Judgment : The appellant herein stands convicted by the Additional Sessions Judge, Pondicherry at Karaikal, for the offence under Sec. 304, Indian Penal Code, even without mentioning the part under which he is guilty, and has been sentenced to undergo rigorous imprisonment for three years, for having murdered one Rajendran on 11. 1987 at 09.00 p.m. in Vizhithiyur Village within Niravi Police limits of Pondicherry. 2. The facts of the case in brief are as follows: The appellant and the deceased Rajendran are natives of Vizhithiyur. P.W.1 is the father of the deceased Rajendran and P.Ws.2 and 3 are his brothers. The accused 2 and 3, who have been acquitted by the Lower Court are the brothers of the appellant. The deceased was eking out his livelihood as a tailor. The appellant herein gave message to police about one Mathialagan, brother of the deceased, for his participation in gambling in Aghalam. As this appellant was an informant to the police about that matter, the deceased, on 11. 1987 at about 8.30 p.m., went to the house of the appellant and quarrelled with him for giving the information to the police about his brother. In the wordy quarrel between them, the deceased Rajendran was beaten by first accused. The deceased immediately came to his brother P.W.2 informing that he was beaten by the first accused. Immediately P.W.2 went to the first accused and when he was questioning him, the other brother of the deceased P.W.3 Marimuthu also came there and there was altercation between the first accused on one side and P.W.2, P.W.3 and the deceased on the other side. The first accused’s brothers, accused 2 and 3, also joined the first accused and the first accused ran into the house and brought M.O.1 aruval and cut the deceased Rajendran on his abdomen, hip and back. The deceased receiving the injuries, ran towards the south of the Subsidiary Health Centre but he fell in the road itself in front of the Health Centre. His brothers 2 and 3 covered the wounds with M.O.2 bedsheet. After inflicting the injuries on the deceased the first accused and his brothers ran away. The deceased receiving the injuries, ran towards the south of the Subsidiary Health Centre but he fell in the road itself in front of the Health Centre. His brothers 2 and 3 covered the wounds with M.O.2 bedsheet. After inflicting the injuries on the deceased the first accused and his brothers ran away. P.W.1, the father of the deceased, who was standing at some distance talking with one Pakkiri Naidu, heard the voice of his son, and therefore, he witnessed the occurrence when his son was cut P.W.4, who was no his way to the tailor shop, and P.W.5, who is having his tea shop nearby, also had witnessed this occurrence. P.W.6, while going for shopping, saw the appellant with aruval in his hand when the deceased was running to the health centre on the southern side. P.W.7 also saw the deceased with cut injuries in front of the health centre. P.Ws.2 and 3 took the deceased to P.W.8, the Medical Officer attached to the Vizhithiyur Hospital, and they instructed their brother P.W. 1 to go to the police station and lodge a complaint. P.W.8, the Medical Officer, after examining the deceased found that the injuries were serious in nature and therefore, he directed P.Ws.2 and 3 to take their brother to General Hospital, Karaikal. P.W.9, the employer of P.W.2, took the deceased in his car to Karaikal. Within a few minutes, the second accused also came to P.W.8 with head injuries accompanied by his brother, third accused, and P.W.8 is directed the second accused also to go to Karaikal for treatment. In the meanwhile, P.W. 1 went to Niravi Police Station at about 23.15 hours and lodged the complaint Ex.P-1 to the Sub Inspector of police P.W.19. P.W.19 registered the complaint in Crime No.2 of 1987 under Secs.342 and 307 read with Sec.34, Indian Penal Code. Ex.P-7 is the First Information Report. P.W.19, in the midnight, came to the scene of occurrence and prepared the observation mahazar Ex.P-3 and seized the bloodstained earth M.O.4 in the presence of P.W.11. The deceased, who was taken to General Hospital, Karaikal, in the car, was examined by P.W.16, the Medical Officer, and he found the following injuries on the body of Rajendran. 1. A cut injury 15 cm. x 8 cm. about anterior Right extending from mid line to ant. axilleory line intestine is cut freely bleeding. 2. The deceased, who was taken to General Hospital, Karaikal, in the car, was examined by P.W.16, the Medical Officer, and he found the following injuries on the body of Rajendran. 1. A cut injury 15 cm. x 8 cm. about anterior Right extending from mid line to ant. axilleory line intestine is cut freely bleeding. 2. A cut injury 8 cm. x 4 cm. left back near the lower rib. 3. A cut injury 8 cm. x 5 cm. Left back just above wound No.2. Ex.P-11 is the wound certificate issued by P.W.16 for the injuries found on Rajendran. P.W.16 referred the patient for further management at General Hospital, Nagapattinam. At 11.30 p.m. on that night second accused Kaliaperumal came with injuries on his body and P.W.16, who examined him had found, 1. A lacerated injury ever the parietal region 5 cm. x 1 cm. freshly bleeding. 2. A contusion seen over left temporal (left) region 1 x 1 cm.. 3. An abrasion over the left shoulder 1 x 1 cm.. 4. A contusion over the right hand near the right index 1 x 1 cm.. 5. An abrasion near the lamber vertebral region. He admitted him in the male surgical ward. Ex.D-1 is the wound certificate issued by him for second accused. At 20. a.m. on 11. 1987, P.W.16 examined third accused also for certain injuries said to have been caused on 11. 