Judgment :- J.B. Koshy, J. Appellant was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- for offences punishable under S.302 of the Indian Penal Code. Since he was not able to engage a lawyer, his case in the Sessions Court was conducted by a lawyer arranged by the State. In this appeal filed from Jail also, this Court has appointed a State Brief for arguing his case. 2. According to the prosecution, due to the previous enmity the accused had with the deceased, the accused, at 0.45 hours on 12-3-2001 at a place called ‘Thadam’ at the northern side of the bridge of the canal at Perinjam, inflicted two cut injuries with a chopper on the back side of the head of the deceased Velappan Nair and thereafter the accused attempted to cause cut injury on the head which was warded off by the deceased Velappan Nair and consequently the said attack caused cut injuries on the left forefinger of Velappan Nair. The accused again inflicted cut injuries on the face of Velappan Nair just below the left eye and thereafter with the blunt edge of the said chopper, the accused inflicted a cut at the chest of Velappan Nair and pushed Velappan Nair with the hands of the accused. Consequently, Velappan Nair fell down and the accused again caused cut injuries at the neck of Velappan Nair and Velappan Nair succumbed to the injuries on the spot. 3. PW1 gave Ext.P1 first information statement to the effect that the dead body of his elder brother was seen lying in a pool of blood with injuries in such a manner that a portion of the body was on the bund and the rest of the body was on the canal bridge at a place called Perinjamkadavu. PW1 is not an occurrence witness. He received information regarding the death of Velappan Nair on 12-3-2001 at 6-00 a.m. He reported the matter immediately. PW2 is stated to be an eye witness. According to him, he was going to his house, which is situated nearby, after seeing a temple festival by midnight. He also stated that when he reached 50 metres away from the canal bridge, he heard deceased Velappan Nair abusing the mother of the accused with bad words. PW2 is stated to be an eye witness. According to him, he was going to his house, which is situated nearby, after seeing a temple festival by midnight. He also stated that when he reached 50 metres away from the canal bridge, he heard deceased Velappan Nair abusing the mother of the accused with bad words. Accused was sitting on the verandah of his house and on hearing the abusive word, the accused went near the bridge and caused injuries on Velappan Nair. He further stated that after the first two stab injuries on the back side of the head of Velappan Nair, Velappan Nair stood there touching the hand rail at the bridge. Then, cut injuries were again inflicted from the front. He fell down and again injuries were inflicted. PW2 identified the weapon used by the accused and narrated the manner in which injuries were inflicted. PW3, a neighbour, deposed that he heard the sound of Velappan Nair calling abusive words on the accused. Since it was in the night, he did not go out. He recognised those words of Velappan Nair by sound and he is very close with the deceased Velappan Nair. PW4 is conducting a tea shop at a nearby place. According to him, at about 5-45 a.m. the accused came to his shop and told him that someone called abusive words using his mother’s name and he had Finished that person. He also identified the dress worn by the accused. PW5 is a rubber tapper by profession. According to him, he had acquaintance with both the deceased and the accused. The accused came to his house for climbing the coconut tree on some day prior to the date of incident. At that time an old chopper was taken by the accused from his house. PW5 identified MO1 chopper and stated that MO1 was the chopper taken by the accused from his house. 4. PW6 conducted postmortem and issued Ext.P3 postmortem certificate. It shows the following injuries: “1. Incised wound 9 x 3 x 2 c.m. oblique placed on the right side of face and under chin with avulsion of lower margin, its upper outer end 1.5 c.m. below the lobule of ear. The muscles underneath, submandibular salivary gland and facial artery were found cleanly cut. It shows the following injuries: “1. Incised wound 9 x 3 x 2 c.m. oblique placed on the right side of face and under chin with avulsion of lower margin, its upper outer end 1.5 c.m. below the lobule of ear. The muscles underneath, submandibular salivary gland and facial artery were found cleanly cut. 2 Incised