 2010 continues. 22. The right of private defence is one of the general exceptions contained in chapter IV of the IPC. It being so, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code shall be upon the accused. Section 105 of the Indian Evidence Act states so. Section 105 provides further that the court shall presume the absence of such circumstances. In this connection the learned public prosecutor has relied on the decision of the apex court in **Arjun vs. State of Maharashtra (AIR 2012 SC 2181).** It should therefore be considered whether the appellant could establish his right of private defence to the extent of rebutting the presumption under section 105 of the Evidence Act . 23. It is settled law that an accused is not duty bound to give positive evidence to establish his self defence. He is of course free to adduce evidence on his part to establish his such defence. He can also establish his right of private defence from the prosecution evidence. The standard of proof is only preponderance of probability. It has been held so in several decisions of the 20 Crl.Appeal.1783 of 2010 apex court and this court. We just mention one of such decisions. It is **Vijayee Singh vs. State of U.P (AIR 1990 SC 1459)** . 24. It is held in **Darshan Singh vs. State of Punjab (AIR 2010 SC 1212)** that the right of private defence commences as soon as a reasonable apprehension arises and that it is co-terminous with the duration of such apprehension. We shall proceed to decide the alternative contention of the appellant that he had a right of private defence. We shall keep in mind the provisions in the IPC and also the judicial pronouncements on the point. 25. The appellant filed a written statement under section 233(2) of Cr.P.C. He stated in it as under: When he was sitting in the verandah of the shop of one George (CW19), Mohan came there. Mohan was inebriated. He abused the appellant using filthy words. The appellant retreated out of fear. But Mohan followed the appellant and continued to abuse him in filthy words. The appellant requested Mohan not to abuse him. But Mohan continued to abuse the appellant. The former caught hold of the collar of the shirt of the latter and pressed his neck with 21 Crl.Appeal.1783 of 2010 both hands. It resulted in suffocation. The appellant tried to come out of the hold. It resulted in a scuffle. Both of them fell on the road. Mohan then squeezed the penis and testicles of the appellant. It caused him severe pain. Mohan did not release the appellant. Mohan took a knife. The appellant caught hold of the hand of Mohan. The knife came to the hands of the appellant. He had to use the knife for his life. He was not sure whether Mohan received any stab from him. The appellant had to run away. 26. The question is whether the appellant could establish his right of private defence and the circumstances depicted in his written statement. As already said the degree of proof is only preponderance of probability. We shall consider the evidence. 27. There is some material in Ext P1 F.I statement itself favourable to the appellant so far as his right of private defence is concerned. Going by the F.I statement, the transaction began when Mohan started to abuse the appellant. It is also seen stated in Ext P1 that the appellant moved towards the tea shop of one George (CW19). When the abuse continued, the appellant 22 Crl.Appeal.1783 of 2010 requested Mohan not to abuse him. It is stated in Ext P1 that the victim then went near the appellant and asked the appellant what would he do if he was abused. The F.I statement refers to the scuffle between the two. What a reader of Ext P1 gathers is that Mohan was the aggressor. It is also possible to be gathered from Ext P1 that the appellant tried his best to avoid a clash. 28. PW1 denied having seen the overt acts of the appellant, but spoke to the abuse on appellant by the victim. The witness deposed that Mohan not only abused the appellant but also abused the father of the appellant. What the evidence of PW1 suggests is also that the victim was the aggressor and that the appellant tried to avoid a fight. 