Judgment : T. JAYARAMA CHOUTA, J. ( 1 ) THE appellant Vijayan was tried for an offence of murder of his elder brother Bellarmin on 7-2-1998 at about 5-30 P. M. , by the Sessions Judge. Tirunelveli Division. Tirunelveli, in S. C. No. 283/1988 and he found the accused guilty for the said offence, by his Judgment dated 26-6-1998 and sentenced him to undergo imprisonment for life. The appellant had challenged said Judgment of conviction and sentence. ( 2 ) THE prosecution case, in brief is as follows: -The deceased Bellarmin the accused Vijayan and P. W. 2 Nixon are brothers. The deceased is the younger brother of the appellant/accused and Nixon is the last brother. The deceased Bellarmin was an unemployed person and was not doing any work and was always demanding money either from the accused or his mother. He was a vagabond. He used roam out and only comes to the house for, having meals. He was often quarreling with his brother and mother by demanding money for his personal expenses. If money is not given he used to fight with hem. On 7-2-1988, at about 5. 30 P. M, the deceased came to the house and demanded money from the accused, to which the accused replied that since his mother and sister had gone out, asked him to get money from them. P. W. 2 Nixon was also there. Since the deceased persisted in demanding money, the accused told him that he has no money and asked him to go out from the house. immediately the deceased got annoyed by the reply given by his brother and so saying he took up an axe which was lying there and attacked the switch board cot, water pan and caused damage to the house when the accused questioned the action of the deceased he attempted to cut the appellant with the axe. However, the appellant was able to snatch the axe from the hand of the deceased. In that process the accused sustained injuries on his left little finger, immediately the appellant attacked the deceased with the axe snatched from his hand on his head. The deceased fell down and blood was coming out P. W. 2 Nixon who was witnessing the incident ran away from the scene. The accused after seeing his brother lying dead went to the village Administrative Officer of Perugudi viz. The deceased fell down and blood was coming out P. W. 2 Nixon who was witnessing the incident ran away from the scene. The accused after seeing his brother lying dead went to the village Administrative Officer of Perugudi viz. P. W. 1 and narrated the incident at about 7 P. M. she wrote his report under Ex. P 2 and went to the place of incident, found the dead body lying there and prepared Ex. P 2. From there P. W. 1 took the accused with the axe in his hand to the Sub-Inspector of Police P. W. 8. , P. W. 8 on the basis of the statements in Exs. P1. And P2 registered a case in Cr. No. 33/88 under Section 300 of the Indian Penal Code. He prepared the First information Report under Ex. P 12 and forwarded the same to his superiors as well as to the jurisdictional Magistrate fie also phoned up to the inspector of Police about the factum of the accused being present before him. P. W. 11, the inspector of Police, who was incharge of Valiyoor Police Station took up the investigation at about 9. 15 p. m. He noticed the accused kept in. the police station. He collected the F. I. R. and arrested the accused. The inspector searched the accused and he seized the blood-stained lungi and shirt M. Os. 10 and 11 from the person of the accused. He also noticed that the accused also had sustained injury on his left little finger. He sent the accused to the hospital for treatment. P. W. G. the doctor examined the accused and noticed an abrasion lc. m. on the left little finger and issued the wound certificate under Ex. P 7 for the same. According to the Doctor the injury was simple. P. W. 11 then proceeded to the scene of occurrence alongwith the police constables. Since there was no proper light in the scene of occurrence on the next day morning he prepared the observation mahazar as per Ex. P3 and rough sketch under Ex. P. 13. He conducted the inquest between 7-30 a. m. and 10-00 a. m. on the dead body of the deceased in the presence of panchayatdars as per Ex. P 14. During inquest he recorded the statements of P. Ws. 1 to 3. P3 and rough sketch under Ex. P. 13. He conducted the inquest between 7-30 a. m. and 10-00 a. m. on the dead body of the deceased in the presence of panchayatdars as per Ex. P 14. During inquest he recorded the statements of P. Ws. 1 to 3. He had sent the dead body through the police constable P. W. 10 along with Ext. PS requisition for postmortem examination. P. W. 6 the Medical Officer attached to the Government Hospital, Panagudi on receipt of the requisition conducted autopsy on the dead body of the deceased at 4 P. M. , and noticed the following injuries: -1. A lacerated wound 8 cm. x 1/2 cm. x 1 cm. present on the occipital region of scalp 11 cm. above the left ear. 2. A lacerated wound 5 cm. (1) x 0. 5 cm (b) x 1 cm. (d) present 1 cm. below the first wound. 3. A lacerated injury 4 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present behind the left ear. 4. A lacerated would Scm. (1) x 1/2 cm. (b) x 1 cm. (d) present below the second injury. 