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Judgment
T. Jayarama Chouta, J.—The appellant Vijayan was tried for an offence of murder of his elder brother Bellarmin on 7-2-1988 at about 5.30
P.M., by the Sessions Judge, Tirunelveli Division, Tirunelveli, in S.C. No. 283/1988 and he found the accused guilty for the said offence, by his
judgment dated 26-6-1988 and sentenced him to undergo imprisonment for life. The appellant had challenged said the judgment of conviction and
sentence.
The prosecution case, in brief, is as follows:-
The deceased Bellarmin, the accused Vijayan and P.W.2 Nixon are brothers. The deceased is the younger brother of the appellant/accused and
Nixon is the last brother. The deceased Bellarmin was an unemployed person and was not doing any work and was always demanding money
either from the accused or his mother. He was a vagabond. He used to roam out and only comes to the house for having meals. He was often
quarrelling with his brother and mother, by demanding money for his personal expenses. If money is not given, he used to fight with them. On 7-2-
1988, at about 5.30 P.M., the deceased came to the house and demanded money from the accused, to which the accused replied that since his
mother and sister had gone out, asked him to get money from them. P.W.2 Nixon was also there. Since the deceased persisted in demanding
money, the accused told him that he has no money and asked him to go out from the house. Immediately, the deceased got annoyed by the reply
given by his brother and so saying, he took up an axe, which was lying there and attacked the switch board, cot, water pan and caused damage to
the house. When the accused questioned the action of the deceased, he attempted to cut the appellant with the axe. However, the appellant was
able to snatch the axe from the hand of the deceased. In that process, the accused sustained injuries on his left little finger. Immediately, the
appellant attacked the deceased with the axe snatched from his hand on his head. The deceased fell down and blood was coming out. P.W.2
Nixon, who was witnessing the incident, ran away from the scene. The accused after seeing his brother lying dead, went to the Village
Administrative"" Officer of Perugudi, viz., P.W. 1 and narrated the incident at about 7 P.M. She wrote her report under Ex.P2 and went to the
place of incident, found the dead body lying there and prepared Ex.P.2. From there, P.W. 1 took the accused with the axe in his hand to the Sub-
Inspector of Police P.W.8. P.W.8 on the basis of the statements in Exs.P. 1 and P2 registered a case in Cr. No. 33/88 u/s 300 of the Indian Penal
Code. He prepared the First Information Report under Ex. P. 12 and forwarded the same to his superiors as well as to the jurisdictional
Magistrate. He also phoned up to the Inspector of Police about the factum of the accused being present before him. P.W.11, the Inspector of
Police, who was in charge of Valliyoor Police Station, took up the investigation at about 9.15 p.m. He noticed the accused kept in the police
station. He collected the F.I.R. and arrested the accused. The Inspector searched the accused and he seized the blood-stained lungi and shirt
M.O.s 10 and 11 from the person of the accused. He also noticed that the accused also had sustained injury on his left litter finger. He sent the
accused to the hospital for treatment. P.W.6, the Doctor, examined the accused and noticed an abrasion 1 cm. on the left litter finger and issued
the wound certificate under Ex.P7 for the same. According to the Doctor, the injury was simple. P.W. II then proceeded to the scene of
occurrence along with the police constables. Since there was no proper light in the scene of occurrence, on the next day morning, he prepared the
observation mahazar as per Ex.P3 and rough sketch under Ex.P.13. He conducted the inquest between 7.30 am. and 10 am. on the dead body of
the deceased in the presence of pahchayatdars as per Ex.P. 14. During inquest, he recorded the statements of P. Ws.1 to 3. He had sent the dead
body through the police constable P.W.10 along with Ex.P5 requisition for postmortem examination. P.W.6, the Medical Officer attached to the
Government Hospital, Panagudi, on receipt of the requisition conducted autopsy on the dead body of the deceased at 4 P.M., and noticed the
following injuries:-
A lacerated wound 8 cm. x 1/2 cm. x 1 cm. present on the occipital region of scalp 11 cm. above the left ear.
