JUDGMENT : Hariprasad, J. First accused, who was found guilty of the offences punishable under Sections 324 and 302 of the Indian Penal Code, 1860 (in short, "IPC") and sentenced thereunder, has come up in appeal. 2. Gist of the prosecution allegation, as borne out from the records, is thus: On 16.05.2004 at about 10.20 p.m., the appellant along with other accused persons formed into an unlawful assembly, armed with deadly weapons like knife, pipes and jack lever, committed rioting and in prosecution of their common object voluntarily caused hurt to PW2 Murukan and inflicted fatal injuries to deceased Prasannan. Specific case of the prosecution is that the appellant stabbed on the buttock of PW2 and on several parts of deceased Prasannan's body, with MO 1 knife. Prasannan succumbed to injuries within half an hour. Trial court acquitted all the six accused tried along with the appellant, finding that the prosecution failed to establish guilt against them. 3. Prosecution examined 16 witnesses and marked 29 exhibits at the trial. On the defence side, one witness was examined and 7 exhibits were marked. Exts.C1 to C3 series are the court's exhibits. MOs 1 to 7 are the material objects. 4. We heard Sri.Bechu Kurian Thomas, learned Senior Counsel appearing for the appellant and Sri.S.U.Nazar, learned Special Prosecutor for the State. 5. Sri.Bechu Kurian Thomas vehemently contended that the court below failed to appreciate obvious failure of the prosecution in proving the case beyond reasonable doubt. It is further contended that even if the entire prosecution case is accepted, it should be seen that no offence under Section 302 IPC was made out. It is mainly contended that the appellant is entitled to get an acquittal as the prosecution has not established the allegations beyond reasonable doubt. Apart from the total disconnect with the occurrence, the appellant contended that if at all he is found to be involved, he is entitled to exercise a right of private defence. If at all he is guilty of any offence, it can only be one under Part II of Section 304 IPC. Per contra, learned Prosecutor contended that the trial court correctly relied on the evidence adduced and entered a finding of guilt on the appellant for murder. 6. Before dealing with the legal issues involved in the case, we shall just make a mention of the relevant oral evidence adduced by both sides. Per contra, learned Prosecutor contended that the trial court correctly relied on the evidence adduced and entered a finding of guilt on the appellant for murder. 6. Before dealing with the legal issues involved in the case, we shall just make a mention of the relevant oral evidence adduced by both sides. Prosecution relied on the testimonies of eye witnesses, viz., PWs 2 to 5. Incidentally, we may mention that PW1, who is brother of deceased Prasannan, has given Ext.P1 first information statement (FIS) on 16.05.2004 at about 11.15 hours in the night. According to the prosecution case, the incident was at about 10.20 during the same night. There cannot be an argument in this case that the information furnished was a delayed one. Admittedly, PW1 was not a witness to the incident. Deceased Prasannan was running a tea shop. Deceased along with PWs 2 to 4 went to a nearby bus stop for seeing off PW3 Sreekumar and PW4 Abilash. After a short while, PW1 closed down the tea shop and started proceeding to his house on a bicycle. He saw PW4 Abilash rushing towards him in a state of panic. PW4 informed him that Prasannan was being beaten up by some persons. He further told PW1 that employees of a bus, by name Kuttappan, stabbed Prasannan and he was lying on the road. PW1 rushed to the place. By the time he reached the spot, Prasannan was removed to hospital by someone. Immediately he proceeded to the hospital and found the dead body of his brother. Although PW1 was not a witness to the incident, his testimony reveals the events transpired shortly after the occurrence. 7. PW2 Murukan was a friend of deceased Prasannan. He testified that the incident in which Prasannan lost his life was at about 10.15 p.m. on 16.05.2004. The place of occurrence was a road junction called High School Junction. Some time before the incident, PW2 along with PWs 3 and 4 had gone to the tea shop of Prasannan. Deceased along with the said witnesses came to the bus stop at High School Junction for seeing off PWs 3 and 4. It is the case that even though 4 or 5 buses passed through that route, none of them stopped at the bus stop. Thereafter, a bus bearing name 'Kuttappan' came with a destination board 'Chavara'. Deceased along with the said witnesses came to the bus stop at High School Junction for seeing off PWs 3 and 4. It is the case that even though 4 or 5 buses passed through that route, none of them stopped at the bus stop. Thereafter, a bus bearing name 'Kuttappan' came with a destination board 'Chavara'. The bus slowed down near the bus stop and at that time PW4 Abilash jumped into the bus. After proceeding a short distance, the bus was stopped. Then PW2 along with PW3 and deceased Prasannan went to its side. They wanted to go to Chavara. At that time, cleaner in the bus informed them that the bus would not go upto Chavara and it would go only upto Ramankulangara. Then deceased Prasannan questioned why they were limiting the trip upto Ramankulangara even after exhibiting a destination board as Chavara. Thereafter a scuffle ensued between the cleaner and deceased. PWs 2 and 3 tried to separate the combatants. Meanwhile, somebody threw a stone, which shattered the rear glass of the bus. At that time, someone exhorted from inside the bus that persons who damaged the bus should be beaten up. About five persons jumped out of the bus and they were armed with iron rod and other weapons. A bearded person, who wore a yellow shirt, had secreted a knife like thing in his hand. When they came out with weapons, the prosecution witnesses and Prasannan took to their heels. Deceased Prasannan was proceeding in front of PW2. At that time, the person clad in yellow shirt stabbed on the buttock of PW2. He identified the assailant by turning back. Thereafter they attacked Prasannan. PW2 ran towards a petrol bunk on the southern side of the junction as he was terribly afraid of receiving further physical harm. After sometime, he came to the place of