STATE Vs. GOVINDA PILLAI GOPALA PILLAI

JUDGEMENT

(1.) THIS appeal is brought on behalf of the State from the order of acquittal made by the learned Sessions Judge of Quilon in Sessions Case No. 14/50. The accused was charged with murder under Section 301 of the Travancore Penal Code. The learned trial Judge on hearing the evidence reached the conclusion that death was caused in the lawful exercise of the right of private defence and that consequently the accused has not committed the offence of murder. He has passed an order of acquittal.

(2.) THE facts will have to be stated briefly in order to appreciate the contentions of the parties. The accused was not on good terms with the deceased. About 19 days prior to the date of occurrence, that is to say on 26. 7. 1124, while they were engaged in playing cards in the house of a mutual friend, they quarrelled. This was followed by the deceased taking a plank of wood that was nearby and hitting the accused severely on the right side of his face as a result of which the accused ' seems to have fainted. The date of occurrence was 17. 8. 1124, as already stated 20 days after the first quarrel between the parties. At about 9 P. M. on 17-8-1124, the deceased was going from his own house to the house of his wife. He had a lighted cadjan torch in his hand. After travelling a short distance from house, while he was walking along a paddy field the accused accosted him. There were no eyewitnesses to speak about the sequence of events that followed. There is a dying declaration recorded in the Mavelikara Hospital where the deceased was removed soon after he had sustained the fatal injury and there is also a confession of the accused recorded by a competent Magistrate about three hours after he was arrested on 22. 8. 1124. According to both these versions, the accused used a sharp instrument, which has been produced as M. O. VI at the trial and with that sharp instrument he dealt a blow in the region of the abdomen of the deceased which pierced the abdominal cavity and a part of the intestines protruded through that wound. In the course of the trial, the Police seem to have tried to improve the case by introducing another weapon which has been marked as M. O. III. This is a sharp dagger. M. O. VI can be equally effective in causing the death of the victim.

(3.) IN the confession made by the accused he stated that when he was face to face with the deceased at the scene of occurrence, the deceased hit him with the lighted torch on the right side of his chest. It was really a thrust with the lighted torch and the injury cannot be described as light. The doctor, Pw. 11 who examined the body of the accused has spoken to the effect that it was not merely a light burn but according to the language used by him it can be described as a burn of the second degree which means it is more than skin-deep. Then, according to the accused he used M. O. VI for preventing further attacks by the deceased. In the dying declaration the deceased does not refer to the attack made by him with this lighted torch. He only refers to the stab injury inflicted on his body by the accused. There cannot be any doubt that at the time of the encounter, the lighted torch was used by the deceased. This is evident from the injury that was noticed on the body of the accused and from the evidence of the doctor Pw. 11.