87 at 9.30 p.m. and he found on him, a contusion 4 cm., x 4 cm., near left arm middle. Ex.D-2 is the wound certificate issued by him for the injuries found on third accused. The deceased Rajendran was taken to Nagapattinam Government Headquarters Hospital on the same night and P.W.17, the Medical Officer attached to the Headquarters Hospital Nagapattinam examine the victim Rajendran at 1.45 a.m. on 11. 1987 and as he found his condition very serious, he arranged for surgery immediately. In the meanwhile, he arranged for recording the dying declaration of the victim Rajendran and P.W.12, the Judicial Magistrate, Nagapattinam, recorded the dying declaration of the deceased. Ex.P-6 is the dying declaration P.W.19 seized the blood stained bedsheet M.O.2 and jetty of the deceased M.O.3 under Ex.P-2 in the presence of P.W.10 in the hospital. In the meanwhile, he arranged for recording the dying declaration of the victim Rajendran and P.W.12, the Judicial Magistrate, Nagapattinam, recorded the dying declaration of the deceased. Ex.P-6 is the dying declaration P.W.19 seized the blood stained bedsheet M.O.2 and jetty of the deceased M.O.3 under Ex.P-2 in the presence of P.W.10 in the hospital. The victim was taken for surgery by P.W.17 and on opening the abdomen, he found, 5" tear in the stomach, a tear in the connecting structures of bone which carries the blood vessels, a tear of one and quarter inch in the celon and incised injuries on the chest wall and ribs. The tears and incised wounds were sutured. However, on 11. 87 at 4.20 p.m., the victim Rajendran died in the hospital. Intimation was sent to the police for the death of Rajendran and P.W.23 took up the investigation after altering the First Information Report to the offence under Sec.302, Indian Penal Code. He went to Nagapattinam Government Hospital, where he conducted inquest in the presence of P.W.14 and another and prepared the inquest report Ex.P-40. He examined P.Ws.2, 3 and 4 and others at that time. He arranged to take photograph through P.W.18 and Exs.P-12 and P-13 are the photographs. M.O.5 is the negatives for the photographs for the place of occurrence. Ex.P-14 is the photograph for the deceased and M.0.6, is the negative of it. After the inquest was over, the body was handed over to P.W.15, the constable attached to the Niravi Police Station of being handed over to the doctor for post mortem. P.W.20, the doctor attached to the Government Hospital, Nagapattinam, conducted the post-mortem on 20.1.1987 at 2,15 p.m. on the body of the deceased and found the following external injuries: 1. A sutured wound 25 cm. over left side of abdomen paramedian extending into loin. 2. A sutured wound 5 cm. left infraseapular area. 3. A sutured wound 7 cm. left loin posteriorly. 4. A sutured wound 5 cm. in length in left arm near elbow. Internal examination: 1. Turbid fluid in pertitemal cavity Stomach 1. A sutured wound over anterior wall of the stomach 5 cm.. 2. Another 3 cm., sutured wound over transverse celon. 3. sutured wound . 1 1/2 cm. over Mesocolen. Ex.P-17 is the post-mortem certificate issued by P.W.20. 4. A sutured wound 5 cm. in length in left arm near elbow. Internal examination: 1. Turbid fluid in pertitemal cavity Stomach 1. A sutured wound over anterior wall of the stomach 5 cm.. 2. Another 3 cm., sutured wound over transverse celon. 3. sutured wound . 1 1/2 cm. over Mesocolen. Ex.P-17 is the post-mortem certificate issued by P.W.20. He was of the opinion that the death was due to hemorrhage and septicimia caused by multiple injuries. On 21. 1987 at 6.00 a.m. P.W.21, the Sub-Inspector of Police, Niravi and T.R. Pattinam, arrested the appellant at Nallambal Bus Stand. On the same day, third accused also was arrested and was brought to Niravi Police Station. When they were questioned in the Police station, the first accused made a confession in the presence P.W.13 and other stating that he would point out the place where the knife was kept. Ex.P-7 is the admissible portion of the statement. He took the police party and the witnesses to a place near a bridge where M.O.1 was concealed and the first accused took out M.O.1 and handed over it to the Inspector of Police P.W.23 who seized the same under the mahazar Ex.P- 8. The Inspector of Police P.W.23 sent the article seized by him to. the court. P.W.24 took over the investigation from P.W.23 on 17. 1987 and after completing the investigation, filed the charge sheet against the accused 1 to 3. .3. After me committal of the case to the Court of Sessions, the Additional Sessions Judge, Pondicherry, at Karaikal framed charges against the appellant and accused 2 and 3. As against the appellant, charge for the offence under Sec.304, Indian Penal Code was framed and against the other accused, charge for the offence under Sec.323, Indian Penal Code was framed separately. The appellant and others pleaded not guilty and therefore the witnesses were examined by the learned Additional Sessions Judge. 24 witnesses were examined on the prosecution side, Exs.P-1 to P-22 and MOs.1 to 6 were marked. On the side of the accused Exs.D-1 and D-2 were marked. After the evidence was over, the appellant was questioned under Sec.313, Code of Criminal Procedure and was called upon to explain the incriminating circumstances found against him in the evidence. 