occurrence and he could find no one there. He understood that somebody had taken Prasannan to District Hospital, Kollam from where he died. It is the evidence of PW2 that there was sufficient light to identify the assailants. We are only concerned with the identity of the appellant as other accused have been acquitted by the trial court and their acquittal has become final. So, we are not referring to that part of the testimony of the prosecution witnesses regarding the identity and involvement of other accused. We are only concerned with the identity of the appellant as other accused have been acquitted by the trial court and their acquittal has become final. So, we are not referring to that part of the testimony of the prosecution witnesses regarding the identity and involvement of other accused. It is the definite case of PW2 that the appellant was identified as he had occasion to turn around and see the appellant's face when he stabbed on his buttock. His stark features noted by PW2 were that he was wearing a yellow shirt and was having a beard. PW2 clearly deposed that the incident occurred close to a super market and an autorickshaw stand. He identified the appellant from the dock as the person who stabbed him by using MO1. It has come out in evidence through the testimony of this witness and other witnesses that there was a test identification parade conducted in this case. During the parade, this witness and other witnesses identified the appellant. There is a serious challenge against conduct of the parade and also the manner in which the identity of appellant was elicited. We shall deal with those aspects in the succeeding paragraphs. 8. This witness was cross examined extensively. It has come out in evidence that before the incident, PW2 had consumed a small quantity of alcohol. According to him, he did not drink in the company of Prasannan on that day and he consumed liquor with another person. It is admitted by PW2 that none of the accused persons including the appellant was known to him earlier. Suggestion that he identified the appellant during the parade on receiving a clue from the investigating officer is strongly denied by this witness. Lot of questions were asked relating to colour of the shirt worn by the appellant. The consistent case of the prosecution witnesses is that the appellant was wearing a yellow shirt at the time of incident. When the shirt was produced at the time of trial, it was revealed that it had black lines in yellow background. At the time of cross examination, PW2 identified MO1 knife as the one used to assault him and deceased Prasannan. PW2 repeated in cross examination that PW4 Abilash jumped into the bus even before it came to a halt. When the bus was stopped, other persons converged on the bus for boarding. At the time of cross examination, PW2 identified MO1 knife as the one used to assault him and deceased Prasannan. PW2 repeated in cross examination that PW4 Abilash jumped into the bus even before it came to a halt. When the bus was stopped, other persons converged on the bus for boarding. PW2 definitely stated that deceased Prasannan questioned the crew of the bus as to why they were limiting the trip to Ramankulangara when they had displayed a board as Chavara. That resulted in the scuffle. The defence case that PW2 could not identify the actual assailants and he falsely implicated the appellant is refuted by him. After the incident, he did not go to the hospital and he knew only on the next day that Prasannan died in the incident. PW2 is an injured witness who had occasion to see the aggressor from a close proximity. Still, we shall consider his evidence in the light of other evidence. 9. PW3 Sreekumar along with PWs 2 and 4 was present at the time of incident in the company of deceased Prasannan. It has come out in evidence of these witnesses that they were members of a cricket team by name 'Starwars'. Deceased Prasannan was also an active member in the cricket club. As deposed by PW2, this witness also deposed that while they were waiting along with deceased at the High School Junction bus stop, a bus by name Kuttappan came and deceased Prasannan showed signal to stop it. PW4 jumped into the bus before it stopped. Then the cleaner called out that the bus would go only upto Ramankulangara and not upto Chavara. This was questioned by deceased Prasannan and a scuffle ensued. While PW3 was trying to separate the fighting persons, two persons came out of the bus. One person was holding a rod like weapon. On seeing this, PW3 became petrified. In the scuffle, one person fell down and at that time, he heard the sound of breaking glass on the back of the bus. Somebody exhorted to deal with the attackers and at that time, three persons jumped out from backside of the bus. One person had secreted something in his hand. They went to the side of deceased Prasannan and PW2. Both of them ran towards the eastern direction. At that time, a person clad in yellow shirt stabbed on the buttock of PW2. One person had secreted something in his hand. They went to the side of deceased Prasannan and PW2. Both of them ran towards the eastern direction. At that time, a person clad in yellow shirt stabbed on the buttock of PW2. Then they started attacking deceased Prasannan. The same person who clad in yellow shirt stabbed Prasannan. The victim fell down on receiving the injury. Even thereafter, the aggressor repeatedly stabbed him. Deceased Prasannan was wearing a lunki at that time. On receiving stab injuries, Prasannan rolled over resulting in peeling off his loin cloth and he was lay naked on the road. Someone in the group of assailants attacked PW4 Abilash with bare hand questioning whether he also belonged to the gang of the deceased. PW4 informed that he was a passenger in the bus and came to the side of PW3. The assailants went in the same bus. PW3 sent PW4 to shop of the deceased for passing on information and he stopped a motor bike ridden by Biju, who was known to him earlier. Even though the occurrence was close to an autorickshaw stand, two autorickshaws present at the time of occurrence had been taken away immediately after the incident. No other vehicle was stopped despite a frantic effort was made in order to hospitalise Prasannan. After a short while, another autorickshaw came and after disembarking the passengers, Prasannan was taken to District Hospital, Kollam in that autorickshaw by laying him on the platform. He was taken to casualty from where doctor declared him dead. After some time, PWs 1 and 4 came to the hospital. This witness identified the appellant as the person who stabbed PW2 and Prasannan. The reason for identifying the appellant was that he was wearing a yellow shirt and had grown beard. 