Dalveer Bhandari, J.— This appeal is filed by Moorthy, son of Kuppan against the judgment of the High Court of Judicature of Madras in Criminal Appeal No. 377 of 1991 by which the appellant was convicted under Section 304 Part I IPC and sentenced to seven years of imprisonment.

2. Brief facts of the case which are necessary to dispose of this appeal are as under: PW 1, Palaniammal and her son, Murugan, the deceased in this case were in possession and enjoyment of a porambok land and regarding that there was a dispute at the instance of the accused claiming a right to enjoyment and possession to the said property. Accused 1 and 2 are brothers and Accused 3 has two young children called Senthil and Subhash.

3. The incident had taken place on 18-5-1988 in the evening at about 4.30 p.m Even on that morning there was an incident in which the parents of Accused 1 and 2 and the wife of Accused 2 sustained injuries which resulted in a complaint against the deceased and others before the police. PW 1, Palaniammal (the mother of the deceased) sustained a fracture in her leg when she accidentally fell down. She was admitted as an inpatient in Government Hospital at Salem in the female surgical ward.

4. At 4.45 p.m on 18-5-1988, the deceased Murugan had visited his mother in the hospital. When he was talking to his mother, Accused 1 (Rathinam) and Accused 2 (Moorthy) entered that ward with knives. Accused 1 stabbed Murugan on his stomach resulting in a bleeding injury. Murugan, after sustaining an injury raised an alarm and tried to escape from that place by running away. However, while he was running, he tumbled over the steps and fell down in front of the ward. Accused 1 and 2 chased him and after Murugan fell down, Accused 1 and 2 overpowered him and repeatedly attacked on his face and hands by knives. Accused 3 (Kuppayee) is stated to have caught hold of Murugan while the juvenile accused, Senthil and Subhash are stated to have caught hold of his legs by pressing them with their hands.

5. At that time, PW 2, who is the grandson of PW 1 was there. He had also come to the hospital for a courtesy visit. PW 1, in her testimony stated that Accused 1 and 2 stabbed her son many a time simultaneously. The doctor after examining Murugan declared him dead. Thereafter, his body was taken to the mortuary.

6. PW 12, the Sub-Inspector of Police in the Police Outpost, Government Headquarters Hospital at Salem at about 5 p.m on 18-5-1988 received a telephonic message about the incident and immediately rushed to the scene of occurrence. PW 12 recorded statement from PW 1 with regard to what had happened and exhibited as P-1. Thereafter, PW 13, the Inspector of Police was informed. PW 13, after receipt of the information proceeded to the scene of occurrence at 6 p.m and reached the female surgical ward. He examined PW 1. He found the dead body in the mortuary. PW 13 found bloodstains on the ground and also on the tar portion of the road.

7. PW 10 is the Assistant Civil Surgeon attached to Government Hospital, Salem. He conducted post-mortem and found the following injuries:

“1. Lacerated wound 2 cm × .5 cm × .5 cm on the right side of the lower lip.

2. A stab wound 2 cm × 1 cm × 2 cm over the right side of the face at the angle of middle.

3. An incised wound 2 cm × 5 cm × 5 cm over the right side of the face 3 cm below the right eye.

4. A stab wound 3 cm × 1.5 cm × 6 cm over the right side of chest 10 cm below the right collar bone 6 cm medial top the nipple.

5. A stab wound 2 cm × 1 cm × 4 cm over the right side of the chest 2 cm away from Injury 4.

6. A stab wound 2 cm × 2 cm × 6 cm over the right side of the chest 3 cm away from midline and 1 cm below the right nipple.

7. An incised wound 2 cm × 1 cm × .5 cm over the right side of the chest on the mid antillary line 6 cm below and away from right nipple.

8. A stab wound 4 cm × 4 cm × 4 cm over the left side of the abdomen 4 cm above and away from umbilicus.

9. A stab wound 4 cm × 3 cm × 5 cm at the spot of right axilla.

10. An incised wound 2 cm × .5 cm × .5 cm over the left side of the abdomen on the mid antillary line 15 cm above the iliac crest.

