1. The appellants, eight in number, were put on trial before the Sessions Judge of Tellicherry for the offences of rioting armed with deadly weapons, murder and voluntarily causing grievous hurt with dangerous weapons. The Judge acquitted them all holding that no reliable or dependable version of the occurrence had been presented to the Court. In appeal by the State, the High Court held them all guilty of the offences of rioting with deadly weapons and also convicted them under the second part of Section 304 I.P.C. read with Section 149 for causing the death of one Krishnan Nair. They were also convicted under Section 326 read with Section 149 I. P. C. for causing grievous hurt to Gopalan who figured as P.W. 2 at the trial. There was also other sentences under different sections of the Penal Code on the accused separately. The appellants have come to this court by special leave.
2. As the two courts have taken different views of the evidence adduced, it is necessary to note the facts about which there can be no dispute and to consider the evidence for the prosecution to find out whether the accused or any of them can be held guilty of the offences with which they were charged. The trouble arose over a plot of garden land known as Brumakulam in village Kodom having an area of about 2 1/2 acres, which originally belonged to Nair terwad of that village. As a result of a partition which took place in 1957, one Balkrtshnan Nair became the sole owner of the plot and he gave a lease of it to the fourth appellant accused in 1960. Thereafter he executed a deed of sale in respect of the property in favourof the said accused while he was still in possession under the lease. Balakrishnan Nair was an absentee land owner and the deceased, another member of the terwad had been in the enjoyment of the income from this property for some time. He did not like the idea of the fourth appellant purchasing it. At this instance, some Harijans erected huts on the property and squatted therein. About the 24th October, 1965, these were demolished by the first and the fourth accused. Krishnan Nair thereupon asked P. W. 8 to erect one more hut which was done on October 29, 1965. The fourth accused referred to the fifth accused, the Secretary of the Left Communist Party in that area who seemed to be man of some influence, about the trouble created by Krishnan Nair and his men. On the morning of November 2, 1965, accused No. 5 went to Erumakulam property taking with him the first accused, the local secretary of the party and the sixth accused, a member of the area committee of his party. Whatever be the object of the gathering, there can be no doubt that all the eight accused-appellants were at Erumakulam property when the incident took place. Krishnan Nair had paid a visit to the property at about 9.30 or 10 a.m. along with prosecution witnesses 1 and 2 apparently for the purpose of seeing whether the hut erected on 29th October was still there. They paid a second visit to the property at about 11 a. m. when the trouble took place. That a fight of a fairly serious nature took place on this occasion admits of no doubt. Krishnan Nair lost his life as a result of the beating given to him with sticks. The postmortem showed no less then 15 injuries on various parts of his body, including his head and forehead, two being grievous and dangerous. The cause of his death was given by the doctor as heart failure due to shock caused by multiple injuries, specially Nos. 5 and 7. The other injuries were simple in nature. P. W. 1 was not injured at all and it was his version that he kept himself at some distance from the trouble spot. P. W. 2 suffered no less than 16 injuries but all except one were simple. Two of the injuries could have been caused by a sharp object or a sharp-pointed object. Injury No. 8 could have been caused by a rub with a rough object or surface; all others could have been caused by a forcible contact with a blunt object. On the side of the accused no less than six persons suffered injuries. The first accused had one cut wound on his left ear which practically severed it from the head. The doctor described the wound as a grievous one caused by a sharp object. The second accused had sustained a contusion with an abrasion on the back of the left shoulder which could be caused by beating with a stick. The fourth accused had sustained two contusions: the fifth accused bad nine injuries of which six could be caused by beating and two of them showed rubbing with a rough surface; three other injuries could be caused by a sharp-pointed object like a knife. The sixth accused had five injuries of which two could be caused by beating with a stick and three by rubbing against a rough surface. The eight accused had two injuries which could be caused by a blunt object. Immediately after the occurrence the injured accused had gone to a hospital and received attention from a doctor. It is not quite clear whether on his secondvisit to the property Krishnan Nair had armed himself with a stick but Gopalan P. W. 2 had a pen knife with him which evidently was responsible for the loss of the ear of the first accused and some injuries inflicted on some of the other accused.