24 witnesses were examined on the prosecution side, Exs.P-1 to P-22 and MOs.1 to 6 were marked. On the side of the accused Exs.D-1 and D-2 were marked. After the evidence was over, the appellant was questioned under Sec.313, Code of Criminal Procedure and was called upon to explain the incriminating circumstances found against him in the evidence. The appellant filed a written statement in which he has stated that the deceased armed with scissor and his brothers armed with sticks and aruval, came and quarrelled with him, that when his brothers accused 2 and 3 came there, they were attacked by the deceased and the P.Ws.2 and 3, that he pushed the prosecution witnesses in order to save his brothers, that in the pell-mell, the deceased had sustained injuries, that the case has been foisted at the instance of P.W.9, under whom P.Ws.2 and 3 employed, and that he is innocent. No witness was examined on the side of the accused. The learned Additional Sessions Judge, Pondicherry at Karaikal, after considering the evidence on record, has found that this appellant is guilty for the offence under Sec.304, Indian Penal Code and has sentenced him to undergo rigorous imprisonment for three years while the other two accused, who were charged for the offence under Sec.323, Indian Penal Code have been acquitted. Aggrieved of the said conviction and sentence, the appellant has come forward with this appeal. .4. At the outset, I have to express my shock and anguish over the manner in which the charges have been framed in this case. The State has filed the chargesheet for the offence under Sec.302, Indian Penal Code read with Sec.34, Indian Penal Code against all the three accused because the prosecution case is that the deceased was murdered by cutting with M.O.1 aruval by the appellant herein with the assistance of his brothers accused 2 and 3, while they were holding the deceased by shoulders, to enable the appellant to cut them. The eye-witnesses also have narrated the overt act against all the accused and the manner of their participation in the crime. The eye-witnesses also have narrated the overt act against all the accused and the manner of their participation in the crime. When such is the statement of the witnesses, it is rather strange for me to see that the Additional Sessions Judge, Karaikal, has framed the charge against the first accused (appellant herein) only for the offence under Sec.304, Indian Penal Code, that too even without specifying the part under which the accused was liable to be punished. Still worse is the charges against appellants 2 and 3 framed only , for the offence under Sec.323, Indian Penal Code though the statements of the witnesses is to the effect that they actively assisted the first accused in murdering the deceased by holding the deceased person. It appears that the Additional Sessions Judge, Karaikal, did not know the scope of Sec.304, Indian Penal Code, which has two parts, and when once the offence is brought under Sec.304, Indian Penal Code, it should fall either under Sec.304, Part I or Part II. The Additional Sessions Judge, Karaikal, did not know even this basic criminal law. The painful feature is that even the Public Prosecutor, who represented the State, did not raise any objection for the manner in which the charges were framed against the accused in this case and it appears that he also was a consenting party for this way of criminal trial before the Court of Sessions. Unfortunately, as this appeal has come up for trial nearly eight years after the disposal by the trial court, this way of trial by the Additional Sessions Judge, Karaikal, comes to the notice of this Court only now. Anyhow, as it is too late now and the Presiding Judge also seems to have already retired, there is no other go except to feel sorry for such instances, happening in the trial court at Pondicherry. 5. Now, coming to the appeal, the learned counsel for the appellant is mainly attacking the prosecution case on two aspects, namely, the non-explanation of the injuries found on accused 2 and 3 and the circumstances showing the right of private defence available to the accused in this case. 6. I was taken through the evidence of the eye-witnesses P.Ws.1 to 5, who have spoken about the manner in which the occurrence had taken place. 6. I was taken through the evidence of the eye-witnesses P.Ws.1 to 5, who have spoken about the manner in which the occurrence had taken place. P.W.1 the father of the deceased, would say that as he had been to the Bazaar, he heard the quarrel and when he went near the place of occurrence, he saw the appellant, who came out from his house with M.O.1 aruval, stabbing his son, while the accused 2 and 3 were holding the deceased by his shoulders. He also would say that when the appellant was coming with aruval M.O.1, his two sons P.Ws.2 and 3, who were also in the scene of occurrence, ran away. P.Ws.2 and 3, the brothers of the deceased, also have narrated that as there was wordy quarrel between the deceased and the appellant around 8.00 p.m. on that day and the appellant had beaten their brother the deceased, who came and complained, to them they went to enquire about that, from first accused and at that time, there was a scuffle between them and the first accused, who ran into his house, brought M.O.1 weapon and stabbed the deceased, while his brothers accused 2 and 3 had assisted him by holding the deceased. P.Ws.4 and 5 have also stated in the chief-examination that the first accused, assisted by his brothers, had stabbed the deceased. But the witnesses examined would admit that there was clash between these two groups in which firewood were used by the prosecution party and the accused party also had sustained injuries on account of which, they were sent to the hospital for treatment. Therefore, in the light of these circumstances, the prosecution case has to be probed to find out the aggressors and whether the evidence on the prosecution side is acceptable. 