5. A lacerated wound 6 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present below 2nd injury. 6. A lacerated wound 2 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present in the right frontal region of scalp. 7. A lacerated wound 3 cm. (1) x 1 cm. (b) x 1 cm. (d) present below the right ear. 8. A lacerated wound 4 cm. (1) x 1 cm. (b) x 1 cm. (d) present 1 cm. below the 7th wound. 9. A lacerated wound 6 cm. (1) x 1 cm. (b) x 1 cm. depth present 8 cm. over the right ear. 10. An abrasion 5 cm. (1) present on the right chest wall. 11. An abrasion 4 cm. (1) present on the right axilla. 12. An abrasion with contusion 3 cm. (1) present in the right infrasapular region of back. 13. On dissection of scalp there is comminuted fracture of the left frontal, perietal and temporal bones. 14. On removal of the brain, there is fracture of the anterior crania fossa middle oranial fossa on the base of skull bleeding present. 15. 12. An abrasion with contusion 3 cm. (1) present in the right infrasapular region of back. 13. On dissection of scalp there is comminuted fracture of the left frontal, perietal and temporal bones. 14. On removal of the brain, there is fracture of the anterior crania fossa middle oranial fossa on the base of skull bleeding present. 15. On Dissection of injury No. 12, there is fracture of 8, 9, 10, 11, and 12th ribs on the right side. On dissection a lacerated injury 12 cm. (1) x 3 cm. (d) x 3 cm. present on the right lobe of liver. A lacerated injury 3 cm. (b) x 3 cm. (b) x 3 cm. (d) present on the right kidney. Large perimephric haemorrhage present. Tongue not protruded. Bleeding from the right ear present. Groin Genetalia Organs- NAD. Hand clenched empty. Opening of thorax ribs vide injury. Heart: wt-902. Vessels empty. Lungs: weight each 1102 firm. No injury: Hyoid bone is intact. Stomach - Dilated weight with contents - 1202 contain 202 gms. Full welling chocolate colour liquid present Liver-weight 4702 vide injury; spleen weight 602 firm Right Kidney-weight 402 vide injury. Left kidney- No injury. Small intestine-pale empty; large in testime-empty. Pelvis-NAD, opening of head; vide injury; Bones weight vide injury, spinal column soft parts, Bones; no injury, Atlas and Axis: No injury The doctor was of the opinion that the deceased would appear to have died of shock and haemorrhage as a result the injuries sustained by him over the head and abdomen injuries 13, 14 and 15 are fatal and the death would appear to have occurred 20-22 hours prior to autopsy. The doctor issued post mortem certificate as per Ex- p 6. At 10-15 a. m. P. W. 11 seized M. O. 5 damaged ever silver water pan. M. O. 6 damaged switch board cot frame in two pieces. M. O. 2 bloodstained and M. O. 3 and without blood and M. O. 4 under a cover of mahazar Ex. p 4. He recorded the statements of few more witnesses. After receiving reports of the chemical examiner and the Serologist as per Exs. Plo and p ii and after completing-the in. ( 3 ) THE Sessions Judge on committal framed charge under Section 302 I. P. C. The accused pleaded not guilty. On behalf of the prosecution P. Ws. p 4. He recorded the statements of few more witnesses. After receiving reports of the chemical examiner and the Serologist as per Exs. Plo and p ii and after completing-the in. ( 3 ) THE Sessions Judge on committal framed charge under Section 302 I. P. C. The accused pleaded not guilty. On behalf of the prosecution P. Ws. 1 to 11 were examined and Exs p i to p 14 were got marked and M. Os. 1 to 11 were produced. No witness was examined nor any document was produced on behalf of the defence. The Sessions Judge after conclusion of the trial arid after putting all them criminating circumstances which were against the accused in the statement under Section 313 Cr. P. C. convicted and sentenced as mentioned above. ( 4 ) WE heard the learned Advocate Mr. S. Shanmugavelayutham appearing on behalf of the appellant and the learned Additional Public Prosecutor appearing on behalf of the respondent. They took us through the material evidence and relevant documents of, the case. ( 5 ) LEARNED Advocate for the appellant submitted that the court below was not justified in placing reliance on the evidence of P. W. 1 and Ex. P1. the extra judicial confession made by the accused before P. W. 1 to convict the accused especially in view of the fact that the so-called eye witnesses have not supported the prosecution case. He pointed out that apart from this piece of evidence there is no other evidence to connect the accused in the said crime. His further argument was that the evidence of P.W. 1 and Ex. p i cannot be acted upon in view of the fact that P. W. 1 was a stranger to the accused and it is hard to believe that he would have gone and made the extra judicial confession before a stranger. His next argument was that the act committed by the accused is protected by the right of private defence. His last submission was that the said act has been committed by the accused in the spur of the moment and in a sudden provocation. On these grounds. He submitted before us that the Sessions Judge was not justified in convicting the accused. ( 