29. PW2 deposed that what he saw first was an altercation between the appellant and the victim. The witness deposed that the victim abused the appellant and that the appellant requested not to abuse him. Then the reaction of the victim was as to what could the appellant do if he was abused. It was also deposed by PW2 that the victim caught hold of the shirt of the appellant. PW2 in cross-examination stated that the victim went near the 23 Crl.Appeal.1783 of 2010 appellant to quarrel with the appellant. PW2 spoke that he saw the victim catching hold of the collar of the shirt of the appellant. At that time also the victim was abusing the appellant, said PW2. It was also the evidence of PW2 that there was a scuffle and that the appellant requested to release him from the hold of the victim. Another fact which got proved from the evidence of PW2 was that the victim was healthier than the appellant. Admittedly the victim was younger than the appellant. PW2 deposed that before the scuffle the appellant even retreated and entered the shop of CW19. But, said PW2, the victim who was intoxicated continued to abuse the appellant. The evidence of PW2 suggests that the victim was the aggressor, that the appellant tried his best to avoid a clash and that the victim who was inebriated provoked the appellant and had a clash with him. 30. What we get from the evidence of PW8 is also not different. He also spoke to the abuse on the appellant by the victim and the appellant's retreat to avoid a clash. PW8 as well deposed that the victim approached the appellant abusing him. PW8 spoke to the victim catching hold of the collar of the shirt of the appellant. In cross- 24 Crl.Appeal.1783 of 2010 examination also PW8 deposed in the same line. He said that when he saw the appellant first, the appellant was a little away from the victim. The victim went near the appellant and abused him. The appellant requested not to abuse him. The said request caused the victim to abuse the appellant more and further. The obscene word uttered by the victim against the appellant was also stated by PW8. The victim continued to abuse the appellant and caught hold on the collar of the shirt of the appellant, said PW8. 31. We have considered the evidence available in the case. The appellant could establish from the evidence adduced by the prosecution that the victim was the aggressor, that the appellant tried his level best to avoid a clash, that the appellant even retreated from the scene and that the victim advanced further and caught hold of the shirt of the appellant. The degree of proof for an accused to establish his right of private defence is only preponderance of probability, but it is established beyond any reasonable doubt that the victim was the aggressor. Not only the victim started the transaction, but also was he interested in continuing it and even followed the 25 Crl.Appeal.1783 of 2010 appellant who retreated from the scene. The only aspect which the appellant could not establish from the evidence of the prosecution witnesses was the squeezing of his penis and testicles by the victim. Barring that, every other aspect stated in the written statement of the appellant has been established. The evidence discussed by us suggests that there was room for the appellant to apprehend that his life was in danger. A person who genuinely apprehends his life to be in danger is entitled to take the life of the aggressor. The appellant was well within the limits of his right of private defence. 32. It is true that there were more than one stab wound on the person of the victim. But that does not mean that the appellant had no right of self defence. It is more so in a case where the two ocular witnesses gave two versions regarding the overt acts alleged against the appellant. It has come out that the appellant was in the hold of the victim for some time. The appellant had to come out of the hold. He had no go other than what he did. 26 Crl.Appeal.1783 of 2010 33. The learned public prosecutor argued that even if the appellant had a right of private defence, it was exceeded. We are unable to accept that argument. The time gap between the injury caused at the back of the victim and the injury caused on his chest could only be a few seconds. Therefore it cannot be said that the appellant inflicted the stab wound on the chest after the cessation of his apprehension of death. The case squarely comes under Sec.100 of the Indian Penal Code. 34. There is no scope for the learned public prosecutor to take a case under Sec.304 of IPC. We find that even if the evidence given by PW2 or PW8 is true, the appellant was well within his right of private defence. 35. Having had a re-appreciation of the entire evidence in the case, we have no hesitation to find that the learned trial judge went wrong in finding the appellant guilty. The impugned judgment is therefore liable to be interfered with in appeal. We do so. 36. The appeal is allowed. The conviction and sentence impugned in the appeal are set aside. The appellant is acquitted of the offence under Sec.302 of IPC. He is on bail and is set at liberty. The bail bond executed 27 Crl.Appeal.1783 of 2010 by him stands discharged. **C.K.ABDUL REHIM Judge** **A.M.BABU Judge** Mrcs/sks/pmn 28 Crl.Appeal.1783 of 2010 29 Crl.Appeal.1783 of 2010