A lacerated wound 5 cm. (1) x 0.5 cm (b) x 1 cm. (d) present 1 m.m. below the first wound
A lacerated injury 4 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present behind the left ear.
A lacerated wound 5 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present below the second injury.
A lacerated wound 6 cm. (1) (1/2 cm. (b) x 1 cm. (d) present below the 2nd injury.
A lacerated wound 2 cm. (1) x 1/2 cm. (b) x 1 cm. (d) present in the right frontal region of scalp.
A lacerated wound 3 cm. (1) x 1 cm. (b) x 1 cm. (d) present below the right ear.
A lacerated wound 4 c.m.(1) x 1 cm. (b) x 1 cm. (d) present 1 cm. below the 7th wound
A lacerated wound 6 cm. (1) x 1 cm. (b) x 1 cm. depth present 8 cm. over the right ear
An abrasion 5 cm (1) present on the right chest wall.
An abrasion 4 cm. (1) present on the right axilla.
An abrasion with contusion 3 cm. (1) present in the right infrascapular region of back.
On dissection of scalp there is comminuted fracture of the left frontal, parietal and temporal bones.
On removal of the brain there is fracture of the anterior crania fossa middle cranial fossa on the base of skull, bleeding present.
On dissection of injury No: 12, there is fracture of 8,9,10,11 and 12 ribs on this right side. On dissection, a lacerated injury 12 cm. (1) x 3 cm.
(b) x 3 cm. (d) present on the right lobe of liver. A lacerated injury 3 cm. (b) x 3 cm. (b) x 3 cm. (d) present on the right kidney. Large penmephric
haemorrhage present. Tongue not protruded. Bleeding from the right ear present Groin Genetalia Organs NAD, Hand clenched empty. Opening of
thorax; ribs, vide injury, Heart: wt: 902. Vessels empty.
Lungs: weight each 1102 firm. No injury: Hyoid bone is intact. Stomach:- Dilated weight with contents-1202 containing 202 gms. full swelling
chocolate colour liquid present. Liver - weight 4762; vide injury: Spleen: weight 602 firm. Right Kidney - weight 402 vide injury. Left Kidney- No
injury. Small intestine-pale empty; large intestine - empty. Bladder - empty. Pelvis - NAD, opening of Head; vide injury - Brain weights 4402 gum
Bones: vide injury, spinal column soft parts, Bones: no injury, Atlas & Axis: No injury:
The Doctor was of the opinion that the deceased would appear to have died of shock and haemorrhage as a result of the injuries sustained by him
over the head and abdomen, injuries 13, 14 and 15 are fatal and the death would appear to have occurred 20-22 hours prior to autopsy. The
Doctor issued post mortem certificate as per Ex.P6. At 10-15 am., P.W. 11 seized M.O.5 damaged ever silver water pan. M.O.6 damaged
switch board, cot frame in two pieces, M.O.2 blood-stained sand. M.O.3 sand without blood and M.O.4 under a cover of mahazar Ex.P4. He
recorded the statements of few more witnesses. After receiving report of the Chemical Examiner and the Serologist as per Exs.P10 and P 11, and
after completing the investigation, he submitted the charge sheet on 18-3-1988.
The Sessions Judge, on committal, framed charge u/s 302 I.P.C. The accused pleaded not guilty. On behalf of the prosecution, P. Ws. 1 to 11
were examined and Exs.P1 to P14 were got marked and M.Os. 1 to 11 were produced. No witness was examined nor any document was
produced on behalf of the defence. The Sessions Judge, after conclusion of the trial and after putting all the incriminating circumstances, which
were against the accused in the statement u/s 313 Cr.P.C.s, convicted and sentenced as mentioned above.
We heard the learned Advocate Mr. S. Shanmugavalayutham, appearing on behalf of the appellant and the learned Additional Public
Prosecutor, appearing on behalf of the Respondent. They took us through the material evidence and relevant documents of the case.
