IMPORTANT POINT
The right of private defense is not available to an aggressor, and the evidence supported the conviction for murder and criminal trespass.

JUDGMENT :

G.Girish, J.

The judgment dated 27.09.2017 of the Additional Sessions Court-I, Kottayam in S.C.No.116/2012 convicting and sentencing the sole accused for the commission of offence under Sections 449 and 302 I.P.C, is under challenge in this appeal. The appellant herein who faced trial in the said case, was awarded life imprisonment and fine Rs.50,000/- under Section 302 I.P.C and rigorous imprisonment for five years and a fine of Rs.10,000/- under Section 449 I.P.C.

Prosecution Case

2. The accused and the victim are neighbours. A pathway in front of the courtyard of the house of the victim, is the only way of access to the residence of the accused. The transit of the accused and the persons associated with him through the above pathway often gave rise to issues between the victim and the accused. The accused wanted to widen the above pathway into a cartable road, but the victim was not willing to surrender land for it. Due to the above grudge, the accused used to verbally abuse the victim and his wife and threaten them. On 23.02.2011 at about 2:15 p.m, the accused, as usual, parked his Maruti Omni Van at the road ending near the residence of the victim and walked through the pathway by the side of the courtyard of the house of the victim showering verbal abuses attributing illicit relationship of the wife of the victim with a neighbour. PW4, the driver of the accused followed him. Hearing the abusive words of the accused, the victim and his wife came to the sitout of their house and asked the accused to stop the verbal abuse. Thereupon the accused criminally trespassed into the sitout of the house of the victim, pulled the victim out to the courtyard of the house and stabbed on his right eyebrow with a knife inflicting incised penetrating wound which pierced the dura and extended upto the under aspect of frontal lobe of the brain. PW2 and PW3, the neighbours of the victim, rushed to the spot hearing the screams. The victim who collapsed at the courtyard of his house, was taken to a nearby private hospital by PW2 and PW3, in the vehicle of the accused driven by PW4. The doctor who attended the victim at the private hospital declared that the victim was brought dead.

Registration of the Crime and Commencement of Investigation

3. On getting information about the incident from the victim’s younger brother’s wife, PW1, the son of the elder brother of the victim, went to the private hospital and saw the body of the victim soaked in blood. After ascertaining the details from PW2 and PW3, PW1 went to the Kaduthuruthy Police Station and gave Ext.P1 first information statement on the basis of which Ext.P13 first information report was registered by PW20, the Sub Inspector of Police. Soon, PW21, the Circle Inspector of Police, took over the investigation and proceeded with the legal formalities. The accused was arrested by PW21 on the date of the incident itself. PW21 also conducted the inquest and effected the recovery of the weapon of offence and prepared the scene mahazar. The dead body was subjected to autopsy, and the material objects were sent for scientific analysis. During the course of investigation, the statements of PW2 to PW4 under Section 164 Cr.P.C were recorded by PW22, the Judicial First Class Magistrate-I, Ettumanoor. After the completion of the investigation, PW21 laid the charge sheet before the jurisdictional Magistrate.

Enquiry by the Magistrate and Committal of the Case

4. The Judicial First Class Magistrate-I, Vaikom before whom the final report was filed, took the case to files and issued summons to the accused. After procuring the presence of the accused, the learned Magistrate complied with the legal formalities and committed the case to the Sessions Court, Kottayam which made over the case to the Additional Sessions Judge-I for trial.

Framing of Charge

5. After considering the prosecution records and conducting the preliminary hearing, the learned Additional Sessions Judge-I, Kottayam framed charges under Sect