SUBAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant was charged for the offence punishable under S.302 IPC. But he was convicted for the offence punishable under Part-1 of S.304 IPC having found that on the sudden and unexpected attack he lost himself control and reacted swiftly and therefore he was entitled to the benefit of Exception 1 of S.300 IPC. Therefore he was guilty only of culpable homicide not amount to murder. It was found that there was intention on his part to cause injury likely to cause death.

(2.) According to the learned counsel for the appellant, the entire evidence on record when taken together will reveal that the exercise of private defence is available in this case, even though it was not specifically pleaded. Necessarily, the benefit of right of private defence ought to have been extended to the appellant/accused.

(3.) It is further contended that the prosecution had not revealed the entire occurrence and did not divulge the entire facts as well. This resulted in concealment of the facts relating to his right of private defence. Even going by the evidence PW 3, the only occurrence witness, no consistent case is revealed. Therefore it would be unsafe for any Court to depend upon the sole witness like PW 3 to fasten guilt.