Judgment :- (Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the judgment of conviction dated 29.10.1998 passed in S.C.No.30 of 1998 on the file of the Second Additional District and Sessions Court-cum-Chief Judicial Magistrate Court, Dharmapuri at Krishnagiri.) The appellant is the second accused in S.C.No.30 of 1998 on the file of the II Additional District and Sessions Court-cum-Chief Judicial Magistrate Court, Dharmapuri at Krishnagiri. As per the judgment dated 29.10.1998 made in the above case, A2 was convicted and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 304 Part-I, I.P.C. 2. Brief facts that led to the filing of the appeal are as follows:- "(a) Appellant/A2 is the son of A1. A3 is the wife of A2. A4 is the sister of A2 and daughter of A1. P.W.1 is the wife of the deceased Venkatachalam. P.W.2 is the brother's wife of P.W.1. A1 to A3 and the deceased Venkatachalam are neighbours. There were pathway dispute between them. Due to the quarrel on the previous day at 2.30 p.m. with regard to parking of cycle in the pathway, at the time of occurrence on 2.3.1996 at 8.30 a.m., in Kammalar Street, Palacode, the appellant/A2 and also A1 stopped the deceased Venkatachalam when he was taking the cycle from his house through the pathway, which made the deceased to park the cycle inside the house and to sit in front of the door entrance of the house. A1 to A4 scolded P.W.1 and the deceased. A1 caught the hands of the deceased from behind and A2 stabbed the deceased on the chest with "Kuthoosi" (M.O.2) four or five times. A3 and A4 beat the deceased with hands on his chest. When P.W.1 intervened, she was also beaten. Then the deceased Venkatachalam tried to bring iron rod from behind the house and while bringing the iron rod, the deceased swooned and fell down. At that time the iron rod touched A1. Then all the accused run away taking the "Kuthoosi". The occurrence was witnessed by P.W.2 Danalakshmi and P.W.3 Bakyalakshmi. On hearing noise of P.Ws.1 and 2, P.W.4 Ankuraj, Pattabi and Kumaran came to the occurrence and took the deceased to the Palacode Government Hospital. At that time the iron rod touched A1. Then all the accused run away taking the "Kuthoosi". The occurrence was witnessed by P.W.2 Danalakshmi and P.W.3 Bakyalakshmi. On hearing noise of P.Ws.1 and 2, P.W.4 Ankuraj, Pattabi and Kumaran came to the occurrence and took the deceased to the Palacode Government Hospital. P.W.1 also accompanied them and the deceased died within half an hour in the hospital after he was admitted. (b) P.W.6 Dr.M.T.Murugesan, attached to Palacode Government Hospital examined the injured deceased and found the following injuries:- "(1) A stab injury over the front of right chest 2" away from nipple 1 cm x 1 cm x deep to chest. (2) A stab injury over the front of chest in midline 1 cm x 1 cm x bone deep. (3) A stab injury over the right chest in the costal margin 1 cm x 1 cm x bone deep. (4) A stab injury over the front of left chest in the cardiac region 4" above and inner to nipple 1 cm x 1 cm x deep to chest. (5) A stab injury over the front of chest in the left costal margin 1 cm x 1 cm x bone deep." The accident register issued by the Doctor P.W.6 is Ex.P-6. The injured deceased was admitted as inpatient in the hospital. P.W.6 also issued intimation memo Ex.P-7 on 2.3.1996 to the police. The deceased died at 9.15 a.m. due to injuries sustained at the time of occurrence. (c) Doctor P.W.6 also examined A1, who came to the hospital and found the following injuries: "(1) An abrasion in right thumb 2 cms x 1 cm in the dorsal aspect. (2) A diffuse contusion over the dorsum of right hand at left base of right thumb 2 cms x 2 cms." The accident register extract issued by doctor P.W.6 is Ex.P-15. Doctor P.W.6 referred A1 to Government Hospital, Dharmapuri for taking X-Ray. Doctor P.W.6 has opined that the injuries caused to A1 were simple in nature. (d) P.W.1 on the death of her husband in the hospital, went to the police station and gave the complaint Ex.P-1 to P.W.11, the Inspector of Police, Palacode Police Station, who registered the same in Crime No.148 of 1996 under Section 302 I.P.C. Printed F.I.R. is Ex.P-16. (d) P.W.1 on the death of her husband in the hospital, went to the police station and