SIRKAR PROSECUTOR Vs. ANANTHAN KUTTAN

JUDGEMENT

(1.) THIS is an appeal by Government against the acquittal of accused 1 in Sessions ease no. 23 of 1123, on the file of the Sessions Court, Trivandrum, of the offence of murder. There were, in all, 3 accused persons in that case. Accused 1 was charged with causing the death of one Devadasan by stabbing him With a pen-knife and causing hurt to one Kunju. Bankaran (P. W. 2) who was Devadasan'a em-ployer. He was also stabbed with the same knife as killed Devadasan. Accused 2 and 3 were Obarged with abetment of the commission of these offences by accused 1. The learned Sessions Judge who held the trial acquitted accused 2 and 8 and found accused l not guilty of the offence Of murder. Though it was found on the evidence tbat Devadasan died as a result of the injury he sustained by accused 1 stabbing him with a pen. knife, the learned Judge held that accused l did it in the exercise of the right of private defence of his own body. Ho was therefore acquitted of murder. At the same time it was held that ha was guilty of the offence of causing hurt to P. W 2 with a deadly weapon He was accordingly convicted of the offence Under Section- 824, Tr, Penal Code and sentenced to undergo rigorous imprisonment for 6 months. This was on 6-8-1128. There waa no appeal against tbat conviction or sentence. Government preferred this appeal on 20 2 -1124.

(2.) THE facts of the case are correctly set out in Para. 2 of the lower Court's judgment aa follows :

(3.) THAT tbe accused before Court gave a stab to Devadasan with a pen-knife and that the latter died as a result thereof, admit of no doubt on the evidence. P. Wh. 3, Section 4, 5,6, 7 and in are eyewitnesses to the occurrence and their evidence together with tbe inquest report Ex. A and the pout mortem certificate Ex. o, proved by P. wsection 17 and 14 respectively establish the above facts in unmistakable terms. The learned Judge, however, thinks that Devadasan waa the aggressor and the accused had real apprehension of danger to bis life when be used the knife against Devadasan. We are afraid that there is no evidence to sustain these findings. The proseoution evidence does not go beyond showing that Deva. dasan started a volley of abuse oa soon as be saw the accused 1 seated on the veranda of the accused s's tea shop and that during the course of mutual exchange of abusive words. Devadasan approached the accused or rather went near to the place the latter was seated. Immediately the accused got up and gave a blow With his right hand on Devadasan's cheek. Because Devadasan started the abuse or he went near to the accused, it cannot be taken that he had any aggressive intention, Even taking that the accused apprehended that Devadasan might cause some injury to him, it did not certainly justify the uee of the pen-knife against Devadasan. The prosecution evidence taken as a whole gives no countenance to the suggestion that Devadasan had a pen. knife in hia hand, when he went near to the place the accused was sitting. 01 the 7 eye-witnesses, it is only P. W. 6 who makes a statement that Devadasan had a penknife in his band when he approached the accu-Eed. The prosecution tendered that witness foe cross-examination before the Sessions Court. Neither in his statement at the inquest nor iu his deposition in the Committing Magistrate's Court did he maka a statement to that effect. Even he does not say that it waa an open pen-knife, m. 0. 3, a pen-knife which was seen lying near Devadaean's dead body at the time of the inquest was lying there folded. No doubt that pen-knife belonged to the deceased. If an open pen. knife wa3 in Devadasan's hand when he approached the accused, it is difficult to believe that the latter who was himself armed with an open pen-knife would have first used his hand rather than the pen-knife itself against Devadasan. Again, the evidence unniistakeably shows that what Devadasan did when he received the blow on his oheek was to go further near to the acoused with out-stretched bands as if to catch bold of him. If he had a penknife ready in his hand open, it is difficult to think that that would have been his conduct, Assuming, therefore, that Devadasan's approach towards the accused caused some apprehension in the mind of the latter that Devadasan might cause some hurt to him, it is impossible to hold that there could have been any reasonable ap-prehension for the accused that Devadasan unarmed would have caused his death or even grievous hurt to him. In this view of the matter, the learned Sessions Judge's order of acquittal cannot at all be sustained.