Judgment : 1. Challenging the judgment of learned Additional District Sessions Judge, Fast Track Court I, Salem, passed in S.C.No.117 of 2009 on 18.09.2009 acquitting the second respondent/accused, the petitioner, father of the deceased, has filed the present revision. 2. The second respondent/accused stood trial for offence under Section 302 IPC. The second respondent/accused and the deceased were relatives. In brief, the prosecution case was that on 27.05.2008, at about 05.00 p.m., owing to previous enmity and dispute over property, the accused assaulted the deceased using a deadly weapon and caused his death while the deceased was attending a temple festival. On the complaint of the petitioner/father of the deceased, a case was registered in Crime No.151 of 2008 on the file of the first respondent and upon completion of investigation, a charge sheet was filed informing commission of offence u/s.302 IPC. The case was tried in S.C.No.117 of 2009 on the file of learned Additional District Sessions Judge, Fast Track Court I, Salem. 3. Before the trial Court, the prosecution examined 13 witnesses, marked 15 exhibits and 12 material objects. One witness was examined on behalf of the defence and 3 exhibits were marked. On appreciation of materials before it, the trial Court concluded that the prosecution has failed to prove its case beyond all reasonable doubt and acquitted the accused. Against such finding, the present revision has been filed. 4. Heard Mr. S. Doraisamy, learned counsel for petitioner, Mr. M. Mohammed Riyaz, learned Government Advocate (Crl. side) and Mr. N. Manokaran, learned counsel for second respondent. 5. In rendering a finding of acquittal, the trial Court found as follows: a. there was enmity between the family of the deceased and the accused. 4. Heard Mr. S. Doraisamy, learned counsel for petitioner, Mr. M. Mohammed Riyaz, learned Government Advocate (Crl. side) and Mr. N. Manokaran, learned counsel for second respondent. 5. In rendering a finding of acquittal, the trial Court found as follows: a. there was enmity between the family of the deceased and the accused. The same was owing to harassment by the deceased family; b. the prosecution has failed to prove the motive; c. PWs.3 and 4 had admitted to having been examined at the police outpost at the Erode Government Hospital and therefore, Ex.P1, registered at the instance of PW-1 was not the original First Information Report; d. the non-examination of outpost police renders the prosecution case doubtful; e. PW-8, Doctor, had admitted that the name of the person, who brought the body of the deceased to the hospital usually would be recorded (the same not having been done in the instant case); f. the occurrence had taken place at 05.30 p.m. on 27.05.2008 and the complaint had been preferred only on 28.05.2008 at 2.15 p.m. There was delay of 201/4 hours in preferring the complaint; g. PWs.1 to 5 were immediate relatives of the deceased. As the occurrence took place in a temple festival, several persons would have witnessed the same. However, no independent witness had been examined in the case; h. though all the eye witnesses had deposed to the deceased having been attacked from behind, the same was unlikely since the deceased had suffered injuries to the left and right side of the neck, fingers of the hand and to the occipital bone. Injuries properly have not been explained by the prosecution; i. the evidence of PWs.1 and 3 was contrary since PW-1 deposed of having gone to the place of occurrence after having returned from the hospital while PW-3 deposed to having returned to their village; j. arrest and recovery of M.Os.5 and 6, a comb and a blood stained billhook, had not been proved through independent witness; k. the investigation was faulted as improper since intimation from the Government hospital had not been produced; and l. the act of the accused was not premeditated and it was clear that the accused had assaulted the deceased only to safeguard himself. It was the deceased, who attempted to assault the deceased with a deadly weapon and who also abused the mother of the accused, due to which the accused took hold of the weapon held by the deceased and assaulted him. 6. The brother of the accused has been examined as DW-1. According to him, portions of an ancestral property fell to both of them. It is his evidence that the deceased continuously was making demands of the accused's share in the ancestral property and that the accused refused informing that he would need the same after his marriage. The deceased, using vulgar language, abused the mother of the accused. As he had abused his mother, the accused told the deceased to do what he wanted. The deceased picked up an aruval and attacked the accused. The accused plucked the aruval out of the