gave the complaint Ex.P-1 to P.W.11, the Inspector of Police, Palacode Police Station, who registered the same in Crime No.148 of 1996 under Section 302 I.P.C. Printed F.I.R. is Ex.P-16. He went to the Government Hospital, Palacode and conducted inquest in front of the mortuary on the dead body of the deceased. Inquest report is Ex.P-17. P.W.11 examined witnesses P.Ws.1, 2 and 4 and also Kumaran and Pattabiraman and recorded their statements. P.W.11 went to the scene of occurrence at 3.30 p.m., prepared observation mahazar Ex.P-2 and rough sketch Ex.P-18. P.W.11 recovered bloodstained mud (M.O.5), sample mud (M.O.6), broken bangles (M.O.1) of P.W.1 under mahazar Ex.P-3 in the presence of P.W.5 Rangan and one Shanmuganathan. P.W.11 made arrangement to take photos at the scene of occurrence. P.W.9 took photos. Negatives are M.O.7. (e) P.W.11 arrested A2 at Palacode bye-pass road opposite and near to Tomato Market at 5.15 p.m. on 2.3.1996. P.W.11 recorded confession statement of A2 in the presence of P.W.4 and one Shanmuganathan, the admissible portion is Ex.P-4. A2 took P.W.11 and the witnesses to his house and produced "Kuthoosi" M.O.2 and the same was recovered under mahazar Ex.P-5 in the presence of the above witnesses. M.O.2 is of the length of 18 c.m. and the blade portion of which is 8 c.m. and the handle is 5 c.m. breadth and 3 c.m. length. P.W.11 arrested A1, A3 and A4 at 7.00 p.m. on 2.3.1996. He recorded the statement of A1, Ex.P-19 and on return to the police station registered the same in Crime No.149 of 1996 under Section 324 I.P.C. The printed F.I.R. is Ex.P-20. He sent the statement of A1 Ex.P-19 and the F.I.R. Ex.P-20 to the Court. He sent the accused for remand. He also sent requisition to the Court to send the material objects to the Chemical Examination. He also sent requisition Ex.P-9 to the doctor to conduct post-mortem. (f) Dr.M.Rajendran P.W.7 conducted post-mortem on the body of the deceased at 3.30 p.m. on 2.3.1996 and found the following injuries:- "(1) A punctured wound over right side of chest 5 cms below nipple 1 cm x 1 cm x 5 cms. (2) A punctured wound over front of chest over midline 1 cm x 1 cm x 2 cms. (f) Dr.M.Rajendran P.W.7 conducted post-mortem on the body of the deceased at 3.30 p.m. on 2.3.1996 and found the following injuries:- "(1) A punctured wound over right side of chest 5 cms below nipple 1 cm x 1 cm x 5 cms. (2) A punctured wound over front of chest over midline 1 cm x 1 cm x 2 cms. (3) A punctured wound over left side of chest 4th intercostal space 10 cms from midline. (4) A punctured wound right costal margin 1 cm x 1 cm x 5 cms. (5) A punctured wound over left side of chest left costal margin 1 cm x 1 cm x 3 cms." The post-mortem certificate issued by Doctor P.W.7 is Ex.P-10. Doctor P.W.7 has opined that the deceased would appear to have died of shock and haemorrhage and injury to vital organ heart 6 to 7 hours prior to autopsy. (g) On transfer of P.W.11, further investigation was taken up by P.W.12, Inspect of Polacode Police Station and on completion of investigation P.W.12 filed charge-sheet under Sections 341, 302 and 323 read with 34 I.P.C. In respect of Crime No.149 of 1996 registered on the basis of the statement of A1, P.W.12 referred the same as mistake of fact. Chemical report is Ex.P-13 and Serological report is Ex.P-14." 3. In order to prove the case of prosecution, before the trial Court, the prosecution had examined P.Ws.1 to 12 and marked Exs.P-1 to P-21 and M.Os.1 to 8. 4. When the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating evidence found against the accused, they denied the offence and stated that false case has been foisted against them. 5. The learned Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Dharmapurai, in considering such evidence let in as such and on finding that no case has been made out against A1, A3 and A4 acquitted the said accused in respect of the charges levelled against them. The learned Sessions Judge, further finding that A2 is guilty under Section 304 Part-I I.P.C. and accordingly imposed conviction and sentence as set out above, which is under challenge in this appeal. 6. Heard learned counsel appearing for the appellant/A2 and learned Government Advocate (Criminal Side), appearing for the respondent/State. 