Learned Advocate for the appellant submitted that the court below was not justified in placing reliance on the evidence of P.W.1 and Ex.P1 the
extra Judicial confession made by the accused before P.W.1 to convict the accused especially in view of the fact that the so called eye witnesses
have not supported the prosecution case. He pointed out that apart from this piece of evidence, there is no other evidence to connect the accused
in the said crime. His further argument was that the evidence of P.W.1 and Ex.P1 cannot be acted upon in view of the fact that P.W.1 was a
stranger to the accused and it is hard to believe that he would have gone and made the extra judicial confession before a stranger. His next
argument was that the act committed by the accused is protected by the right of private defence. His last submission was that the said act has been
committed by the accused in the spur of the moment and in a sudden provocation. On these grounds, he submitted before us that the Sessions
Judge was not justified in convicting the accused.
We heard the learned Additional Public Prosecutor on these points. He pointed out that the Sessions Judge was justified in placing reliance on
the evidence of P.W. 1 and Ex.P1. He also pointed out that there are materials to show that the accused was not a stranger to P.W. 1 and he
knew P.W. 1 and that being so. there is nothing unusual for the accused to go and report this matter before P.W.1. His further submission was that
the accused cannot claim right of private defence in view of the fact that he had snatched the weapon viz., M.O.1 axe from the hand of the
deceased and hence there was no need for the accused to commit the murder of the deceased. As far as the sudden provocation is concerned, the
learned Additional Public Prosecutor has submitted that this plea is not available to the accused in view of the fact that there was exchange of
words between the accused and the deceased and a wordy quarrel continued for sometime. On these points, he submitted before us that the
Sessions Judge was justified in convicting the accused.
It is not disputed before the trial court and even before us the learned advocate for the appellant had not disputed that Bellarmin met with the
homicidal death in view of the evidence of the Doctor P.W.6 and the post mortem certificate Ex.P6, wherein the Doctor has clearly stated that the
deceased would appear to have died of shock and haemorrhage as a result of the injury sustained by him over the head and abdomen. The
prosecution has placed reliance on the evidence of P.W. 1 and Ex.P1 the extrajudicial confession given by the accused. Ex.P1 has been produced
before us. The said extrajudicial confession reads as follows:
Today on 7-2-1988 Sunday at about 7 p.m., I was at my village Administrative Office along with Village menial by name Arumugam. At that time
Vijayan, son of Jayasingh, aged 21, residing at No. 6/19, II Lane, Kavalkinaru village, appeared before me with blood-stained axe with wooden
handle and gave a statement. I am residing at 2nd Lane Kavalkinaru Panchayat Mantram Street along with my mother Grace, older Sister
Vasanthi, my elder brother Bellarmin, my younger brother Dennis and Nixon. My father died 10 years back. We Were leading our life by working
as collies. My elder brother Bellarmin was not doing any work. He was wandering like a vagabond. He used to come to his house only for taking
food. He used to pick up quarrels frequently with my mother and ourselves by demanding money for his expenses. On 7-2- 1988, at about 5-30
p.m., my elder brother came to my house. He demanded money for his expenses, since I was at home. I told him that mother and elder sister have
gone out and to ask them after they return. Nixon alone was available in the house. He asked ''you mother fucker'' give me money. I asked him to
go out since I have no money. He replied that I have no right to ask him to get out. Saying so, he picked up an axe lying inside the house and
caused damage to switch board, cot, water pan (bowl) in the house. I questioned him why he is doing injustice like this. He was aimed to cut me
with the same axe. I snatched the axe. I sustained a simple injury on my left hand little finger.
Then I attacked him with front side and backside of the axe repeatedly on his head. He fell down. Blood was coming out. My younger brother
Nixon ran away on seeing the occurrence. When I looked at my elder brother, he was found dead. Then my mother, sister and all came to the,
house. They shouted against, about the incident for killing my brother. This incident was known to the neighbours also. My lungi and shirt which
were worn by me got blood-stained. I was not aware of what to do and went outside the village and now 1 am giving this statement about the
occurrence.