10. During cross examination, this witness deposed that he showed stop signal in front of Universal Medical Store and the bus stopped slightly away from that place. According to him, the scene of occurrence and the bus stop are close to one another. This witness also deposed that there was plenty of light to see the incident clearly. When questions were put to this witness to establish that he did not witness the actual occurrence, his answer was that he saw the incident from opposite side of the road and everything had happened right in front of him. This witness also deposed that there was plenty of light to see the incident clearly. When questions were put to this witness to establish that he did not witness the actual occurrence, his answer was that he saw the incident from opposite side of the road and everything had happened right in front of him. In cross examination, this witness deposed that he saw the weapon when the appellant used it against PW2 Murukan. The defence counsel pointed out that identification of MO1 by PW3 was not informed to Police and it is an omission. But, PW3 asserted that he had informed Police about noticing the weapon in appellant's hand. It has come out in evidence that PW3 had informed the investigating officer that a person in yellow shirt stabbed Prasannan and omission to mention that he stabbed with a knife may not be of any significance. As stated by other witnesses, PW3 also deposed that there are dark blue lines in the yellow shirt (MO3). Despite minor incongruities between testimonies of PWs 2 and 3, we do not find any reason to brand these two witnesses as unbelievable persons. 11. PW4 Abilash is also an eye witness to the incident. As stated by PWs 2 and 3, this witness also proceeded to the bus stop on the fateful night along with deceased Prasannan. He deposed about the scuffle occurred between the prosecution witnesses and the deceased on one hand and crew of the bus on the other. This witness also deposed that in the push and pull a person fell down and at that time a window pane, made of glass, on rear of the bus was shattered in stone pelting. Immediately some persons jumped out of the bus with weapons in their possession. A person dressed in yellow shirt had secreted a weapon in his hand. PW4 understood that they were going to attack deceased Prasannan and PW2. He alighted from the bus. He found the assailants chasing deceased Prasannan and PW2. He saw the person clad in yellow shirt stabbing on PW2's buttock. When he was about to cross the road, one of the assailants beat him and questioned whether he was also in the company of the deceased and other prosecution witnesses. PW4 stated that he was a passenger in the bus and had no connection with deceased Prasannan. According to PW4, he was terribly frightened. When he was about to cross the road, one of the assailants beat him and questioned whether he was also in the company of the deceased and other prosecution witnesses. PW4 stated that he was a passenger in the bus and had no connection with deceased Prasannan. According to PW4, he was terribly frightened. Thereafter the person who beat him also joined to chase Prasannan. A group of assailants beat Prasannan and the person put on yellow shirt stabbed on the chest of Prasannan. He repeatedly stabbed Prasannan. After the incident, they returned to the bus and driver drove the bus away. PW4 went to inform the matter to PW1 and on the way, he found PW1 coming on a bicycle. He had reached near Boys' High School. PW4 informed the matters to PW1 and when they understood that Prasannan had been removed to District Hospital, Kollam, he along with PW1 went to the hospital on the bicycle. From there, he understood that Prasannan was dead. 12. Learned defence counsel cross examined this witness extensively. The suggestion that he was afraid of deceased Prasannan and group members has been denied by PW4. It has come out in evidence that he is a usual visitor in Prasannan's tea shop. The suggestion made at the time of cross examination to all the prosecution witnesses is that deceased Prasannan was having criminal antecedent and he had the support of CPI(M) party. This suggestion was strongly denied by the prosecution witnesses. To specific questions that he did not identify any of the weapons allegedly used and he did not inform description of the weapons to Police, PW4 deposed that he had seen the weapons and described them to Police and he has no idea why Police omitted to mention them in his statement. He stuck to his version during cross examination that the person clad in yellow shirt was having beard and he had secreted a weapon in his hand. This witness is also a participant in the test identification parade. He admitted in cross examination that he did not get any summons to attend the parade for identification of the accused. It has come out in evidence that PW2 Murukan was also present with him for the test identification parade. This witness is also a participant in the test identification parade. He admitted in cross examination that he did not get any summons to attend the parade for identification of the accused. It has come out in evidence that PW2 Murukan was also present with him for the test identification parade. The suggestion by the defence that photos of the accused persons were shown to these witnesses before the parade has been denied by all the witnesses. Even though some minor contradictions could be elicited from this witness, the testimony of this witness lends support to the testimonies of PWs 2 and 3. 