3. The injuries tell their own tale. The irresistible inference therefrom is that although Krishnan Nair had only two followers with him one of whom kept himself at a safe distance from the area of the affray there was a fight and sticks were used by both sides. There was no evidence that anybody had carried a stick to Erumakulam but these were not wanting on the spot as the poles with which the huts had been constructed were lying in scattered about the plot and could be effectively used as weapons. Gopalan could have used his knife so as to cause a severance of one of the ears of the first accused only if he could get sufficiently close to him. If the first accused had a stick in his hand which he meant to used against Nair and Gopalan right from the beginning, it is difficult to imagine how Gopalan could have get so near him as to be able to cut off his ear with a knife which had only a 4' long blade. Again it is clear that Krishnan Nair by himself could not have inflicted injuries with a stick on five of the accused. Sticks must therefore have been plied not only by the accused's but also by Krishnan Nair and Gopatan fairly free. Some if not all the accused must have taken part in beating up Krishnan Nair and Gopalan.
4. For the prosecution only five witnesses P.W. 1 to P. W. 5 were examined to establish the course of the fight and the result thereof. According to P. W. 2, he along with P. W. 1 and the deceased had gone to Erumakulam on November 2, 1965 for the first time between 9.30 and 10 a.m. He did not say whether a hut stock there at the time or not. P.Ws. 3's version was that the hut was dismantled by the accused at about 10 a.m. It was the evidence of both prosecution and witnesses 1 and 2 that Krishnan Nair and Gopalan were going to a village named Dedakam for bringing paddy seeds for Krishnan Nair and passed Erumkulam on their way. The evidence of an advocate examined by the High Court as a court witness established that Erumakulam did not lie on the way to Dedakam from the house of the deceased and he must therefore have paid a second visit at an interval of an hour from his first visit with some definite object. Neither P.W. nor P.W. 2 made any statement to the effect that there was any quarrel or altercation preceding the fight. According to P. W. 1 the deceased got into the property and was immediately got hold of by accused No. 5 and both fell down. The latter got up and started to beat the deceased alongwith accused 1, 2 and 4 with the sticks which were there. Gopalan intervened and warded off the blows. He also waved his knife. All the accused then beat them with sticks. He did not know what happened to Gopalan's knife but he saw the latter beating the accused with sticks. Krishnan Nair got up to lay himself down on the adjoining paddy field. Accused 1, 4 and 5 moved over to the field and dealt more blows to him with sticks. Thereafter all the accused ran away. According to P.W. 2 both he and the deceased got into the property whereupon accused No. 5 grappled with the deceased and both fell down. Accused 5 got up but when Krishnan Nair tried to do so blows with sticks were rained on him. Theblows were directed mainly on his head which was broken and blood was coming out. Witness intervened whereupon four of the accused started to beat him with sticks all over his body. He took out his pen knife and waved it against the accused and must have struck them. Accused 6 gave him a blow on his hand which dislodged the knife therefrom. He then snatched a stick from the said accused and started to bebt them all. AH the eight accused beat him and he fell down unconscious. When he regained consciousness he saw Krishnan Nair lying in the paddy field. He went over to Krishnan Nair and lost consciousness once more. P.W. 3's version was that some time after the dismantling of the hut at about 10 a.m. she saw the deceased and P.W.s. 1 and 2 following him. They got into the Vayyal and from there when Krishnan Nair climbed the grants fences accused 5 got hold of him and both rolled down. Accused 5 got up and as Krishnan Nair was trying to rise he was beaten by two or three of the other accused. She only new accused 5 and not the others. Gopalan intervened whereupon he too was beaten. Krishnan Nair stood up and moved towards the field where he fell down. Accused 1, 4 and 5 beat him there with sticks. The version of P.W. 4 and P.W. 5 was practically on the same lines. Only P.W. 4 had something to say about Gopalan using a stick. Not one of the witnesses, P.Ws. 3, 4 and 5 said anything about any quarrel having taken place preliminary to the fight.