11. An abrasion 6 cm × 8 cm over the right front of the left knee joint.

12. An abrasion 6 cm × .5 cm over the right front of the neck, 6 cm above the suprasternal notch.

13. A stab wound 4 cm × 2 cm × 7 cm over the back of the left side of chest 32 cm above the posterior iliac spine.

14. A stab wound 4 cm × 2 cm × 4 cm over the centre of the back and below the nape of the neck.

15. A stab wound 3 cm × 2 cm × 6 cm over the centre of back 7 cm below Injury 14.

16. A stab wound 3 cm × 2 cm × 6 cm over the back of the right side of the chest 6 cm away from Injury 14.

17. An incised wound 8 cm × 3 cm × 2 cm over the back of the right side of the chest 6 cm away from Injury 15.

18. Laceration 8 cm × 4 cm × 2 cm over the inner side of the left elbow.

19. Laceration 4 cm × 3 cm × 1 cm over inner side of left palm.

20. Laceration 5 cm × cm × 1 cm over the dorsal aspect of the left palm.

Heart: Chambers empty. On opening thorax cavity 200 ml of dark fluid blood present.

Lungs: Right—

1. Laceration 4 cm × 2 cm on the lower lobe.

2. A stab wound 3 cm × 2 cm × 2 cm on the lower lobe 2 cm below Injury 1.

3. A stab wound 2 cm × 2 cm × 3 cm on the middle lobe.

4. A stab wound 3 cm × 2 cm × 3 cm found on the middle lobe 1 cm below Injury 3.

Left— Laceration 2 cm × 2 cm × 1 cm on the upper lobe. Cut section congested.

Stomach: Contained 100 gm of partially digested, cooked food particles. Stomach was also congested. No smell of alcohol.”

8. The doctor was of the opinion that the deceased appeared to have died of shock and haemorrhage, as a result of the injuries sustained by him about 10 to 11 hours prior to the post-mortem. The doctor was of the opinion that the injuries could have been caused with a weapon like Material Object 1, knife and death must have occurred instantaneously.

9. The appellant in his statement under Section 313 of the Code of Criminal Procedure stated that the deceased attempted to murder him with a knife in the government hospital and during the course of struggle between the deceased and the accused, even the accused sustained injuries and according to him he was also beaten by the deceased and the brother-in-law of Accused 2 stabbed the deceased in self-defence. It may be pertinent to mention that the statement under Section 313 is not corroborated by the medical evidence. The deceased had received multiple injuries on the vital parts of the body which led to his death.

10. The appellant was examined in Government Hospital, Salem and the following minor and superficial injuries were found on him:

“1. Multiple linear abrasions of varying sizes seen over the chest wall.

2. A lacerated injury 0.5 cm × 0.5 cm seen over the right little finger.

3. A lacerated injury 0.5 cm × 0.5 cm seen over the tip of the right thumb.

4. Two abrasions with dull black colour seen over the left thumb near the root of the right terminal phalanx.

5. Two abrasions dull black in colour seen over the right side of the front of neck and on the left side of the front of neck.”

11. PW 2 is the grandson of PW 1. He was also examined in the case. In his statement he stated as under:

“PW 1 Palaniammal is my grandmother and my mother's mother. The deceased Murugan is my maternal uncle. On 28-5-1988, my grandmother, PW 1 was taking treatment for her injury in Headquarters Hospital at Salem. On that day, at 4.45 p.m I went to Salem for seeing my grandmother, PW 1 Palaniammal. When I was going into the ward where my grandmother was lying, my maternal uncle Murugan came running from the ward with a stab injury on his stomach and crying ‘Ayo, Appah, Amma’. At that time the first accused Rathinam and the second accused Moorthy, each of them having a knife in their hands, ran chasing my maternal uncle Murugan. The third accused Kuppayee and the two juvenile accused also ran behind them.