13. PW5 Shibu is yet another eye witness, who was an autorickshaw driver. He used to park his vehicle in the High School Junction. He deposed that he had seen deceased Prasannan many a time before the incident. He did not remember the date of incident, but stated that it was about 10.15-10.20 hours in the night. The incident was in front of a Margin Free Super Market at the High School Junction. He was sitting in his autorickshaw parked at the junction. At that time deceased Prasannan and four persons came on foot to the junction. Despite showing signal to many buses, none of them stopped. Thereafter bus by name Kuttappan came and one person jumped into the bus. After sometime, he saw one man running away by covering his backside with hands. Immediately thereafter 4-5 persons attacked deceased Prasannan. One among them stabbed Prasannan. On seeing the brutal attack, PW5 went away. He had acquaintance with the prosecution witnesses as well. He identified the appellant from dock. He also identified MO6 as the shirt worn by the appellant at the time of incident. 14. In cross examination, he repeated that after the incident, he left the place. When a specific question was put to this witness that he did not see the deceased receiving any stab injury by using a knife, PW5 deposed that he had informed Police all the facts, but he was unable to say why Police omitted it. MO6 shirt was predominantly a yellow shirt with lines. Testimony of this witness also supports the testimonies of other occurrence witnesses. 15. PW6 Prasanth is the attestor to Ext.P2 mahazar whereby MO1 knife was recovered. MO6 shirt was predominantly a yellow shirt with lines. Testimony of this witness also supports the testimonies of other occurrence witnesses. 15. PW6 Prasanth is the attestor to Ext.P2 mahazar whereby MO1 knife was recovered. He deposed that along with Police party, a person with covered face came to Thoppil Kadavu and searched out a knife from a bushy area. He identified MO1 as the knife that the person took out from the midst of wild growths. PW6 could not testify about the identity of the person seen at the time of recovery of MO1 as his face was muffled. Defence suggestion in cross examination that on the date of recovery of MO1 knife and its previous night, there was heavy rain is not supported by this witness. Despite cross examination, the version that he had seen recovery of MO1 by a person, whose identity was not revealed, was satisfactorily proved. 16. PW7 is a witness to Ext.P3 scene mahazar. He signed it on the next day of incident at about 2 o' clock in the noon. During cross examination, it was attempted to be brought out that he did not sign on Ext.P3 scene mahazar as there are stark differences in the signatures. But this witness affirmed that what is seen in Ext.P3 against his name is his signature. Despite raising much contentions by the defence regarding inaccuracy of the place of occurrence, no cross examination was done on this witness touching on that issue. 17. PW8 Dr. Margie Xavier issued Ext.P4 discharge certificate to PW2 Murukan showing that he had sustained an injury on perineum and had a contusion on back. This medical record supports the testimonies of PW2 and other prosecution witnesses. PW8 proved Ext.P5 as well, since Dr. Rajesh D.Rajan, who had issued Ext.P5 wound certificate, was not available for examination. PW8 asserted that she is familiar with his signature. This document also fortifies the nature of injury sustained by PW2 in the incident. 18. PW9 Dr.P.Rema conducted autopsy on the body of Prasannan. On 17.05.2004 while working as the Associate Professor of Forensic Medicine and Deputy Police Surgeon, Medical College Hospital, Thiruvananthapuram, PW9 performed the postmortem examination and issued Ext.P6 certificate. The antemortem injuries noted on Ext.P6 are thus: "1. 18. PW9 Dr.P.Rema conducted autopsy on the body of Prasannan. On 17.05.2004 while working as the Associate Professor of Forensic Medicine and Deputy Police Surgeon, Medical College Hospital, Thiruvananthapuram, PW9 performed the postmortem examination and issued Ext.P6 certificate. The antemortem injuries noted on Ext.P6 are thus: "1. Incised penetrating wound 3x1cm, horizontal, on the right side of front of chest, the inner sharply cut end being 15 cm below the top of breast bone in the middle. Its outer end was blunt. The chest cavity was seen penetrated by cutting through sixth right costal cartilage, pierced the pericardium, cleanly cut the right border and front aspect of right ventricle of heart, close to atrioventricular junction with transection of posterior interventricular branch of coronary artery (3.5x0.8x1.5cm), punctured the front wall of root of right atrium (1x0.5x0.3 cm) and pierced the whole thickness of pericardium on he back aspect. Haematoma 12x11x1 cm was present over the surface of heart. The wound was directed backwards and upwards for a total minimum depth of 4.7 cm. Pericardial cavity contained 350 ml of fluid blood and 80 gms of blood clot. Right chest cavity contained 250 gm of blood clot and 250 cc of fluid blood. 2. Incised wound 4x0.5x0.5 cm oblique on the left side of face, its upper outer end on the front of left ear lobe 2.4 cm below its top. 3. Incised wound 5x2x2 cm oblique on the outer aspect of left thigh its lower front end 24 cm above knee. 4. Incised wound 3x0.5x1.5 cm, oblique on the upper inner quadrant of left buttock, its upper inner end in the middle at the level of upper end of natal cleft. 5. Incised wound 4.5x2x2.5 cm on the upper outer quadrant of left buttock its upper inner end 9.5 cm outer to natal cleft. 6. Incised wound ' ' shaped 10x0.2-o.5x0.3 cm on the left side of chest with its convexity directed upwards 2 cm below armpit. 7. Multiple small abrasions over an area 6x5 cm on the right side of forehead 2.5 cm to right of midline and 1 cm above eyebrow. 8. Abrasion 4x2 cm on the forehead in the middle 2 cm above root of nose. 9. Abrasion 3x1.5 cm on the forehead 1.5 cm above injury No.(8). 10. Abrasion 2x1 cm on the root of nose. 11. 8. Abrasion 4x2 cm on the forehead in the middle 2 cm above root of nose. 9. Abrasion 3x1.5 cm on the forehead 1.5 cm above injury No.(8). 10. Abrasion 2x1 cm on the root of nose. 11. Multiple small abrasions over an area 2x1 cm on the nose 1 cm below injury No.(10). 12. Abrasion 1x1 cm on left ala of nose. 13. Abrasion 0.5x0.5 cm on the right side of face 1.5 cm below outer angle of eye. 14. Multiple small abrasions over an area 9x 6 cm on the outer aspect of right shoulder. 15. Abrasion 2x1 cm on the back of right elbow. 