wound 3.5 x 1 x 1 c.m. obliquely placed on the left side of face, its upper outer end 2 c.m. outer to eye. The bone underneath was cleanly cut. 3. Incised wound 9 x 0.3 x 0.9 x 0.1-1 c.m. obliquely placed on the left side of head, with maximum breadth and depth in the middle with its lower front and 2.5 c.m. outer and 1 c.m. above the outer end of eye brow. Injury Nos. 2 and 3 were in the same oblique line. 4. Two incised wounds 7 x 0.5 x 1 and 9 x 0.5 x 1 c.m. obliquely placed parallel to each other 0.8 c.m. apart on the right side of back of head the lower outer end of the former being 11 c.m. behind the top of ear. The occipital bone underneath the incised wounds were found correspondingly cut for a depth of 1 c.m. Brain showed flattening of gyri and narrowing of culcil. 5. Incised wound 3 x 0.2 x 0.1 cm., obliquely placed on the left side of face parallel to and 2 c.m. outer to the upper inner end of injury No. 2. 6. Lacerated Wound 0.5 x 0.2 x 0.2 c.m. on the inner aspect of upper lip 2 c.m. to the left of midline with a corresponding contusion 0.8 x 0.5 c.m. on the outer aspect of the lip. 7. Lacerated wound 1 x 0.5 x 0.5 c.m. on the inner aspect of lower lip just to the left of midline. 8. Contused abrasion 0.5 x 0.2 cm on the outer aspect of lower lip left of midline. 9. Incised wound 2.5 x 0.2 x 0.2 c.m. horizontal on the right side of front of neck 3 c.m. above the inner end of collar bone. 10. Incised wound 1 x 0.2 x 0.2 c.m. on the left side of front of chest 1.5 c.m. below the inner end of collar bone. 11. 9. Incised wound 2.5 x 0.2 x 0.2 c.m. horizontal on the right side of front of neck 3 c.m. above the inner end of collar bone. 10. Incised wound 1 x 0.2 x 0.2 c.m. on the left side of front of chest 1.5 c.m. below the inner end of collar bone. 11. Contused abrasion 3.5 x 0.5 c.m. obliquely placed on the front of right shoulder its upper inner and 6 c.m. below the top of shoulder. 12. Two contused abrasions 7 x 0.3 c.m. and 5 x 0.3 c.m. 0.5 c.m. apart and merging at the outer end on the right side of front of chest parallel to and 1.5 c.m. below injury No.(ii) with a contusion 6 x 6 x 0.5 c.m, in between and above it. 13. Incised amputating wound 2.5 x 0.5 x 1 c.m. on the left fore finger at the root of nail with the distal end remaining attached through a skin tag on the front aspect.” The doctor has opined that the death of Velappan Nair was due to head injury. PW6 has further stated that injury Nos.1 to 4 in Ext.P3 resulted in Oedema of brain. PW6 further stated that each of injury Nos.1 to 4 is independently sufficient to cause death in the ordinary course of nature. PW6 has also stated that injury Nos.1 to 6 in Ext.P3 could be caused by a heavy cutting weapon like MO1 chopper. It has also been brought out in evidence of PW6 that injury Nos.5, 9, 10 and 13 in Ext.P3 could be caused with MO1 chopper. PW6 has further stated that injury Nos. 11 and 12 could be caused with MO1 if the blunt edge of MO1 comes into contact with that part of the body forcibly. PW6 also proved Ext.P4 certificate issued by the Joint Chemical Examiner after conducting the examination of the viscera, blood and urine of the deceased. Viscera, blood and urine of the deceased contained alcohol. As per Ext.P7 inquest report, MO8 bottle containing arrack was recovered from the dead body. 5. Originally, case was registered on getting information as to the mysterious death; but after questioning PW1 etc. on the basis of Ext.P9 report, a case was registered under S.302 IPC and accused was arrested on 14-7-2001 and by 3-30 pm. As per Ext.P7 inquest report, MO8 bottle containing arrack was recovered from the dead body. 5. Originally, case was registered on getting information as to the mysterious death; but after questioning PW1 etc. on the basis of Ext.P9 report, a case was registered under S.302 IPC and accused was arrested on 14-7-2001 and by 3-30 pm. recovery of MO1 weapon as well as MOs 2 and 3 shirt and lunki were effected on the basis of confession made by the accused. The Sessions Court convicted the accused under S.302 IPC on the basis of ocular evidence of PW2 which is corroborated by the evidence of PW3 as well as the extra-judicial confession made to PW4 and also on the basis of the recovery under S.27 of the Evidence Act. It is also pertinent to note that chemical analysis report showed that blood group of the accused was O+ve. The blood detected from MO1 on recovery was that of his blood group. The blood contained on MO2 shirt of the accused also