MATHEW ALIAS MATHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) In spite of the fact that it was the deceased who struck the first blow, the question - who was the aggressor, deceased or the appellant - remains decisive in this appeal. If the deceased was the aggressor, then appellant had the right of private defence which could be extended even up to causing of deceased's death on the facts of this case and hence there is no question of exceeding that right. Thus the crucial question is whether appellant had right of private defence at all.

(2.) The incident happened around 2.30 p.m. on 6-3-1987. Appellant, armed with a chopper went up to the road margin near deceased's shop and rumbled out : "I won't return without killing you", and hurled a challenge to the deceased to come out. Deceased came out of the shop with a stick and beat the appellant on the head. It was then that appellant inflicted the fatal cuts on the deceased's head with the chopper. This, in substance, is the prosecution case which found acceptance with the Sessions Judge. He, therefore, convicted the appellant under S. 302 of the I.P.C. and sentenced him to imprisonment for life.

(3.) Appellant, a bachelor, is the cousin of the deceased. According to the prosecution case, deceased's wife Omana had complained to her husband that appellant was making libidinous overtures to her. Deceased administered a warning to the appellant and later when appellant persisted in erotic pranks deceased filed a petition before the police. Appellant and deceased became enemies and on the morning of this crucial day deceased gave a couple of thrashes on appellant's back. With two contusions he got admitted in Vythiri Hospital, but skulked from there by noon. He went home and took a chopper and walked up to deceased's bunk. What happened thereafter has been narrated earlier.