ORDER : S.N. Variava, J. - This appeal is against the judgment of the High Court dated 21-9-1994. 2. Briefly stated, the facts are as follows: The respondent had one brother by the name of Ayyappa. The respondent, his brother, their mother, their sister and brother's wife were all staying in the same house. The respondent was not married. Even though he was working on daily wages, he was not contributing anything towards the household expenses. Whenever he was asked to contribute he used to say that he would start contributing only after he got married. His brother Ayyappa therefore was asking the respondent to get married. 3. On 20-4-1992, the respondent was sleeping in the house. His brother came from outside and asked the respondent to get up, go and cut the hair and shave so that he could go to see a girl. The respondent refused. The brother, therefore, picked up a billet and advanced towards the respondent. The respondent then picked up an axe and hit his brother near the lips. After the brother fell down, he gave a second blow on the left side of the head. As a result, Ayyappa died. 4. This incident was witnessed by the wife of the deceased, namely, Irawwa and Rangawwa, the mother of the respondent and the deceased. The wife and the mother had given evidence in the court as PWs 1 and 2. Except for minor discrepancies their evidence was consistent and could not be shaken in the cross-examination. 5. Before the trial court, the defence taken was that the deceased fell down and hit his head on a sickle which was lying on the floor. The trial court believed the evidence of the eyewitnesses and disbelieved the defence. The trial court convicted the respondent under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment. 6. Before the High Court, for the first time a defence was taken up that the respondent had exercised his right of private defence. This argument found favour with the High Court. The High Court has acquitted the respondent on the ground that the respondent had merely exercised his right of private defence. 7. We have read the evidence of PWs 1 and 2 and the evidence of the other witnesses. We are unable to agree with the reasoning of the High Court. This argument found favour with the High Court. The High Court has acquitted the respondent on the ground that the respondent had merely exercised his right of private defence. 7. We have read the evidence of PWs 1 and 2 and the evidence of the other witnesses. We are unable to agree with the reasoning of the High Court. It is to be noted that the respondent had not taken up this defence before the trial court. He has not mentioned in his statement recorded under Section 313 of the Criminal Procedure Code, that he apprehended that the deceased would kill him or cause him grievous hurt. The evidence clearly establishes that the two were brothers. Ayyappa was merely telling the respondent to get up, shave and have a haircut so that he could go and see a girl. Even though Ayyappa might have picked up a billet, it is clear that the purpose would only be to get the respondent get up and to go for a shave and a haircut. There could thus, under the circumstances, be no apprehension that death or grievous hurt would be caused. Even otherwise, we find no justification for the second blow after the deceased had fallen down. In our view, for the abovementioned reasons, the judgment of the High Court cannot be maintained. It is accordingly set aside. 8. However, we are of the opinion that the incident happened on the spur of the moment. This would thus be a case under Section 304 Part I of the Indian Penal Code. We accordingly convict the accused under Section 304 Part I Indian Penal Code and sentence him to imprisonment for a period of ten years. The respondent be taken into custody forthwith for serving out the remaining part of sentence. 9. The appeal is accordingly allowed. Appeal allowed.