contained same blood. Considering the totality of evidence, accused, was convicted under S.302 IPC. It is contended before us that the evidence of PW2 cannot be believed at all as he has seen the incident at a distance of 50 metres away and, that too in the moon light only. It is also stated that even though there was a bridge of 3 metres and a pathway, the nearby properties were planted with rubber and then he could not have seen the incident at a distance of 50 metres and, in any event, he could not have seen MO1 weapon used. Even if accused has inflicted the injuries as he has stated, he cannot be believed. The decision reported in Mohammed v. State of Kerala (1962 KLT 120) was cited by “the counsel for the appellant to show that he could not have seen the incident at a distance of 50 metres at midnight in the moon light only. The Division Bench also noticed Modi’s Medical Jurisprudence and Toxicology, 13th edition, and quoted as follows: “According to Tidy, the best known person cannot be recognised in the dearest moonlight beyond a distance of seventeen yards. Colonel Barry, I.M.S., is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. Colonel Barry, I.M.S., is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. To define the feature even at a shorter distance is practically impossible by moonlight”. Dr. Vincent in Legrand and Sattle’s ‘Legal Medicine’ says that: “ …..presuming the eyesight to be normal by moon-light one can recognize, when the moon is at the quarter, persons at a distance, of 21 ft, in bright moonlight at from 23 to 33 ft., and at the very brightest period of the full moon, at a distance of from 33 to 36 ft. In tropical countries the distances for moon-light may be increased.” Here, it is more than 50 yards and possibility of PW2 seeing the accused is remote. As we have already stated that the accused heard the abusive words at a distance of 50 metres, but, he saw the incident near the bridge and the incident happened at the other, side of the bridge. However, he could not have identified the weapon used and part of his statements are exaggeratory. According to him, in the midnight he was returning to his house alone after a temple festival and after seeing the incident, he did not go to his house nearby; but, he went to his wife house which is more than 5 k.m. away. Even if he is believed that after seeing the fight he did not go to his house nearby out of fear, he would not have went near there to see the minute details of the attack as he stated before the Court. Presence of PW1 at the place of incident at that odd hour itself is doubtful. As far as the evidence of PW3 is concerned, We see no ground to disbelieve PW3. PW3 is a neighbour who is not inimical to the accused. He stated that he heard in the night the deceased abusing the accused. PW3 was brought by the prosecution to show motive. It is very difficult to believe PW4 who is a tea shop owner because, according to him, he opens the tea shop at 5 o’clock and closes the shop at 8-00 p.m. and the accused came and made an extra-judicial confession at 5-45 a.m. The alleged confession to the tea shop owner was not made immediately after the incident. It is very difficult to believe PW4 who is a tea shop owner because, according to him, he opens the tea shop at 5 o’clock and closes the shop at 8-00 p.m. and the accused came and made an extra-judicial confession at 5-45 a.m. The alleged confession to the tea shop owner was not made immediately after the incident. The incident occurred at 0-45 a.m. He went at 5.45 a.m. only to the tea shop if the evidence of PW4 is believed. Further, it is not in evidence that PW4 is a man whom accused was reposing confidence so as to make an extra-judicial confession. Extra-judicial confession is a weak piece of evidence (Jagta v. State of Haryana, AIR 1974 SC 1545) and it can be believed without corroboration, only if, it is made to a credible person to whom the accused may repose confidence like a responsible person in the nearby locality or a close relative etc. The story that he kept open the tea shop at 5-00 a.m. in the remote village itself is not believable and, in any event, and if people use to go to that shop from 5 o’clock onwards, there may be others also in the tea shop for taking tea and the extra-judicial confession said to have been made by the accused to him for reasons whatsoever cannot be believed. There is no evidence to show that PW4 and accused were close friends. There is no reason for him to make such an admission to PW4 which is prejudicial to his own interest and safety. (See: Tarseem Kumar v. Delhi Administration - AIR 1994 SC 2585). It is extremely improbable that the accused made such a confession to PW4. Alleged extra-judicial confession is also not clear and unambiguous and connects the accused in that crime. 