7. The learned Sessions Judge, further finding that A2 is guilty under Section 304 Part-I I.P.C. and accordingly imposed conviction and sentence as set out above, which is under challenge in this appeal. 6. Heard learned counsel appearing for the appellant/A2 and learned Government Advocate (Criminal Side), appearing for the respondent/State. 7. Learned counsel for the appellant/A2 argued that no satisfactory evidence is let in on the prosecution side in proving the guilt of the appellant/A2. As regards the evidence let in through P.W.1, wife of the deceased and P.W.2, who is the brother's wife of P.W.1, it is submitted that they being close relatives to the deceased, no reliance can be placed on such evidence. Inasmuch as at the time of occurrence, the deceased tried to attack A1 by bringing iron rod from behind the house, during which time A2 attacked him with M.O.2 "Kuthoosi", by way of self-defence and therefore, the deceased being the aggressor, the finding of the trial Court as A2 guilty under Section 304 Part-I I.P.C. is not proper and then argued that the injuries caused to A1 as per wound certificate Ex.P-15 has not been properly explained. In support of the argument advanced that due to the fact that the deceased would attack A1 by bringing iron rod from behind the house and by way of self-defence A2, who is the son of A1, attacked the deceased with M.O.2 Kuthoosi, the learned counsel relied on the following decisions of the Hon'ble Supreme Court:- (1) Subramani – vs. - State of Tamil Nadu reported in 2002(7) SCC 210 , (2) Laxman Singh – vs. - Poonam Singh reported in 2004(10) SCC 94 and (3) Vairapu Sambayya Naidu – vs. - State of A.P. reported in 2004(10) SCC 152 . 8. Learned Government Advocate (Criminal side) submitted that the trial Court considering the evidence let in on the prosecution side properly, rightly found that A2 is guilty in respect of the offence under Section 304 Part-I I.P.C. As regards the injuries said to have been caused to A1 at the time of occurrence, the same has been explained and the wound certificate relating to A1 also has been marked as Ex.P-15 and the Doctor P.W.6 has opined that the said injuries are simple in nature and the complaint Ex.P-19 registered, after investigation has been referred as mistake of fact under Ex.P-21. As regards the self-defence put-forth for the appellant/A2, learned Government Advocate submitted that the right of private defence as claimed by A2 is not extended, in that at the time of occurrence, the deceased after getting the stab in the chest by A2 and while trying to bring the iron rod from behind the house, swooned and fell down and at that time the iron rod touched A1 and caused the injuries to A1 and as such, there was no apprehension to A2 for causing the death or any other harm and therefore, the apprehension as claimed by A2 being not reasonable, the attack made by A2 with "Kuthoosi" cannot be said to be by way of self-defence. Further, the weapon "Kuthoosi" (M.O.2) used by A1 is of the length of 18 c.m. and the blade portion of which is 8 c.m. and the handle is 5 c.m. breadth and 3 c.m. length. 9. As per the case of prosecution, the occurrence took place on 2.3.1996 at 8.30 a.m. at Kammalar Street, Palacode in front of the house of the deceased Venkatachalam due to pathway dispute leading to the house from Kammalar Street and through the house of A1 situated on the South of the deceased and which pathway is exclusively claimed by the accused. A1 is the father of A2. A3 is the wife of A2 and A4 is the sister of A2 and daughter of A1. After trial, A1, A3 and A4 have been acquitted. The occurrence was witnessed by P.W.1 and her brother's wife P.W.2. The other witness P.W.3 who has been examined as ocular witness turned hostile. After the occurrence the injured deceased was taken to Palacode Government Hospital by P.W.4 Ankuraj and two others where the injured deceased was given treatment by Doctor P.W.6 and also issued accident register extract Ex.P-6 and after half an hour the injured deceased died in the hospital. P.W.1 went to the police station and gave the complaint Ex.P-1, in which, the occurrence is clearly stated that at the time of occurrence A2 stabbed the deceased with "Kuthoosi"(M.O.2) on the