7. Before, we proceed to analyse the evidence of witnesses, it is proper to mention a work about the place of occurrence. The place of occurrence is admittedly the frontage of the house of the appellant. In the rough sketch, Ex.P-16, prepared by the Investigating Officer, the scene of occurrence is shown as ‘A’ in front of the house of the appellant. P.W.1 would admit in his evidence that the place of occurrence is about 12’ away from the house of the appellant in front of his house. In the rough sketch, Ex.P-16, prepared by the Investigating Officer, the scene of occurrence is shown as ‘A’ in front of the house of the appellant. P.W.1 would admit in his evidence that the place of occurrence is about 12’ away from the house of the appellant in front of his house. P.W.11, the mahazar witness also would say that the bloodstained earth was taken by the Investigating Officer P.W.19 in front of the house of the appellant under Ex.P-4 mahazar. It has been stated by P. W. 1 that himself and his sons are living together in a house situated in the adjacent street and the deceased is having a tailor shop four of five buildings away from the scene of occurrence. Therefore, it is very clear from this evidence that the deceased Rajendran came to the house of the appellant to pick up a quarrel. 8. It is also admitted by P.W.23 Investigating Officer that the genesis of the occurrence is that the deceased had grievance against the appellant for he having given the information to police for the participation of his brother Mathialagan in gambling. P.W.2 in his evidence would say that as his brother, the deceased, came to him about 3.30 p.m. that the appellant had beaten him, he went along with the deceased to question the appellant as to why the appellant had beat his brother. Even though P.W.2 would say only after he reached the scene of occurrence, his other brother P.W.3 also came there, the evidence is very clear that all the three brothers went to the house of the appellant to pick up a quarrel with the appellant. Even assuming that the earlier incident in which the deceased was beaten up by the appellant, was at the fault of the appellant, though there, is no evidence for that occurrence, it is admitted by P.W.2 himself that he and the deceased went to the house of the appellant to question about that and P.W.3 also joined them in the occurrence. P.W.2 would admit that in the wordy quarrel between himself and the appellant, there was a clash between them, which went on for about half an hour. P.Ws.3 and 4 also would admit the clash and beating of each other with hands. P.W.2 would admit that in the wordy quarrel between himself and the appellant, there was a clash between them, which went on for about half an hour. P.Ws.3 and 4 also would admit the clash and beating of each other with hands. It is the evidence of P.W.5 that initially first accused and the deceased were fighting with the hands and thereafter, the deceased went back and brought his brothers P.Ws.2 and 3. As a matter of fact, the deceased himself, in his dying, declaration, Ex.D-6, has admitted the exchange of blows between them. The accused party also had three members namely, the prosecution party also consisted of three members, namely the deceased and his two brothers, P.Ws.2 and 3. 9. When these two parties were fighting with each other, leading to a clash between them, it has to be found out whether the accused party behaved aggressively and whether the prosecution party possessed of any weapons, creating nay apprehension in the minds of the accused party to take up the weapon to protect themselves. Even though P.Ws.2 and 3, the brothers of the deceased who participated in the clash, would say that they did not use any weapon against the accused party, P.Ws.5 and 6 would say that P.Ws.2 and 3 were possessed of firewoods in their hands even when they came to the scene of occurrence with the deceased. P.W.5 is having a tea shop nor the scene of occurrence and in the cross examination, he has admitted that the deceased Rajendran went and brought P.Ws.2 and 3, who came with firewoods in their hands. Even though he avoided to speak about the attack made by P.Ws.2 and 3 on accused 2 and 3 by saying that he did not see any injuries on accused 2 and 3, during the time of investigation, P.W.5 has clearly stated to P.W.23 that accused 2 and 3 were attacked with firewood by P.Ws.2 and 3. Similarly, P.W.6 also, during the time of investigation, has told the P.W.23 that P.Ws.2 and 3 beat accused 2 and 3 with firewoods. As a matter of fact, P.W.23, the Investigating Officer in his evidence, would admit that during the investigation and after examination of P.Ws.5 and 6, he came to know that P.Ws.2 and 3 were brought by the deceased and they came with firewood sticks and attacked accused 2 and 3. As a matter of fact, P.W.23, the Investigating Officer in his evidence, would admit that during the investigation and after examination of P.Ws.5 and 6, he came to know that P.Ws.2 and 3 were brought by the deceased and they came with firewood sticks and attacked accused 2 and 3. He further admits that during investigation, he came to know that only after the attack on accused 2 and 3, first accused ran to his house and brought the aruval and cut the deceased. However, P.W.5 being a partisan witness, did not want to admit the injuries on accused 2 and 3 and would say that he did not see any injury on accused 2 and 3. But, he would say that accused 2 and 3 were carried in an ambulance to General Hospital, Karaikal, P.W.6 also, during the course of investigation, has told P.W.23 that accused 2 and 3 were beaten and they were taken to the hospital. Therefore the evidence available on record proves that in the course of the clash between these two groups, P.Ws.2 and 3 were armed with firewood sticks, while the accused party did not possess any weapon initially and only after the attack by the prosecution witnesses on the accused party, the appellant ran into his house and brought M.O.1 weapon to cut the deceased. 