16. Abrasion 1x1 cm on the front of right knee. 17. Abrasion 3x2 cm on the outer aspect of left knee. 18. Multiple linear abrasions over an area 28x9 cm on the outer aspect of left thigh 5 cm below the top of hip bone. 19. Multiple linear abrasions over an area 11x7 cm on the left side of front of chest 9 cm outer to midline and 13 cm below collarbone. 20. Abrasion 7x7 cm on the back of left elbow." It can be seen that there were six incised wounds on the body of deceased apart from multiple abrasions, which could be caused in the rolling over on a hard surface. PW9 opined that the cause of death was due to injury No.1, which is a penetrating injury sustained to chest. PW9 also deposed that all the incised wounds could be caused by a weapon like MO1. 19. During cross examination, PW9 deposed that injury No.1 could be caused by a forceful hit on the chest by using MO1. Testimony of this witness remains credible, despite strict cross examination. 20. PW10 is a witness to Ext.P8 by which MO6 iron pipe was recovered. Insofar as the appellant is concerned, this recovery has no effect as there is no case that he ever used this weapon against PW2 or the deceased. 21. Another important witness is PW11, who conducted the test identification parade in the capacity as Judicial First Class Magistrate. Ext.P9 is the report. PW11 worked at the material time as Judicial First Class Magistrate-I, Kollam. On 28.05.2004, she conducted test identification parade of three suspects and one among them was the appellant. Ext.P9 report, which was proved through this witness, shows the following facts. Ext.P9 is the report. PW11 worked at the material time as Judicial First Class Magistrate-I, Kollam. On 28.05.2004, she conducted test identification parade of three suspects and one among them was the appellant. Ext.P9 report, which was proved through this witness, shows the following facts. PWs 2 to 4 were called for identifying three accused paraded. 12 non-suspects were selected from among under-trial prisoners and all of them were asked to stand in row without any special features to identify any of them. The entire procedure adopted by PW11 in conducting the parade have been detailed in Ext.P9 report. It also shows the precautions taken to avoid the Police tipping off identity of the suspects to the witnesses. It is clearly mentioned in Ext.P9 that all the persons arrayed in the parade were wearing casual dress like shirt, lunki, dhothi, etc. It can be seen from the report that the suspects and non-suspects were mixed up and each witness were asked to identify them after shuffling their position three times in the row. It is clear from the report that on all the three occasions the witnesses identified the appellant. The entire formalities and regularity of conduct of the proceedings were deposed to by PW9. In cross examination by the counsel for the appellant, it is stated by this witness that the suspects and non-suspects were not wearing the same dress and they were not of same height. Despite this, nothing could be brought out from PW11 to show that there was no regularity or legality in conducting the test identification parade. 22. Testimony of PW11 coupled with that of PWs 2 to 4 would show that the said witnesses could clearly identify the appellant as the aggressor. In the absence of any reliable material brought out that the witness were tutored by the investigating officer or that they were given any opportunity to see the appellant before the parade so as to identify him correctly at the time of the test identification parade, the reliable testimony of PW11 should be given due weight. 23. PW12, Sub Inspector of Police recorded Ext.P1 FIS. He proved Ext.P1(a) first information report (FIR). Since it was a murder case, Circle Inspector of Police was the authorized person to investigate. 23. PW12, Sub Inspector of Police recorded Ext.P1 FIS. He proved Ext.P1(a) first information report (FIR). Since it was a murder case, Circle Inspector of Police was the authorized person to investigate. Suggestion made by the counsel for appellant that PW12 recorded a statement as dictated by the Circle Inspector of Police on the next day morning and that is Ext.P1 has been denied by this witness. Further suggestion that the appellant was implicated on account of political pressure is also denied by this witness. 24. PW13 proved Ext.P10. PW13 recorded the statement of PWs 2 to 4 and took custody of 4th accused for identification. Testimony of this witness is not relevant for our purpose. 25. PW14 is the Village Officer, who prepared Ext.P11 site plan. Regarding the correctness of the site plan, lengthy arguments were advanced by the learned Senior Counsel, which we shall deal with in the succeeding paragraphs. 26. PW16 conducted the investigation and PW15 laid the charge. PW16 was the Circle Inspector of Police, West Police Station. He started investigation on 17.05.2004. He examined the scene of occurrence and made arrangements for guarding the scene. Thereafter he prepared Ext.P12 inquest report on body of the deceased. He prepared Ext.P3 scene mahazar. He proved the material objects recovered at the time of preparation of the scene mahazar and inquest report. Ext.P15 is the report submitted by the electrical inspector to show that there was sufficient light at the place of occurrence at the relevant time. Appellant was arrested from Ramankulangara. PW16 deposed that when the appellant was questioned while in custody, he stated that MO1 knife was jettisoned in a bushy area near Thoppil Kadavu and as directed by him PW16 and party had gone to the place and recovered MO1. He proved Ext.P2 mahazar evidencing recovery of MO1. Relevant portion of the disclosure statement is Ext.P2(a). He deposed various steps taken by him during the investigation. It is the testimony of PW16 that father of the appellant produced the shirt and pants worn by the appellant at the time of incident on 24.05.2004 at about 4.00 p.m. Apparels worn by the appellant were recovered as per Ext.P18 mahazar. The bus involved in the incident was produced by the owner and it was taken to custody as per Ext.P19. The bus involved in the incident was produced by the owner and it was taken to custody as per Ext.P19. He deposed that the appellant, previous to the incident, had worked in the bus is the information brought out in investigation. It was further revealed that he was friendly with rest of the employees in the bus. 27. This witness was subjected to a lengthy cross examination by the counsel for appellant. During cross examination, PW16 deposed that in the statement given by CW23 Kamalakshy (owner of the bus) it was mentioned that the appellant was an employee in the bus. She was not examined before court as she died pending trial. It was brought to the notice of PW16 that in FIR, it was mentioned that the deceased sustained injuries by cutting, whereas actually he sustained stab injuries. This incongruity is of no significance and PW16 has satisfactorily explained the inaccuracy in the expression about the causation of injury. 