P.W. 1 has stated that she is the Village Administrative Officer of Perungudi Village. On 7-2-1988 at about 7 pm. she was in her office
attending to work. At that time, the accused came to her office with bloodstained axe M.O.1. The accused gave statement about the occurrence
and on his dictation, she wrote down the same, which is marked as Ex.P. 1. Afterwards she went to the scene of occurrence along with the
accused and the village menial Arumugam. She found the deceased Bellarmin lying dead with bleeding injuries in the house. She prepared a spot
report which is marked as Ex.P2. After that she went to Panangudi Police station along with the accused. Exs.P1 & P2 and M.O.1 to take further
action. The sub Inspector was available there and she produced the accused before the Sub Inspector of Police. In the cross-examination, no
motive has been suggested to this witness as to why she should depose falsely against the accused. The only answer elicited in the cross-
examination, which is favourable to the defence is that she does not know the accused before he gave the confession. But, a suggestion was put to
this witness that she was not known to the accused before the accused gave the statement to her, which has been denied by this witness. She has
admitted that the family members of the accused were known to her and she knew them because they used to come to pay tax. Some suggestions
were put to this witness regarding interpolation of the statement made by the accused. Apart from this nothing has been elicited in the cross-
examination to discard the evidence of P.W.1 and the contents found in Ex.P1. Hence, we believe the version given by P.W. 1 and also the
confession under Ex.P1.
A reading of Ex.P1 would clearly go to show that the deceased Bellarmin was not doing any work and he was wandering like a vagabond and
he used to come to the house only for taking food and he used to pick up quarrels with his mother and the accused and others by demanding
money for his expenses. On 7.2.88, at about 5.30 pm, the deceased came to the house and he demanded money for his expenses with the
accused since he was alone in the house. He told him that the mother and the elder sister had gone out and asked him to collect the money from
them, after they returned. His another brother Nixon was also available in the house. Then the accused asked the deceased to collect the money
from the mother and sister. He used abusive and filthy words saying ''ye bastard"". The accused being annoyed by the word uttered by the
deceased asked him to get out from the house. Immediately, the deceased picked up an axe lying inside the house and caused damage to the
switch board, cot, and water pan in the house. When the accused questioned him as to why he was causing damage to the properties, the
deceased aimed at him to cut him with the same axe. However, the accused snatched the axe from the deceased and in that process, he has
sustained simple injury on his little left finger. Then he attacked the deceased on his head with the axe.
A reading of this statement given by the accused before P.W. 1 clearly goes to show that there was threat to his life. The deceased damaged
the properties and he was armed with axe and was aiming at the accused. Fearing that would be the consequence from the act of the deceased,
the accused snatched the axe from the deceased and attacked him. At that moment, it would be very difficult to think about the consequences. The
deceased had already damaged the house properties and he was in an aggressive state of mind and he was using filthy language against the
accused as well as his mother and he was armed with a deadly weapon viz., axe and was aiming at the accused. In those circumstances the act
committed by the accused will be protected by the right of private defence of person.
However, the learned Additional Public Prosecutor submitted before is that when the accused snatched the weapon from the hands of the
deceased, he will not have the right of private defence to attack the deceased. Here is a case, where the deceased had already destroyed some of
the properties of the house and he was using abusive words against the accused and his mother and he was armed with a dangerous weapon viz.,
axe and he was aiming at the accused. Under these circumstances cannot be stated that the accused had no right of private defence, the moment
he snatched the axe from the hands of the deceased. We are of the considered opinion that the accused has committed the said act in exercise of
his right of private defence. Accordingly, we hold that the Sessions Judge was not justified in convicting the appellant for an offence punishable u/s
302 I.P.C. We hold that the appellant/accused has committed the said act in exercise of his right of private defence and he is entitled to the same.
In the result, the appeal is allowed, and the appellant is acquitted of the charge. Since the appellant is on bail, the bail bond executed by him
shall stand cancelled.