10. The next aspect is the evidence for the injuries found on the accused party. As mentioned above, P.W.5 would admit in his evidence that second and third accused were taken in the ambulance to the Hospital whereas P.W.6 has, only at the time of investigation, admitted about the injuries on the accused 2 and 3. P.W.7, who has spoken about the injuries, sustained by the deceased, in the cross examination would admit that accused 2 and 3 came to the hospital holding the in heads for treatment and the doctor advised them to go to Karaikal Hospital as those injuries could not be treated in Vizhithiyur Health Centre. P.W.8 is the Medical Officer attached to Vizhithiyur Health Centre. He has stated that second accused came with hold injury and that he bandaged the wound and gave initial treatment but advised him to go to karaikal Hospital in the ambulance as the injury sustained by him was very serious in nature. P.W.8 is the Medical Officer attached to Vizhithiyur Health Centre. He has stated that second accused came with hold injury and that he bandaged the wound and gave initial treatment but advised him to go to karaikal Hospital in the ambulance as the injury sustained by him was very serious in nature. Even though P.W.8 now in his evidence would say that he did not give any treatment to third accused, in Sec.161, Code of Criminal Procedure statement, he has admitted to the Investigating Officer that third accused also had injury on the shoulder. Now, we have the evidence of P.W.16, the Medical officer attached to General Hospital, Karaikal, who had given treatment to accused 2 and 3. According to him, second accused had a lacerated injury over the parietal region 5 cm, x 1 cm. with fresh bleeding, another contusion over the left temporal region 1 cm. x 1 cm., an abrasion over the left shoulder 1 cm. x 1 cm., a contusion over the right hand near the right index finger and another abrasion in the lamb vertebral region. So, altogether, second accused had give injuries, of which two were head injuries with bleeding. He also would say that second accused was admitted in Karaikal Hospital on 11. 1987 as inpatient till 21. 1987. Third accused, according to P.W.16, had only a contusion 4 cm. x 4 cm. near the left forearm middle and he had no other injury. Exs.D-1 and D-2 are the wound certificates issued for the injuries on accused 2 and 3 but unfortunately, the wound certificates are found missing in the records and inspite of the efforts taken to get the original wound certificates from the hospital at Karaikal, they could not be traced. Anyhow, the fact remains that accused 2 and 3 also had sustained injuries, of whom second accused had sustained two head injuries, apart from three other injuries on the body. As mentioned earlier, P.W.23, the Investigation, he learnt that only after the attack on accused 2 and 3, the appellant ran to his house and brought M.O.1 aruval which was used to cut the deceased. 11. The matter does not stop with that. As mentioned earlier, P.W.23, the Investigation, he learnt that only after the attack on accused 2 and 3, the appellant ran to his house and brought M.O.1 aruval which was used to cut the deceased. 11. The matter does not stop with that. A case also was registered in Crime No.3 of 1987 in Niravi police station against P.Ws.2 and 3 for having attacked accused 2 and 3 and P.Ws.2 and 3 also admit that they were arrested when they were in Nagapattinam Hospital for the attack made by them. In spite of this abundant evidence for the injuries caused to accused 2 and 3 by the prosecution witnesses, the prosecution in this case had not chosen to explain the injuries on the accused persons and even the wound certificates relating to accused 2 and 3 were not produced on the prosecution side and only when P.W.16 was examined in the court, the treatment to accused 2 and 3 was elicited in the cross-examination and the wound certificates were marked as defence documents. Though a case was registered against P.Ws.2 and 3 for having caused injuries on accused 2 and 3, neither the statements made by any of these accused persons for registering that case nor the charge-sheet were produced before the court. As second accused was admitted in Headquarters Hospital at Karaikal and he also informed the doctor that he was attacked on 11. 1987 by certain persons, probably, this information was sent to the police, which compelled the police to register a case for the attack in accused 2 and 3. Though a case was registered against P.Ws.2 and 3 and the investigation also revealed the attack on accused 2 and 3, the prosecution was completely silent about this aspect and no explanation has been given on the prosecution side as to how accused 2 and 3 sustained injuries and whether the persons, who caused such injuries on accused 2 and 3 were aggressors or not, for the occurrence. We are at dark to know even the result of the investigation in Crime No.3 of 1987 against P.Ws.2 and 3 and P.W.23 has not mentioned whether the accused persons were chargesheeted or the case was referred to. It is quite strange that why the prosecution has completely suppressed these aspects in this case. We are at dark to know even the result of the investigation in Crime No.3 of 1987 against P.Ws.2 and 3 and P.W.23 has not mentioned whether the accused persons were chargesheeted or the case was referred to. It is quite strange that why the prosecution has completely suppressed these aspects in this case. Therefore, the learned counsel appearing for the appellant would argue that as the injuries on the accused persons have not been explained by the prosecution, the prosecution has not placed the entire truth before the court and the witnesses have not spoken the truth. 