Presuction not required to prove absence of facts for braiging cae within a general exception.

JANARTHANAM, J.

The appellant was the accused in S.C. No. 149 of 1985 on the file of the Court of Session West Thanjavur Division at Thanjavur. He was found guilty for an offence under section 302 of the Indian Penal Code, convicted thereunder and sentenced to imprisonment for life. Aggrieved by the said conviction and sentence, the present action has been resorted to by the appellant-accused.

2. Brief facts are :-

a. Accused and PW 1 are brothers. They are residents of Alankottai Village, situate within the jurisdictional limits of Paravakottai Police Station. They inherited certain ancestral properties, subsequent to the death of their father.

b. Some five years prior to the occurrence, which event happened on 18-7-1985, PW 1, in order to the out his livelihood, migrated from the Village and settled down at Madras. He was transacting business in peas and his brother the accused was looking after the ancestral properties.

c. Three years prior to the occurrence, PW 1, got married. His father-in-law was one Thangaraj (since deceased). PW 1 was said to have purchased a field going by the name Ulleri Vayal, from out of his earnings. Some five to six months prior to the occurrence, the brothers partitioned the properties between themselves, in the manner suggested by the panchayatdars of the Village. PW 6, their maternal uncle, was one among the panchayatdars. Even the self acquisition of PW 1, namely, Ulleri Vayal or filed was also put in the hotchpot for effecting partition, between the brothers. Subsequent to the partition, accused complained that the partition effected was not equitable and some more properties had to be given to his share. The share of properties that fell to PW 1 in the partition was looked after by his father-in-law, the deceased thereafter.

d. Some ten days prior to the occurrence, the deceased took a cartload of manure to be spread on the filed. At that time, the accused prevented the deceased from doing so stating that unless a repartition of the properties were made equitably, he would not allow the agricultural operations to go on. The deceased appeared to have informed PW 1 as to the dispute raised by the accused later.

e. On hearing the 'distress - call-news' from his father-in-law, the deceased, PW 1 commenced his journey from Madras on 15-7-1985 and reached the scene village Alankettai on 16-7-1985. On the night of 17-7-1985, P.Ws. 6 and 7 and some others met him and apprised that his brother, the accused, had been demanding Rs. 500/- more, since the partition effected earlier was not equitable, in the sense of appropriate share not having been allotted to him. PW 1 appeared to have told them that in due deference to the wishes of the panchayatdars, partition of the properties had been effected and if the panchayatdars, who effected mediation and partition, felt that some more property or money was to be given to the accused, he had no objection for such a course.

f. On 18-7-1985 at about 5.30 p.m. he, along with his father-in-law, the deceased, took a cartload of manure of Ulleri field for spreading it as a prelude to agricultural operation. The accused, who was standing there, objected to the unloading and spreading of the manure stating that unless repartition of the properties was made equitably, no agricultural operations should proceed further. On hearing the same, the deceased told the accused as to what had been told by the mediators like PWs 6 and 7 the previous night. On hearing the same, the accused got wild and ran into rage and proclaimed that for all these troubles, the deceased was responsible and so saying, he whipped out a soori knife (M.O. 1) from his waist and inflicted a stab on the chest of the deceased. By impulse of moment, PW 1 caught hold of the hands of the accused, obviously in a bid to prevent any further attack being mounted and in such process, the accused bit the left wrist of PW 1, in a bid to wriggle out from his clutches. The moment, PW 1, was bitten by