deceased's hand and thereafter, cut him. 7. The postmortem report in the case informs as many as twelve injuries as follows: “Post-mortem Certificate Regarding the body of a male aged about 30 years, named Venkateswaran. Requisition received at 12.10 p.m. on 28.05.2008 from the Inspector of Police, Sankari, with his letter No.151/2008 dated 28.05.2008. Body in charge of Police Constable No.HC.479 named Arumugam Identification and caste marks- 1. ABM left hypochondrium, 2. ABM Dorsum of left hand The body was first seen by the undersigned at 12.15 p.m. on 28.05.2008. Its condition then was RM present in all four limbs. Post-mortem commenced at 12.15 p.m. on 28.05.2008. Appearances found at the post-mortem: External Injuries: 1. A cut injury of 7cm x 5cm x 3cm from the corner of left eye to upper part of left ear. Left side of the neck 7 x 5 x 3 c.m. 2. Carotial autular pain of the neck. 3. A cut injury from the back of right ear to back of the neck 5 x 3 x 2 cm. 4. A cut injury 7 x 5 x 3 cm the right side over occipital region. 5. A cut injury below the right side of lower jaw to centre of the neck 7x5x3 cm. Fracture of larynx including thyroid cricoid cartilage. 6. A cut injury 5 x 3 x 2 cm over left temporal region. Left temporal artery. 7. A cut injury over right hand middle finger 3 x 2 x 2 cm. 8. 5. A cut injury below the right side of lower jaw to centre of the neck 7x5x3 cm. Fracture of larynx including thyroid cricoid cartilage. 6. A cut injury 5 x 3 x 2 cm over left temporal region. Left temporal artery. 7. A cut injury over right hand middle finger 3 x 2 x 2 cm. 8. A cut injury over right arm 5 x 3 x 2 cm Right ulnar artery cut. 9. On eisseption of the skull there is fracture of left temporal bone. 10. Subdural haematoma present over occipitory and temporal lopes of brain. 11. There is fracture in the base of the skull. 12. On desssion of the neck hyoid bone is found to be fractured. Heart 300 gms. Chambers empty. Lungs right 500 gms. Left 450 gms. Pale stomach 200 gms are partially digested. Rice particles kidney each 120 gms pale. Bladder empty. Brain 1400 gms. OPINION: The deceased would have died of shock and hemorrhage and injury to brain and death would have occurred 12 to 18 hours prior to autopsy. Postmortem certificate issued by me is Ex.P6.” 8. The trial Court has failed to see that the occurrence proper involving the accused and the deceased stood admitted. In such circumstances, the other factors viz., delay in First Information Report, non-examination of independent witnesses, absence of motive and recovery not being properly proved, would recede to the background. 9. Even if the defence version is to be accepted, the trial Court necessarily ought to have considered: 1. (a) whether the right to private defence was available at all to the accused in circumstance where it is the defence case that the weapon/aruval held by the deceased had been plucked out of his hand by the accused; (b) even if so, whether the same extended up to the extent of causing death; 1. even if the death had been caused in a sudden fight and in a heat of passion upon a sudden quarrel, whether or not the accused had taken undue advantage or acted in a cruel or unusual manner. 10. This Court makes it absolutely clear that the above observations are not to be read as in any manner suggesting the truth of the defence case. The truth or otherwise of the prosecution case as also that of the defence would be a matter to be considered afresh by the trial Court. 10. This Court makes it absolutely clear that the above observations are not to be read as in any manner suggesting the truth of the defence case. The truth or otherwise of the prosecution case as also that of the defence would be a matter to be considered afresh by the trial Court. 11. Learned counsel for second respondent/accused, placing reliance on judgments of the Apex Court, has sought to impress upon this Court the limited scope of exercise of powers in revision. This Court is of the view that the judgment of the trial Court, is neither correct, legal or proper. 12. This Criminal Revision is allowed. The judgment of learned Additional District Sessions Judge, Fast Track Court I, Salem, passed in S.C.No.117 of 2009 on 18.09.2009, is set aside. The case in S.C.No.117 of 2009 shall now stand remitted back to the trial Court. No further evidence in the case would be necessary. The trial Court shall cause notice both to the prosecution as also the accused, afford them an opportunity of advancing arguments before it and render judgment afresh taking into consideration the rival submissions as also the entire evidence before it. The trial Court shall dispose of the case as expeditiously as possible, preferably, within a period of two months from the date of receipt of this order.