12. Though P.W. 1 would claim to be the eye-witness to the occurrence, he has stated in his complaint Ex.P-1 that after the attack on his son, the deceased, by the appellant, the deceased ran across the road towards the Hospital and he fell down in front of the hospital and that the appellant who came chasing his son, had again cut him on his back. But this is a new version which has not been spoken to by any of the other eye witnesses to the occurrence. Further, P.W. 1 would say that when the appellant was coming with aruval in his hands, his sons P.Ws.2 and 3 had run away from the scene of occurrence. If that was so, P.Ws.2 and 3 could not have witnessed the assault on the deceased by the appellant. P.W. 1 does not speak of any injuries on second accused and third accused and he would say that P.Ws.2 and 3 did not attack the accused party. Even though P.Ws.5 and 6 would admit that P.Ws.2 and 3 had firewood in their hands, P.W. 1 would say that his sons did not possess any weapon. So, from this type of version given by P.W.1, either he could not have witnessed the occurrence or he is not speaking the truth. P.Ws.2 and 3 would say that they did not attack accused 2 and 3 and they did not have any weapon in their hands. This evidence of P.Ws.2 and 3 is contra to the evidence of P.Ws.5 and 6. P.W.4 would say that P.Ws.2 and 3 were not even found in the scene of occurrence. P.Ws.2 and 3 would say that they did not attack accused 2 and 3 and they did not have any weapon in their hands. This evidence of P.Ws.2 and 3 is contra to the evidence of P.Ws.5 and 6. P.W.4 would say that P.Ws.2 and 3 were not even found in the scene of occurrence. Though in the chief-examination P.W.5 would say that he saw the appellant cutting the deceased Rajendran with aruval, in the cross examination, he would say that he did not see the appellant stabbing Rajendran but he heard the shouts, Therefore, it cannot be said that P.W.5, is eye witness to the occurrence. When the evidence of the eye-witnesses, whom I referred to above, is inconsistent to each other in the manner mentioned above, it cannot be safe to act upon their evidence. Further, even though the investigation had revealed the attack on accused 2 and 3, these witnesses, P.Ws.1 to 3 did not speak anything about the attack on accused 2 and 3. 13. The learned counsel for the appellant Mr.Rajagopal would refer to the decision in Lakshmi Singh v. State of Bihar, A.I.R. 1977 S.C. 28, wherein the Apex Court would observe that when the accused is proved to have sustained injuries is the course of the same occurrence, non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed, which lead to the irresistable conclusion that the prosecution has not come out with the true version of the occurrence. The Apex Court, in the same decision, has expressed that the omission on the part of the prosecution to explain the injuries on the person of the accused, assumes much greater importance where the evidence consists of interested orenimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In Onkarnath Singh v. State of U.P., A.I.R. 1974 S.C. 1550:1974 Crl.L.J. 1036, the Apex Court has held that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. In Onkarnath Singh v. State of U.P., A.I.R. 1974 S.C. 1550:1974 Crl.L.J. 1036, the Apex Court has held that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. However, such non-explanation is a factor, which is to be taken into account in judging the veracity of the prosecution witness and the court must scrutinise their evidence with case and each case presents its own features. It adds that in some cases, the failure to account for the injuries on the accused may undermine its evidence to the core and face-off the substratum of its story while in others it may have little or no adverse effect in the prosecution case. In State of Kerala v. Devassy, (1964)1 Crl.L.J. 101, the Kerala High Court would observe as follows: “However, when in an occurrence in a broad daylight as in this case, the accused sustained injuries comparatively no less serious than those inflicted on the prosecution party and the witnesses are in a position to account for each and every abrasion or contusion found on the latter; then if they were to say that they failed to see how the accused sustained injuries or if they come out with apparently unacceptable explanations for such injuries, the witnesses lose their status as disinterested and unbiased witnesses and courts may well feel it unsafe to act on such evidence.” In this case, the second accused had sustained head injuries, and also admitted as an in-patient in the hospital and was there for 11 days, we cannot ignore this feature in the prosecution case. As the prosecution had failed to explain the manner in which the accused persons had sustained injuries, there is a possibility for this occurrence happening in some other manner also. But the learned Public Prosecutor would argue that the injuries on accused 2 and 3 were not serious in nature and therefore, non-explanation of the injuries cannot be given much weight P.W.8 would say that the injuries on second accused were serious in nature and therefore, he could not give treatment in the Health Centre and directed accused 2 and 3 be taken in ambulance to Karaikal. Unfortunately, Ex.D-1 the wound certificate is missing from the file and it has become difficult to substitute it. Unfortunately, Ex.D-1 the wound certificate is missing from the file and it has become difficult to substitute it. Anyhow, it is the document of the accused but there is no evidence on the prosecution side to show that the injury sustained by second accused was simple in nature. Anyhow, as second accused had sustained two head injuries with bleeding, it cannot