Accused to be convicted u/s 304 Part II.P.C.

B.M. Thulasidas, J.:

The appellant stands convicted under Sec.302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He was alleged to have stabbed to death one John alias Thambi on 1.10.1989, at about 8.00 p.m., from near the Arrack shop of P.W.3, whom he was alleged to have abused following his refusal to give arrack on credit that the deceased heard as he came there and tried to reason with him to send him away. The First Information statement, Ex.P-1 as given by P.W.1, an eye witness, to P.W.9, on the basis of which Crime No. 154 of 1989 of Rajapuram Police Station was registered. P.W.10 investigated the case. He held inquest from the mortuary of the Government Hospital, Kanhangad on 2.10.1989 and as per Ex.P-7 report he recovered M.O.12 to M.O.16. As per Ex.P-2 scene mahazar, M.Os.1 to 11 were seized. Post-mortem was conducted by P.W.6 who issued Ex.P-4 certificate. The deceased had (ante-mortem)

“An incised wound elliptical in shape 4 cm × 2 cm obliquely placed on the front of the right side of chest. It is 6 cm below the right Sternoclavicular joint and 4 cm, to the right of the midline, upper and of the wound is slightly rounded compared to lower end which is more sharp. On probing wound is directed downward and medially and is entering the thoracic cavity.”

He also found:

“The inter costal muscles below the 3rd rib cleanly cut. The 4th rib is sharply cut at the stern costal junction. On opening the thoracic cavity, a cut of 2 cm length is seen on the medial border of the right lung overlying the heart, in line with the external wound. There is incised wound on the pericardium overlying the right auricle (alrium) 3 cm. × 1/2 cm. and some collection of blood in the pericardial cavity. There is an incised wound 2 cm. × 0.4 cm., over the upper and anterior part of right alrium and has entered the right alrial carity. Right thoracic cavity contains about 600 ml of blood Right lung is adherent to the thoracic wall due to fibroses of the upper part of lung and is smaller in size.”

and opined that the deceased died of haemorrhage and shock due to the injury to the heart, which was sufficient in the ordinary course of nature to cause death, and maintained that M.O.1 could have caused it. The accused was arrested at 3.00 p.m. on 4.10. 1989 from the road at Chemberi in Panthady Village and as per Ex.P-8 statement, M.O.1 was seized under Ex.P-5 mahazar. M.Os.2 and 3 were also seized from him under Ex.P-3. After completing the investigation he laid the charge-sheet.

2. P.Ws.l to 10 were examined, Exs.P-1 to P-9 and M.Os. 1 to 7 were marked. When questioned under Sec.313 of the Code of Criminal Procedure, he denied the incriminating circumstances and put forward a case of self-defence and grave and sudden provocation offered by the deceased. No witness was examined in defence. Ex.D-1 was marked.

3. We heard counsel for the appellant and the Public Prosecutor.

4. That death of John alias Thampi was homicidal following the fatal stab injury caused by the accused in the incident that happened at 8 p.m. on 1.10.1989 is not in controversy. The place of incident had been identified by P.W.10. Ex.P-3 is the scene mahazar. There were telltale marks of the occurrence at the place. P.Ws.1 to 3, who are familiar with the accused and the deceased, had given acceptable evidence about the incident. P.W.3 who was employed in the arrack shop deposed that on 1.10.1989, around 8 p.m. the accused came consumed 100 ml. of arrack and paid Rs.5 being the price. He left the shop but soon returned and wanted him to give 100 ml. more on credit, that he refused since Rs.4.50 was already due from him in connection with a prior transaction. He went away but came again and after showing a five rupee not demanded 100 ml. of arrack that he gave him. But he did not pay the price, told him to collect it if he could and left showering abuses to which he did not respond but said that he shall speak to him afterwards. Just at that time the decea