6 ) WE heard the learned Additional Public Prosecutor on these points. His last submission was that the said act has been committed by the accused in the spur of the moment and in a sudden provocation. On these grounds. He submitted before us that the Sessions Judge was not justified in convicting the accused. ( 6 ) WE heard the learned Additional Public Prosecutor on these points. He pointed out that the Sessions Judge was justified in placing reliance on the evidence of P. W. 1 and Ex. P 1. He also pointed out that there are materials to show that the accused was not a stranger to P. W. 1 and he know P. W. 1 and that being so there is nothing unusual for the accused to go and report this matter before P. W. 1. His further submission was that the accused cannot claim right of private defence in view of the fact that he had snatched the weapon viz. , M. O. 1 axe from the hand of the deceased and hence there was no, need for the accused to commit the murder of the deceased. As far as the sudden provocation is concerned the learned Additional Public Prosecutor has submitted that this plea is not available to the accused in view of the fact that there was exchange of words between the accused and the deceased and a wordy quarrel continued for sometime. On these points he submitted before us that the Sessions Judge was justified in convicting the accused. ( 7 ) IT is not disputed before the trial court and even before us the learned advocate for the appellant had not disputed that Bellarmin met with the homicidal death in view of the evidence of the Doctor P. W. 6 and the postmortem certificate Ex. P 6, wherein the doctor has clearly stated that the deceased would appear to have died of shock and haemorrhage as a result of the injury sustained by him over the head and abdomen. The prosecution has placed reliance on the evidence of P. W. 1 and Ex. P1 the extra judicial confession given by the accused Ex. P-i has been produced before us. The said extra judicial confession reads as follows: Today on 7-2-1998 Sunday at about 7 p. m. 1 was at my Village Administrative Office along with Village menial by name Arumugam. At that time Vijayan son of Jayasingh aged 21 residing, at No. 6/19. P1 the extra judicial confession given by the accused Ex. P-i has been produced before us. The said extra judicial confession reads as follows: Today on 7-2-1998 Sunday at about 7 p. m. 1 was at my Village Administrative Office along with Village menial by name Arumugam. At that time Vijayan son of Jayasingh aged 21 residing, at No. 6/19. 11 Lane. Kavalkinaru village appeared before me with blood stained axe with wooden handle and gave a statement. 1 am residing at 2nd Lane Kavalkinaru Panchayat Mantram Street along with my mother Grace elder sister Vasanthi my elder brother Ballarmin my younger brother Dennis and Nixon. My father died 10 years back. We were leading our life by working as Coolies. My elder brother Bellarmin was not doing any work. He was wandering like a vagaband. He used to come to his house only for taking food. He used to pick up quarrels frequently with my mother and ourselves by demanding money for his expenses. On 7-2-1998 at about 5. 30 P. M. my elder brother came to my house. He demanded money for his expenses since I was at home. I told him that mother and elder sister have gone out and to ask them after they return. Nixon alone was available in the house. He asked you mother fucker give me money. I asked him to go out since I have no, money. He replied that I have no right to ask him to get out. Saying so, he picked up an axe lying inside the house and caused damage to switch board cot, water pan (boul) in the house. I questioned him why he is doing injustice like this. He was aimed to cut me with the same axe. I snatched the axe. I sustained a simple injury on my left hand little finger. Then I attacked him with front side and backside of the axe repeatedly on his hand. He fell down. Blood was oozing out. My younger brother Nixon ran away on seeing the occurrence. When I looked at my elder brother he was found dead. Then my mother sister and all came to the house. They shouted against about the incident for killing my brother. This incident well known to the neighbours also My lungi and shirt which were worn by me got bloodstained. My younger brother Nixon ran away on seeing the occurrence. When I looked at my elder brother he was found dead. Then my mother sister and all came to the house. They shouted against about the incident for killing my brother. This incident well known to the neighbours also My lungi and shirt which were worn by me got bloodstained. I was not aware of what to do and went outside the village and now 1 am giving this statement about the occurrence. ( 8 ) P. W. 1 has stated that he is the Village Administrative Officer of Perungudi Village. On 7-2-1998 at about 7 P. M. she was in her office attending to work. At that time the accused came to her Office with bloodstained axe M. O. 1. The accused gave statement about the occurrence and on his dictation he wrote down the same which is marked as Ex. P 1. Afterwards he went to the scene of occurrence along with the accused and the