On seeing the accused coming with knives in their hands, I got out of the way. My uncle who was chased by the accused fell down due to tripping on the steps. My uncle Murugan fell down on face downwards. The first accused Rathinam and the second accused Moorthy stabbed on his back repeatedly and simultaneously. My uncle rolled turning his face upwards. At that time a stab fell on his hand. I did not notice correctly who had stabbed. Both the accused had stabbed my uncle simultaneously on his chest, breast and the stomach.”

12. PW 3 was the trained nurse on duty. PW 4 was admitted as inpatient in the male surgical ward. PW 5 is the Sub-Inspector.

13. The trial court vide judgment dated 30-3-1990 acquitted the accused. The respondent State of Tamil Nadu filed an appeal against the said judgment of acquittal before the High Court of Madras. The High Court re-examined and re-evaluated the entire evidence on record and came to a definite conclusion that acquittal of the appellant is unsustainable, and because according to the trial court the material available on record established the guilt of the appellant, particularly when the appellant in a statement under Section 313 CrPC admitted his involvement in the occurrence which took place at 4.45 p.m on 18-5-1988 in the hospital. The High Court had observed that even according to the case of the appellant he caused those injuries in his self-defence. The appellant has stated before the High Court that he cannot be convicted solely on the basis of the stand taken by him when he was questioned under Section 313 of the Code of Criminal Procedure.

14. The High Court has placed reliance on the judgment of this Court in State Of U.P v. Lakhmi . (1998) 4 SCC 336. The relevant portion of the judgment which was relied on by the High Court reads as under:(f-337a)

“It cannot be said that statement of an accused recorded under Section 313 of the Code does not deserve any value or utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases the accused would offer some explanations to incriminating circumstances. In very rare instances the accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the court gets the advantage of knowing his version about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.”

Therefore, the statement of the appellant under Section 313 cannot altogether be ignored.

15. DW 1 clearly stated in his testimony that Accused 2 told him that he sustained injuries when he was involved in the incident at 4.45 p.m on 18-5-1988 in Government Hospital at Salem. The High Court on the basis of the evidence on record reached at the definite conclusion that the medical evidence clearly establishes that it is Accused 2 who caused a number of injuries on the deceased which proved fatal. In this view of the matter, according to the High Court, the prosecution has clearly established the involvement of Accused 2 with the overt act attributed against him vis-à-vis the deceased. According to the High Court, the trial court seriously erred in acquitting the appellant on the basis of overwhelming evidence on record.

16. According to the High Court, the appellant had exceeded his right of private defence, therefore, the appellant is liable to be convicted for an offence under Section 304 Part I IPC for exceeding the right of private defence. The High Court in this case while setting aside the trial court judgment convicted the appellant under Section 304 Part I IPC and sentenced him to seven years of rigorous imprisonment.

17. We have heard learned counsel for the parties at length and perused the judgments and depositions on record.

18. The deceased had received 20 incised injuries caused on various parts of the body in general and on vital parts of the body in particular. The deceased was killed mercilessly by inflicting twenty incised injuries and mostly on the vital parts of the body. Even if we accept the version of the High Court that the accused had the right of private defence, in the facts and circumstances of the case, but he had exceeded his right, so he was convicted under Section 304 Part I IPC.

19. On examination of the injuries on the accused it is clearly borne out that those injuries are very minor and superficial in nature whereas twenty incised injuries inflicted on the deceased were of very serious nature and character. The Sessions Court has gravely erred in acquitting the accused on the face of the testimony of the witnesses in the case.

20. We have to examine the evidence in proper perspective—why should ordinarily, PW 1, the mother of the deceased falsely implicate the accused and let off the real assailant? Similarly, why would PW 2, the nephew of the deceased save the real assailant and falsely name the accused? The High Court in the impugned judgment while reversing the judgment of the Sessions Court convicted the accused under Section 304 Part I IPC.

21. We have not examined whether in the facts and circumstances, the High Court was justified in converting the sentence from Section 302 IPC to Section 304 Part I IPC because there is no appeal by the State.

22. The appellant must be convicted at least under Section 304 Part I IPC. No interference is called for. The appeal being devoid of any merit is accordingly dismissed.