An aggressor cannot claim the right of private defence.

THOMAS, J.

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 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.

4. Appellant had a lacerated wound 6 cm long on the top of his head which he sustained when deceased whacked him with the stick. Deceased had five serious injuries on the head which cut his scalp, skull and brain, besides a skin deep incised injury on the left palm. According to the appellant, while he was walking along the main road, deceased confronted him with a chopper and beat him with its handle; when he wrested the chopper, the deceased brought a stick to attack him and it was then that appellant used the chopper.

5. Ext.P. 10, Certificate of Forensic Science Laboratory shows that deceased's blood as well as hair had stuck on M.O. 2 stick. On the strength of it, learned counsel contended that prosecution story is only to be thrown overboard since, according to that version, the stick was used to beat the appellant. We are not impressed by this contention since it is nobody's case, not even that of the appellant, that any stick was used against the deceased. Hence, probably the stick when dropped down would have come into contact with the chipped off hairs of the deceased as well as his blood which must have flowed to the ground.

6. Among the three witnesses who spoke to the occurrence, P.W. 1 is member of a hilltribe. He was then engaged in the road repair work near the scene. Hence he could see the incident. In fact, the First Information Statement was recorded by the police from this witness. P.W. 2 was employed by the contractor who undertook the road work as his supervisor. P.W. 3 is the driver of the lorry which was parked on the roadside for changing the tyre. P.Ws. 2 and 3 were in conversation with each other when the incident happened. These three witnesses said, in one accord, about the sequences of the occurrence which are consistent with the prosecution version. We are not inclined to disbelieve their version merely because some minor discrepancies have been elicited in cross-examination.

7. Deceased's wife Omana (P.W. 4) said that she saw the appellant proceeding with the chopper and after sometime returning with the weapon. The time and place of occurrence in this case would fit in with her testimony. She also spoke about the earlier am