be treated so lightly to hold that the non-explanation of these injuries will not have any dent in the prosecution case. 14. The learned counsel for the appellant has taken up another argument that from the evidence on record, the right of private defence also was available to the accused persons and therefore, in this case, this appellant cannot be convicted for the offence under Sec.304, Indian Penal Code also. According to him, there is clear evidence on record to show that P.Ws.2 and 3, who came along with the deceased to the house of the appellant, were armed with firewood sticks and this appellant also in his statement under Sec.313, Code of Criminal Procedure has stated that the deceased was having scissors in his hands and as the prosecution party, consisting of three persons armed with the weapons, came to the house of the appellant and also attacked the accused party, who were unarmed, according to the learned counsel, the prosecution party were the aggressors and the accused party were entitled to resist the attack on them by using farce against their assailants. At this juncture, the evidence of P.W.23 must be remembered. P.W.23 would admit in the evidence that the investigation revealed that only when accused 2 and 3 were attacked by the prosecution witnesses, appellant ran into his house and brought the aruval M.O.1. Therefore, the evidence on the prosecution side makes it very clear that the prosecution witnesses not only came with weapons in their hands namely the firewood sticks but they even started to attack the accused persons, who were unarmed, and only thereafter, it was retaliated by the appellant by using the aruval M.O.1 against the deceased. Therefore, the evidence on the prosecution side makes it very clear that the prosecution witnesses not only came with weapons in their hands namely the firewood sticks but they even started to attack the accused persons, who were unarmed, and only thereafter, it was retaliated by the appellant by using the aruval M.O.1 against the deceased. Sec.97, Indian Penal Code reads, “Right of private defence of the body and of property: Every person has a right, subject to the restrictions contained in Sec.99, to defend-First - His own body, and the body of any other person, against any offence affecting the human body; Secondly....” So, Sec.97, Indian Penal Code permits to avail private defence not only to safeguard his own right but also the body of any other person against any offence being committed on him. When second accused was brutally attacked with firewood logs by P.Ws.2 and 3, naturally this appellant, being the brother of accused 2, cannot keep quiet and be a spectator of this incident and therefore, naturally, he might have run to his house and brought the aruval M.O.1 to resist the attack on his brothers and in that course, the deceased was cut. In Shahan Mohamed Ali v. Emperor, A.I.R. 1933 Sind. 138, the view taken is that where a person finds himself in a very dangerous situation and it is a case of two to one against him, and in all probability three to one and he has every reason to apprehend that a grievous hurt would be inflicted, the right of private defence extends to the voluntary causing of death or of any other harm to the assailant of the offence which occasions the exercise of the right in such an assault as may reasonable cause the apprehension that grievous hurt will otherwise be the consequence. In Bayadas Bowri v. State of Assam, 1982 Crl.L.J. 213, when the accused, a disabled person, who was using only one hand, when attacked with bamboo, use of pen knife by the accused giving a blow resulting in fatal injury, was not in excess of the private defence and it was held that it was within his right of self defence. In Lakshmanan v. State, 1963 M.W.N. (Crl.) 205, it is held that where the prosecution party marched in a body armed with stick to the accused’s place assumed the role of aggressors and beat the accused party and further threatened to cause serious and grave injury and the accused had no option but to cause the stab injury purely in self defence and prompted by the instinct of self-preservation the case comes under sub-clauses (1) and (2) of Sec.100, Indian Penal Code and the accused is entitled to the right of self-defence. The Bench of this Court also has added that when an accused person commits an act of violence upon another person in circumstances which prove that he is apprehending further violence from that person, nothing further need be proved to establish that he is acting in the exercise of the right of private defence. In Yogendra Morarji v. State of Gujarat, A.I.R. 1980 S.C. 660, the Apex Court has dealt with this subject elaborately and laid the ratio as below: "In other words the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to except from a person exercising this right in good faith,. to weigh ‘with golden scales’ what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." The Apex Court would further observe: "It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack... the-right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Sec.100...In other words, a person who is in imminent and reasonable danger of loosing his life or limb may, in the exercise of right of self defence, inflict any harm, even extending to death, on his assailant either to death, on his assailant either when the assault is attempted or directly threatened." In the light of these pronouncements, now if we analyse the evidence, we are able to see that the deceased and his two brothers came to the house of the appellant with, firewood logs in the hands of P.Ws.2 and 3 and they attacked accused 2 and 3, who were unarmed and it cannot be stated that there was no danger to