Kunhi Raman, C.J.
1. This appeal is brought on behalf of the State from the order of acquittal made by the learned Sessions Judge of Quilon in Sessions Case No. 14/50. The accused was charged with murder under Section 301 of the Travancore Penal Code. The learned trial Judge on hearing the evidence reached the conclusion that death was caused in the lawful exercise of the right of private defence and that consequently the accused has not committed the offence of murder. He has passed an order of acquittal.
2. The facts will have to be stated briefly in order to appreciate the contentions of the parties. The accused was not on good terms with the deceased. About 19 days prior to the date of occurrence, that is to say on 26.7.1124, while they were engaged in playing cards in the house of a mutual friend, they quarrelled. This was followed by the deceased taking a plank of wood that was nearby and hitting the accused severely on the right side of his face as a result of which the accused ' seems to have fainted. The date of occurrence was 17.8.1124, as already stated 20 days after the first quarrel between the parties. At about 9 P.M. on 17-8-1124, the deceased was going from his own house to the house of his wife. He had a lighted cadjan torch in his hand. After travelling a short distance from house, while he was walking along a paddy field the accused accosted him. There were no eyewitnesses to speak about the sequence of events that followed. There is a dying declaration recorded in the Mavelikara Hospital where the deceased was removed soon after he had sustained the fatal injury and there is also a confession of the accused recorded by a competent Magistrate about three hours after he was arrested on 22.8.1124. According to both these versions, the accused used a sharp instrument, which has been produced as M.O. VI at the trial and with that sharp instrument he dealt a blow in the region of the abdomen of the deceased which pierced the abdominal cavity and a part of the intestines protruded through that wound. In the course of the trial, the Police seem to have tried to improve the case by introducing another weapon which has been marked as M.O. III. This is a sharp dagger. M.O. VI can be equally effective in causing the death of the victim.
3. In the confession made by the accused he stated that when he was face to face with the deceased at the scene of occurrence, the deceased hit him with the lighted torch on the right side of his chest. It was really a thrust with the lighted torch and the injury cannot be described as light. The doctor, Pw. 11 who examined the body of the accused has spoken to the effect that it was not merely a light burn but according to the language used by him it can be described as a burn of the second degree which means it is more than skin-deep. Then, according to the accused he used M.O. VI for preventing further attacks by the deceased. In the dying declaration the deceased does not refer to the attack made by him with this lighted torch. He only refers to the stab injury inflicted on his body by the accused. There cannot be any doubt that at the time of the encounter, the lighted torch was used by the deceased. This is evident from the injury that was noticed on the body of the accused and from the evidence of the doctor Pw. 11.
4. In the absence of eye-witnesses, one has got to consider the probabilities of the case. There is only circumstantial evidence to indicate the probabilities. When the deceased found the accused in front of him on what was evidently a dark night, he could not have anticipated any friendly overture on the part of the accused in view of the fact that about 19 days previously he had dealt a severe blow with a plank of wood on the side of the face of the accused. Therefore it is consistent with the probabilities of the case that the deceased used his torch first. If this incident had happened, then there is justification for the injury inflicted by the accused on the body of the deceased. The lighted torch was used on the chest of the accused. If the deceased conceived the idea of causing more serious injuries to the accused he could have thrust it next on the face of the accused. That was an apprehension that the accused might have reasonably had. If the deceased had used the torch on the face of the accused that might have had the effect of putting out the sight of at least pone of the eyes. Such an injury would definitely come within the definition of 'grievous hurt' in Section 20 of the Travancore Penal Code. When there is reasonable apprehension of grievous hurt, the person labouring under the apprehension would be justified in voluntarily causing death. Therefore, if it is regarded as a case in which the accused voluntarily caused the death of the victim by stabbing him with M.O. VI there was sufficient justification for such an act.
5. There are certain parts of the judgment of the learned trial Judge which cannot be supported. For example in dealing with the nature of a confession and in dealing with the nature of a dying declaration the learned Judge has committed serious mistakes. He has recorded his opinion that a dying declaration cannot be acted upon unless it is exhaustive and discloses all the surrounding circumstances. This is inconsistent with the provisions of Section 32 of the Indian Evidence Act which at the relevant period was applicable in the Travancore Stale. All that that section requires is that there must be a statement made by a person about the cause of his death. Merely because in the dying declaration there is no reference made to the use of the torch in causing an injury on the body of the accused, it cannot be said that the dying declaration should be ruled out entirely in dealing with the case.
Similarly, with regard to the confession, the learned Judge has made a mistake in imagining that the words were put into the mouth of the accused when he made the confession. We are not able to accept this view. The evidence has been read out to us. There is nothing to indicate that there was any influence exercised over the accused before he made the confession. No doubt, since the confession was retracted the evidentiary value to be attached to the confession is not appreciable in the absence of corroboration. Apart from that the confession cannot be attacked as it has been attacked in the judgment of the learned trial Judge.
6. Without accepting the view expressed by the learned Judge on these points, we are satisfied that the conclusion reached by him that the attack made by the accused was in the legitimate exercise of the right of private defence is correct. The order of acquittal which has followed this appreciation of the evidence does not, therefore, call for interference by this Court. The appeal filed by the State must be dismissed.