Village menial Arumugam. He found the deceased Bellarmin lying dead with bleeding injuries in the house. She prepared a spot report which is marked as Ex. P. 2. After that she went to Perungudi Police Station along with the accused. Exs. P 1 and P 2 and M. O. 1 to take further action. The sub-Inspector was available there and she produced the accused before the sub-Inspector of Police. In the cross examination no motive has been suggested to this witness as to why she should depose falsely against the accused. The only answer elicited in the cross-examination, which is favorable to the defence is that she does not know the accused before he gave the confession. But, a suggestion was put to this witness that she was not known to the accused before the accused gave the statement to her, which has been denied by this witness. She has admitted that the family members of the accused were known to her and she knew them because they used to come to pay tax. Some suggestions were put to this witness regarding interpolation of the statement made by the accused. Apart from this nothing has been elicited in the cross-examination to discard the evidence of P. W. 1 and the contents found in Ex. P 1. Hence we believe the version given by P. W. 1 and also the confession under Ex. Some suggestions were put to this witness regarding interpolation of the statement made by the accused. Apart from this nothing has been elicited in the cross-examination to discard the evidence of P. W. 1 and the contents found in Ex. P 1. Hence we believe the version given by P. W. 1 and also the confession under Ex. P 1. ( 9 ) A reading of Ex. P 1 would clearly go to show that the deceased Bellarmin was not doing any work and he was wondering like a vagabond and he used to come to the house only for taking food and he used to pick up quarrels with his mother and the accused and others be demanding money for his expenses. On 7-2-1998, at about 5. 30 P. M. the deceased came to the house and he demanded money for his expenses with the accused since he was alone in the house. He told him that the mother and the elder sister had gone out and asked him to collect the money from them after they returned. His another brother Nixon was also available in the house then the accused asked the deceased to collect the money from the mother and sister. He used abusive and fifthly words saying ye bastard. The accused being annoyed by the word uttered by the deceased asked him to get out from the house. immediately, the deceased picked up an axe lying inside the house and caused damage to the switch board cot, and water pan in the house. When the accused questioned him as to why he was causing demanded to the properties the deceased aimed at him to cut him with same axe. However, the accused snatched the axe from the deceased and in that process he has sustained simple injury on his little left finger. Then he attacked the deceased on his head with the axe. ( 10 ) A reading of this statement given by the accused before P. W. 1 clearly goes to show that there was threat to his life. The deceased damaged the properties and he was armed with axe and was aiming at the accused, Fearing that would be the consequence from the act of the deceased, the accused snatched the axe from the deceased and attacked him. The deceased damaged the properties and he was armed with axe and was aiming at the accused, Fearing that would be the consequence from the act of the deceased, the accused snatched the axe from the deceased and attacked him. At that moment it would be very difficult to think about the consequences the deceased had already damaged the house properties and he was in an aggressive state of mind and he was using filthy language against the accused as well as his mother and he was armed with a deadly weapon viz. , axe and was aiming at the accused. In these circumstances the act committed by the accused will be protected by the right of private defence of person. ( 11 ) HOWEVER, the learned Additional Public Prosecutor submitted before us that when the accused snatched the weapon from the hands of the deceased, he will not have the right of private defence to attack the deceased. Here is a case, where the deceased had already destroyed some of the properties of the house and he was using abusive words against the accused and his mother and he was armed with a dangerous weapon viz. , axe and he was aiming at the accused. Under these circumstances, it cannot be stated that the accused had no right of private defence the moment he snatched the axe from the hands of the deceased. We are of the considered opinion that the accused has committed the said act in exercise of his right of private defence. Accordingly, we hold that the Sessions Judge was not justified in convicting the appellant for an offence punishable under Section 302 I. P. C. We held that the appellant/accused has committed the said act in exercise of his right of private defence and he is entitled to the same. ( 12 ) IN the result the appeal is allowed and the appellant is acquitted of the charge. Since the appellant is on bail the bail bond executed by him shall stand cancelled. Appeal allowed.