28. As mentioned earlier, much questions have been asked to PW16 regarding the place of occurrence. It was the attempt of the defence to bring out that there is inaccuracy in fixing the place of occurrence. It is not clear as to what would be the benefit derived by the appellant if the exact place of incident was not pointed out by the prosecution. In this case, evidence was adduced by the prosecution witnesses that initial part of the incident had happened at a place where the bus was stopped slightly away from the bus stop and later the aggressors chased PW2 and the deceased and he was stabbed to death slightly away from the place where the first incident of scuffle had occurred. It has also come out in evidence from the scene mahazar and testimonies of material witnesses that there were enough light available for the prosecution witnesses to see the incident. From Ext.P11, it can be seen that the place of occurrence is almost in front of a Margin Free Super Market. An electric post and a coconut tree are also marked in Ext.P11, close to the place of occurrence. On the west of Margin Free Super Market, a closed shop has been noted. High School Junction is prominently shown in Ext.P11 plan. From the recitals in Ext.P3 scene mahazar and Ext.P11 plan, it is evident that the incident had happened in a well lit area. On the west of Margin Free Super Market, a closed shop has been noted. High School Junction is prominently shown in Ext.P11 plan. From the recitals in Ext.P3 scene mahazar and Ext.P11 plan, it is evident that the incident had happened in a well lit area. PW16 was cross examined regarding the place of occurrence and he deposed that the distance between Universal Medical Shop and Margin Free Super Market is about 5 to 10 metres. This was brought out to highlight the fact that in the inquest report, it was mentioned that the place of occurrence was a road margin in front of Universal Medical Shop whereas in the scene mahazar, it is shown as a place in front of Margin Free Super Market. There is no material to hold that these two places are not visible from one point to the other. Both these buildings are situated on the same side of the road and close to one another. PW16 deposed that while preparing the inquest report, the mention of Universal Medical Shop was made only as a land mark. We are of the view that the contentions raised regarding the exact location of the place of occurrence is insignificant in the facts and circumstances of this case as even if it is 5 or 10 metres away from the place initially mentioned in the inquest report, the testimonies of witnesses would show that there was direct visibility for a long distance and in the quantum of light available in the area, the witnesses could see the incident. Further contention raised by the learned Senior Counsel that during the course of investigation, things were manipulated and scene was shifted to falsely implicate the appellant in the case cannot be accepted in the light of the facts proved in this case. 29. Appellant was arrested on 18.05.2004 and MO1 knife was recovered at his instance on 19.05.2004. Even if the defence suggestion that on 18.05.2004 itself the appellant had confessed and recovery was effected only on 19.05.2004 is accepted, we are of the definite view that it will not vitiate credibility of the discovery under Section 27 of the Evidence Act, 1872 if it is otherwise established. In this case, the testimony of the recovery witness, though he failed to identify the appellant, coupled with that of PW16, makes the recovery of MO1, credible and believable. In this case, the testimony of the recovery witness, though he failed to identify the appellant, coupled with that of PW16, makes the recovery of MO1, credible and believable. Despite serious cross examination regarding the place from where the recovery was effected, PW16's testimony exactly tally with the mahazar relating to recovery. The suggestion that in torrential rain, there was a chance of drifting the weapon to the nearby water body is stoutly denied by PW16. It is well settled that one day's delay in effecting recovery under Section 27 of the Evidence Act after getting information is not fatal as there can be many intervening circumstances in effecting recovery. 30. The suggestion that as insisted by PW16, appellant's father produced MO3 yellow coloured shirt and there was no blood stains are denied by PW16. PW16 admitted that nobody mentioned any description of MO1 knife sufficient to identify it. Regarding the omissions by PW2 in revealing identity of the appellant, PW16 deposed that PW2 could identify the appellant on turning back after receiving a stab on buttock. Despite lengthy cross examination, no material could be brought out to discard his testimony as unbelievable. 31. PW15 verified the investigation conducted by PW16 and filed the final report. 