6. The other piece of evidence is regarding the recovery. MO1 was recovered on the basis of information furnished by the accused from the sister’s house in concealed manner and it was recovered in the presence of witnesses. That witness was examined as PW8. The above MO1 contained blood stains of ‘O’ group which is that of the deceased. MO1 recovery points out to the guilt of the accused. In fact, MO2 shirt was also recovered on the very same day which was kept in an ‘aya’ along with the lunki and the lunki contained blood stains. That witness was examined as PW8. The above MO1 contained blood stains of ‘O’ group which is that of the deceased. MO1 recovery points out to the guilt of the accused. In fact, MO2 shirt was also recovered on the very same day which was kept in an ‘aya’ along with the lunki and the lunki contained blood stains. Group of blood was not identifiable from the blood stains so found out as his blood. Merely because witness to, the-seizure mahazar to the shirt was not examined, we cannot reject the same. Recoveries made on the basis of confession are admissible under S.27 of the Evidence Act. This connects the accused with the murder of the deceased. Recovery of MO1 which contained the same O+ve group blood of the deceased at the disclosure by the accused is a very relevant factor. The mahazar witness to that recovery was also examined. However, the question is how and what manner it happened. We have already stated that the sole eye witness PW2 was not telling the facts correctly and it lacks credibility and extra judicial confession to PW4 cannot be believed. But, evidence of PW3 and recovery of MO1 knife on the basis of confession made by the accused and other circumstantial evidence would show that the accused and accused alone is responsible, for the homicidal death of the deceased. Even according to the prosecution, the accused was sitting in the verandah of his house. It is also not disputed that the nearby property was owned by the accused as can be seen’ from the scene mahazar and recovery report. Both PWs2 and 3 have stated that the death of Velappan Nair, occurred without any provocation by the accused. Deceased called abusive words on his mother that too after midnight, when accused was sitting at his house quietly. Only after the deceased abused, he lost self-control and by such grave and sudden provocation, there Was fight which resulted in the death. The deceased was fully drunk and he called abusive words, that too, involving his mother in the night from the road in front of the house of the accused. Such provocation will upset a reasonable person, (See the observations in Madanlal v. State of Punjab, 1992 SCC (Cri) 674 and V. Sreedharan v. State of Kerala - AIR 1992 SC 754). Then the fight might have occurred. Such provocation will upset a reasonable person, (See the observations in Madanlal v. State of Punjab, 1992 SCC (Cri) 674 and V. Sreedharan v. State of Kerala - AIR 1992 SC 754). Then the fight might have occurred. Blunt injuries on the finger of the deceased, abrasion etc. show that the death occurred in the course of the fight. We are of the opinion that the accused is entitled to the benefit of Exception 1 of S.300 IPC. There was sudden provocation. The accused was sitting in the verandah of his house. In the odd hour, the deceased went near there and from the pathway he used abusive words and with the use of abusive words against his mother and the accused immediately jumped and in the sudden fight the death occurred. Exception 4 is also applicable. It is, of course, true that very serious injuries have caused. Therefore, accused cannot say that he had no knowledge that the injuries inflicted by him were sufficient to cause death in the ordinary course of nature. It is originated due to the sudden and grave provocation and during the fight. Therefore, we are of the opinion that the accused can be convicted under S.304 Part II of the Indian Penal Code and not under S.302. Therefore, his conviction and sentence under S.302 IPC is set aside and he is convicted and sentenced to undergo rigorous imprisonment for five years under S.304 Part II of IPC with right of set off. The appeal is allowed partly.