Judgment

RAY, J.: - This is an appeal by special leave from the judgment dated 19 September, 1968 of the High Court of Kerala setting aside the order of acquittal passed by the Sessions Court on 17 July, 1967 and convicting the appellant under Section 304, Part II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years.

2. The appellant was charged under Section 302. Indian Penal Code for having murdered his elder brother on 20 March, 1967. The prosecution case was as follows. There was exchange of words between the appellant George and his elder brother Dominic in the course of which George drew out dagger from his waist and Dominic bent down to pick up a stone. Before Dominic could rise after picking up the stone. George rushed towards Dominic and stabbed him with the knife. The stab was warded off by Dominic. George again stabbed Dominic on the left thigh causing an incised gaping wound off the upper third of the left thigh. Immediately thereafter George ran away. Dominic was taken to the Government dispensary and on the way he died.

3. There were three eye-witnesses. Of them two turned hostile. P. W. 3 Thomas Mathai the third eyewitness was the family lawyer and friend of both the brothers George and Dominic. The trial Court found Mathai to be an independent and respectable witness. His evidence was that he had not seen George drawing out the knife. His attempt to pacify both the elder brother and the appellant was in vain. When the quarrel assumed an aggravated form Mathai intervened and separated both Dominic and George. Dominic then was removed a little towards east and George towards west George who was behind Mathai suddenly passed him by his side with a knife and stabbed Dominic. The evidence of Mathai was that when he saw George passing by his side with the knife. Dominic was stooping down. According to Mathai these acts of George and Dominic were simultaneous.

4. The appellant George took the plea of right of self-defence. The trial Court found that George and Dominic were on bitter inimical terms. There were property disputes. Litigations were going on between them. The trial Court held that in view of the bitterness existing between the two brothers George was justified in remunerably apprehending grievous hurt or danger to his life at the hands of Dominic when he stooped down to pick up a stone of a dangerous size. The trial Court held that it could not be conclusively held from the evidence of Mathai that Dominic bent down to pick up the stone only after seeing the appellant advancing towards him drawing out a knife. The trial Court said that if it was Dominic who first bent down to pick up the stone George could in that situation reasonably apprehend grievous hurt or danger to his life at the hands of Dominic. The other important piece of evidence of Mathai was that he did not see George draw out the knife. The trial Court held that the prosecution failed to prove beyond any reasonable doubt that George was the aggressor and that the incident happened in the manner alleged by the prosecution. The trial Court therefore gave the benefit of reasonable doubt to the appellant George and acquitted him.

5. The High Court held that the Sessions Court "quite justifiably entertained a reasonable doubt as to whether George or Dominic was the aggressor" The High Court thereafter said that the question still remained whether the accused George had excessded the fight of private defence. The High Court held that even if Dominic was the aggressor George had exceeded the fight of private defence. The reasoning given were that Dominic was completely unarmed and when Dominic stooped down and took a stone George could have reasonably apprehended that Dominic would with the stone he had taken, ause minor injuries on him and thus cause him simple hurt and not that Dominic would kill him or cause grievous hurt to him.

6. The High Court having held that Dominic was the aggressor erred in holding that t