32. DW1 Ajayakhosh is maternal uncle of the appellant. In his chief examination, he deposed that on 16.05.2004 at about midnight, 2-3 policemen came home. At that time, the appellant was laid up with fever. They wanted to speak to the appellant and at that time DW1 and household members asked as to what was the matter. When the appellant came out, they took him in a police jeep and told them that he could be set free in the next morning. Next morning, DW1 and appellant's father went to the police station, but they were not allowed to meet him. After 3-4 days, PW16 asked DW1 to bring a yellow shirt and pants. He could not find out a yellow shirt and therefore, he brought a check shirt with yellow shade. That was on 24.05.2004. He identified MO3 as the shirt produced by him. 33. When Prosecutor cross examined this witness, he admitted that the appellant had not gone to any hospital on account of fever. This witness deposed that appellant was suffering only mild fever and stomach problems. DW1 admitted that MO3 shirt belonged to the appellant. That was on 24.05.2004. He identified MO3 as the shirt produced by him. 33. When Prosecutor cross examined this witness, he admitted that the appellant had not gone to any hospital on account of fever. This witness deposed that appellant was suffering only mild fever and stomach problems. DW1 admitted that MO3 shirt belonged to the appellant. Even though DW1 deposed that MO3 was washed before it was taken to the police station on 24.05.2004, the Prosecutor pointed out dirt on the collar of shirt. According to the prosecution, the shirt was worn by the appellant at the time of incident and it was having blood stains. In this context, it is relevant to note that MO1 was forwarded to the Director, Forensic Science Laboratory (FSL), Thiruvananthapuram as per Ext.P26. Ext.P29 is the report obtained from the FSL, Thiruvananthapuram. Item No.1 in Ext.P29 is MO3 shirt. It is revealed from Ext.P29, which is proved through PW16, that MO3 was having dark brown stains. Examination revealed that both MO1 knife and MO3 shirt contained human blood. Therefore, the case that MO3 shirt was produced by DW1 and appellant's father in a clean condition and it had no stains cannot be believed in the light of the unchallenged materials produced and proved by the prosecution. On going through the cross examination on DW1 by the Prosecutor, it can be seen that he testified with a view to save his nephew from punishment and for no reason his testimony could override the credible testimonies of eye witnesses and the investigating officer. 34. Now we shall turn to the legal questions raised by the learned Senior Counsel. We are of the definite view that the prosecution evidence clearly established that the appellant stabbed the deceased incessantly by using MO1 knife and the assertion by PWs 2 to 4 that they had seen the incident and identified the appellant as the aggressor will have to be accepted. Although serious challenges were made against the prosecution witnesses that they would not have identified the appellant as they had no previous acquaintance with him and only catchy features stated by them was that he was having a beard and wearing a yellow shirt, the prosecution witnesses withstood the tough cross examination. Although serious challenges were made against the prosecution witnesses that they would not have identified the appellant as they had no previous acquaintance with him and only catchy features stated by them was that he was having a beard and wearing a yellow shirt, the prosecution witnesses withstood the tough cross examination. Further the proper conduct of test identification parade conducted by PW11 and report of test identification parade (Ext.P9) proved by her clearly show the regularity of the proceedings and the genuineness of identification of the appellant. The contention raised by the learned Senior Counsel based on decision in Yeshwant v. State of Maharashtra ( AIR 1973 SC 337 ) is that if the test identification parade was a farce, it cannot be accepted. In the above case, the Supreme Court considered the facts and circumstances which are totally different from the facts in this case. As stated above, the unchallenged testimony of PW11 coupled with Ext.P9 report would show that the test identification parade was done with sufficient safeguards. The principles laid down by the Supreme Court in the above decision cannot be applied to this case. Even though an attempt was made to show that the witnesses were given opportunity either to see the appellant or his photographs before test identification parade, no reliable evidence could be brought in to establish that contention. Therefore, we are of the view that the trial Judge was correct in holding that the appellant stabbed the deceased to death by using MO1 and the case of appellant that he is innocent of all the allegations cannot be accepted. Having said so, we come to the next contention of the learned Senior Counsel for the appellant that he might have done the act in the exercise of his right of private defence. 35. The right of private defence extending to causing of death is deal with in Section 100 IPC. Having said so, we come to the next contention of the learned Senior Counsel for the appellant that he might have done the act in the exercise of his right of private defence. 35. The right of private defence extending to causing of death is deal with in Section 100 IPC. It reads as follows: "When the right of private defence of the body extends to causing death.-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape; Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Seventhly.- An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act." On a reading of the Section, it will be clear that the right of private defence of body extending to voluntarily causing of death or of any harm to the assailant is subject to the restrictions mentioned in the previous Sections falling within Chapter IV dealing with General Exceptions. If one carefully reads the above Section, it can be seen that only in six contingencies (7th contingency was added by the Criminal Law (Amendment) Act, 2010 with effect from 03.02.2013, which was not available at the time of incident and not relevant in this case) the right of private defence can extend upto causing death. It is also a settled proposition that the defence need not adduce direct evidence to claim a right of private defence. It is also a settled proposition that the defence need not adduce direct evidence to claim a right of private defence. If the prosecution evidence reasonably tend to suggest that the act was committed by the accused in the exercise of his private defence, then also the accused can claim the benefit. As stated above, in this case, there is direct evidence, in the form of testimonies of eye witnesses, that the accused stabbed the deceased to death. In order to claim the right of private defence extending to causing death, firstly it must be established that the appellant apprehended that he was about to be assaulted by the deceased or anyone in his company and he must have apprehended that death will otherwise be the consequence of such assault. Only evidence