chest four or five times and A3 and A4 beat the deceased with their hands and when P.W.1 intervened two blows fell on her and her bangles are broken and she has got injuries. When the deceased went behind the house and brought the iron rod and while bringing the iron rod, the deceased swooned and fell down. In her evidence P.W.1 has stated that when the deceased brought the iron rod, he swooned and fell down, at that time the iron rod touched A1 and all the accused had run away taking M.O.2 Kuthoosi. Therefore, only after A2 attacked on the chest of the deceased by four or five times with M.O.2 Kuthoosi and A3 and A4 beat the deceased and when P.W.1 intervened two blows fell on her, then only the deceased tried to bring the iron rod and while bringing the iron rod he swooned and fell down and incidentally the iron rod touched A1 causing injuries to A1. Therefore, the claim made by A2 that by way of self-defence A2 attacked the deceased with M.O.2 Kuthoosi four or five times on the chest of the deceased has no force within the meaning of Section 100 I.P.C., in that there is no apprehension for voluntarily causing the death or any other harm by the deceased and as per the evidence, the deceased only brought the iron rod from behind the house and while returning with iron rod he swooned and fell down and incidentally the iron rod touched A1, father of A2 and resulting injuries to A1 and further that the said incident occurred after the deceased was attacked by A2 with M.O.2 Kuthoosi four or five times on the chest. 10. Immediately after occurrence, the deceased was taken to the Palacode Government Hospital where the deceased was examined by Doctor P.W.6 and the Doctor was also informed by the persons, who took the deceased to the hospital that the deceased was attacked by four known persons at the time of occurrence. The evidence of P.W.1 is supported by P.W.2, who is the brother’s wife of P.W.1. Merely because P.Ws.1 and 2 are relatives to the deceased, P.W.1 being the wife and P.W.2 being the brother's wife of P.W.1, it cannot be said that the evidence adduced by P.Ws.1 and 2 are self interested. The evidence of P.Ws.1 and 2 tallies with F.I.R. and medical evidence. 11. Merely because P.Ws.1 and 2 are relatives to the deceased, P.W.1 being the wife and P.W.2 being the brother's wife of P.W.1, it cannot be said that the evidence adduced by P.Ws.1 and 2 are self interested. The evidence of P.Ws.1 and 2 tallies with F.I.R. and medical evidence. 11. The weapon, Kuthoosi(M.O.2) with which A2 attacked the deceased at the time of occurrence has also been recovered under mahazar Ex.P-5 by P.W.11 on the basis of the confession made by A2, the admissible portion is Ex.P-4, when he was arrested by P.W.11. As per serological report Ex.P-13, blood was detected in M.O.2. 12. As regards the injuries said to have been caused to A1 at the time of occurrence by the deceased, it is clearly stated that after getting the stab from A2 and when the deceased tried to bring the iron rod from behind the house he got swooned and fell down and incidentally the iron rod brought by the deceased touched A1 and further the two injuries caused to A1 are simple in nature and the complaint registered under Ex.P-19 on the basis of the statement given by A1, after investigation has been referred as mistake of fact under Ex.P-21 by P.W.11. 13. The learned Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Dharmapuri considering the facts that A2 attacked the deceased at the time of occurrence with M.O.2 Kuthoosi four or five times on the chest fully aware of the fact that such attack would result in the death of the deceased and with intention to cause death of the deceased and accordingly, rightly found the appellant/A2 guilty under Section 304 Part-I I.P.C. and such finding does not call for any interference. 14. In the result, the appeal fails and is dismissed. The judgment of conviction and sentence made by the Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Dharmapuri, in S.C.No.30 of 1998 are confirmed. The bail bond executed by the appellant/A2 is cancelled. The Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Dharmapuri is directed to secure the custody of the appellant/A2 to undergo the remaining period of sentence.