the life of accused 2 and 3. In spite of the attack on them and only after realising this imminent danger to his brothers, first appellant ran to his house to trying the arrival and thereafter cut the deceased. But it was argued for the learned Public Prosecutor that as the injuries found on second accused are not proved to be serious in nature, it cannot be stated that there was danger to the life of the accused party and therefore, even if it is taken that private defence was available to the appellant he had "exceeded the self defence. The learned counsel Mr.Gopalakrishnan, appearing for the State, would refer to the decision in State of U.P. v. Ram Warup, 1974 Crl.L.J. 1035, in which case, there was a scuffle between the deceased and one G, the father of the accused and G was alleged to have been assaulted with lathis by servants of the deceased and at that time, the accused fired his gun killing the deceased. It was found that the injuries sustained by G were simple in nature and the Apex Court took the view that from the nature of injuries sustained by G, there could no reasonable apprehension that he will be done to death or even that a grievous hurt would be caused to him and therefore, the accused firing at point blank range was not entitled to protection as self defence. According to the learned counsel, in this case also, the evidence disclosed that there was scuffle and thereafter even if second accused was beaten, the injury sustained by him was simple in nature and therefore, the appellant the deceased. He cited another decision in Onkarnath Singh v. State of U.P.,A.I.R.1974 S.C. 7550, wherein the Apex Court has held that the right of private defence given by the Penal Code is one of defence or self protection and not a right of reprisal or punishment and the harm inflicted in self defence must be no more than is legitimately necessary for the purpose of defence and the right is conterminous with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence and it avails only against a danger, real, present and imminent. In Lakshman Sahu v. State of Orissa A.I.R. 1988 S.C. 83, the Apex Court would observe that the right of private defence is available to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation and that the necessity must be present, real or apparent. In that case, the accused gave a lathi blow on the head of the victim which it was proved, was sufficient to cause death and the Apex Court took the view that there was nothing to show that the blow was given by the accused to defend himself. Relying upon these decisions, the learned counsel for the State submits that beating of second accused with firewood by itself will not create an apprehension to the accused party for any imminent danger and therefore this appellant cutting the deceased with M.O.1 aruval was exceeding his self defence. 15. The evidence of P.W.2 itself reveals that for about half an hour, there was a clash between these two groups consisting of each three persons on either side and the prosecution party, which came from another place to the house of the appellant did not leave the house of the appellant. On the other hand, they quarrelled and beat accused 2 and 3, who came in support of the first accused. On the other hand, they quarrelled and beat accused 2 and 3, who came in support of the first accused. As second accused had sustained five injuries on his body including the two head injuries, it cannot be stated that there was no imminent danger to the life of the accused party when especially they were unarmed and therefore, naturally, the appellant might have been prompted by his intuition to come with the weapon to protect himself and his brothers. So, when he attacked the deceased with M.O.1 weapon, he had caused injuries on the abdomen right side, back left near the lower rib and a cut on the back left side, in all three injuries only. The post mortem doctor P.W.20 was of the opinion that the death was due to haemorrhage and also septicemia caused by multiple injuries. Though the deceased sustained injuries on 11. 1987, he died 3 days later on 11. 1987 at 4.20 p.m. in the hospital. There is nothing to show that the injuries caused on the deceased were sufficient to cause death in the ordinary course of nature. However, the cumulative effect of the haemorrhage and septicemia had caused the death of the deceased. 16. The injuries that were inflicted on the deceased were not in the vital parts but only in the abdomen and the flanks. Therefore, it appears that the appellant had no intention of causing the death of the deceased but only to cause injuries on him in self-defence. As held in the decisions above, when this appellant used M.O.1 weapon against the deceased, it was not possible for him to weigh the force in golden scales to use against the opposite party as the imminent danger was against him and his brothers from the attack by the assailants namely the prosecution party. The appellant was well within his limits in exercising the right of self-defence. Therefore, it cannot be stated that he is guilty of the offence under Sec.304, Indian Penal Code. Therefore, the finding of the court below is liable to be set aside and the appellant has to be acquitted. 17. In the result, for the foregoing reasons, the conviction and sentence imposed by the court below are set aside and the appellant is found not guilty of the offence and he is acquitted of the charge. The appeal is allowed. 17. In the result, for the foregoing reasons, the conviction and sentence imposed by the court below are set aside and the appellant is found not guilty of the offence and he is acquitted of the charge. The appeal is allowed. Bail bond, if any, executed by the appellant is cancelled.