available in this case is that the appellant along with other persons, whom we are not concerned now, jumped out from the backside of the bus. Even assuming that while he was sitting in the back seat, glass pane on the rear of the bus was shattered in stone pelting and that must have caused apprehension to the appellant of physical harm, we do not find that the appellant is justified in chasing PW2 and deceased and inflicting injury to both by using MO1 knife, that too large number of blows on the deceased. Therefore, firstly to Section 100 IPC is not attracted in the light of evidence adduced by the prosecution. In order to attract secondly to the Section, such an assault as may reasonably cause the apprehension that grievous hurt will be the consequence should have happened. No suggestion was made to the prosecution witnesses that such a possibility was there on account of shattering of the glass fixed on the backside of bus. Thirdly, fourthly, fifthly and sixthly to the Section are not applicable to the allegations made and the facts proved in this case. Therefore, we have no hesitation to hold that the appellant is not entitled to claim the benefit of Section 100 IPC either from the defence evidence adduced by him or from the evidence tendered by the prosecution witnesses. 36. Therefore, we have no hesitation to hold that the appellant is not entitled to claim the benefit of Section 100 IPC either from the defence evidence adduced by him or from the evidence tendered by the prosecution witnesses. 36. Learned Prosecutor relying on State of U.P. v. Laeeq ( (1999) 5 SCC 588 ) contended that by raising merely a vague plea of private defence and showing no justification for causing death, it can be held that the accused exceeded the right of private defence and the case cannot be treated as falling within Exception 4 to Section 300 IPC. Learned Prosecutor further relied on Mahabir Choudhary v. State of Bihar (( 1996 (5) SCC 107 ) to contend that right of private defence cannot be used to kill the wrong doer unless the accused had reasonable cause to fear that otherwise death or grievous hurt might ensue. 37. Per contra learned Senior Counsel relying on Darshan Singh v. State of Punjab and another ( (2010) 2 SCC 333 ) contended that following principles enunciated by the Supreme Court will have to be considered in assessing the right available to the appellant under Section 100 IPC. The principle read as follows: "(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilized countries. All free, democratic and civilised countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened." 38. In the facts and circumstances established in this case, we find no grave situation justifying the exercise of private defence, upto the extend of causing death, in this case. Moreover, the established evidence would show that the appellant chased PW2 and deceased Prasannan and attacked them. He rained not less than six blows with knife causing incised wounds on vital parts of human body. That apart, the postmortem certificate would show that the injury inflicted on the chest of deceased was very deep and it must have been inflicted with great amount of force. Part of the body selected and force with which injury was inflicted would clearly reveal the intention of the appellant. Therefore, the principles in the above decision have no application to this case. 39. Next argument is that the appellant had no previous enmity and the whole incident happened on account of a sudden provocation given by the deceased and his party. It is therefore contended that Exception 4 to Section 300 IPC will come into play. Therefore, the principles in the above decision have no application to this case. 39. Next argument is that the appellant had no previous enmity and the whole incident happened on account of a sudden provocation given by the deceased and his party. It is therefore contended that Exception 4 to Section 300 IPC will come into play. Exception 4 to Section 300 IPC says that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation to this Exception would show that it is immaterial in such cases which party offers the provocation or commits the first assault. If we analyse the evidence in this case, it can be seen that there was a scuffle by the side of the bus when it stopped on the reason that the bus crew refused to go upto the end point, instead they decided to stop midway. The deceased questioned act of the crew members, which resulted in a push and pull. It is the testimony of the prosecution witnesses that during that time someone pelted a stone to shatter the glass pane on the rear of the bus. We have to assume without evidence that one among the prosecution witnesses had pelted stones to the bus and the appellant, who was sitting at the rear, as an ex-employee of the bus, must have felt sudden provocation and jumped out of the bus to ward off the danger posed by the aggressors. But, in this case, it is established that he not only chased PW2 and stabbed him, but also chased the deceased to some distance and repeatedly stabbed him causing injuries, out of which one proved to be fatal. We are of the view that the appellant is not entitled to the benefit of Exception 4 to Section 300 IPC for the reason that from the facts and circumstances established we are unable to say that he did not take undue advantage or act in a cruel or unusual manner. Therefore, we find no reason to bring the facts of this case within the scope of Exception 4 to Section 300 IPC. 40. Therefore, we find no reason to bring the facts of this case within the scope of Exception 4 to Section 300 IPC. 40. After considering the entire facts and circumstances established in this case and the contentions raised, we are of the view that the learned trial Judge was right in holding that the appellant is guilty of murder falling within Section 300 IPC and therefore he is rightly convicted and sentenced under Section 302 IPC. We find no reason to interfere with this finding of the trial court. Further, he was rightly convicted and sentenced under Section 324 IPC for causing stab injury to PW2. In the result, we find that the convictions and sentences imposed on the appellant are proper and the appeal is devoid of any merit. Hence, it is dismissed. All pending interlocutory applications will stand dismissed.