5. Neither the Sessions Judge nor the Judges of the High Court felt disposed to place much reliance on the evidence of P.Ws. 1and 2 inasmuch as they were day labourers working for the deceased and as such interested witnesses. The Sessions Judge found himself unable to rely on the evidence of P.Ws. 3 and 4 and 5 also. He rejected the testimony of P.W, 3 on the ground that she admitted not having known any of the accused except accused No. 5 before the date of the incident and gave evidence to the effect that she was not quite sure who were the persons who had joined in beating Krishnan Nair. She had however stated before the police that all the eight accused had combined in giving a beating to the deceased. The Sessions Judge remarked that this was definitely against the prosecution case which was to the effect that the beating to the deceased had been given at first by accused 1, 2, 3 & 5 in Erumakulam and later in the paddy field by accused 1, 4 and 5. He also found himself unable to place any reliance on the testimony of P.Ws. 4 and 5 who were mother and daughter living at a distance of about 50 yards from the Erumakulam property mainly because their evidence as given before the police contradicted that given at the Sessions trial. According to the High Court, P.Ws. 3,4 and 5 'were apparently uninterested witnesses and there was nothing in the evidence to show that these witnesses are likely to falsely implicate the accused.' The High Court found no reason not to accept their testimony which fully supported the version of the occurrence as deposed to by P.Ws. 1 and 2.
6. In our view the mere fact that no connection was established between them and Krishnan Nair is not by itself sufficient on the facts of the case to hold that they were uninterested or independent witnesses, Reading the evidence given by them in cross-examination-in-chief the impression created in our minds is that they were all tutored to give one and the some version of the sequence of events in almost identical words. According to all of them, the deceased climbed the Kayyal and accused No. 5 who was standing there caught hold of and grappled with him and they both fell down. The fifth accused stood up first and beat the deceased with sticks and then all of them started beating the deceased. P.W. 5 did not say anything about Krishnan Nair or Gopalan using any stick or weapon. P.W. 4 said that Gopalan was waving his hand and he beat the accused with a stick. P.W.3. as already noted, had stated that she did not know which of the accused took part in the beating and did not say anything about Krishnan Nair or Gopalan using sticks.
7. On the evidence there can be little doubt that Krishnan Nair had climbed over the granite fence into Erumakulam property in the possession of the forth accused with intent to insult or annoy the fourth accused and the men who were trying to prevent interference at his hands He had no excuse for going there. He had incited the Harijans to squat on the property and erect huts thereon when he knew that they had no manner of right to be there. He had done it more than once and the object of his second visit to Erumakulam on November 2 and trespassing into the property could only be to intimidate or coerce the fourth accused and his helpers gathered there into giving up possession of the property and let him have his own way with regard thereto. As no one spoke about any alteration between the parties to start with, the only inference which follows is that either they were all suppressing the truth or Krishnan Nair's attitude while committing the trespass was one of the violence to the accused which was reciprocated by the latter. The accused could not have known that Krishnan Nair would be coming to Erumakulam on that day and hence there was no occasion for them to gather there for the purpose of using violence on him or any one else. In our view, the attack must have been launched by Krishnan Nair and Gopalan for otherwise the latter could not have got sufficiently near accused No. 1 to use knife on his ear in the way he did. Krishnan Nair and Gopalan were undoubtedly guilty of committing criminal trespass on the property giving rise to the right of private of defence on the part of the accused. The accused would be justified in attempting to oust Gopalan and Krishnan Nair from the property, if need be with force, Gopalan and Krishnan Nair must have used force on the party of the accused almost simultaneously with their entry into the property. We find it difficult to accept that Krishnan Nair and Gopalan would have climbed over the stone fence and walked into the property if they had found the accused armed with sticks since they were in hopeless minority compared to the accused who had no less than eight persons on their side. On the evidence it would not be unsafe to hold that Krishnan Nair and Gopalan were not only guilty of criminal trespass but they also wanted to and did assault the party of the accused. The accused had undoubtedly the right to exercise force in their private defence and on the material before the court it is not possible to hold that in giving the blows to Krishnan Nairand Gopalan they had exceeded such right in view of fact that six of them suffered injuries. The beating must have been indiscriminate and resorted to with the help of the sticks which were lying about. The right of private defence of the accused would certainly not extend to their going over to the paddy field and continue beating Krishnan Nair and Gopalan there. If we felt disposed to accept the evidence of the prosecution witnesses we might have taken a different view but in oor opinion the same is not acceptable and we cannot hold that the accused had exceeded their right of private defence.
In the result, we find overselves unable to hold that the accused were members of an unlawful assembly or that they were guilty of rioting as held by the High Court. The appeal is there fore allowed and the appellants are directed to be set at liberty.