Govinda Mendn, J.
1. The appellant has been convicted by the second Additional Sessions Judge of Trivandrum, for the offence of murder punishable under Section 302, I. P. C. and has been sentenced to rigorous imprisonment for life. The case against him was that he stabbed to death Sukumara Kurup-at about 12 noon on 24-8-63.
2. The accused and the deceased are relations and the deceased was for some time staying with the father of the accused. Close to the accused's house there lived a harijan family including Pws. 4, 5 and 6 examined in the case. The accused it is stated was having illicit intimacy with one of the girls Pw. 4. About two years before the occurrence he gave up the relationship, married and had a child. After the accused ceased to have any connection with Pw. 4 deceased Sukumara Kurup became intimate with her. It is the prosecution case that because of this the accused and deceased were on inimical terms. The prosecution also suggested another motive. It is stated that the accused used obscene words against Pw. 5 Kamalakshi who mentioned about it to Pw. 4 and Pw. 4 complained to the brother Pw. 6, The witnesses would have it that a few days before the occurrence Pw. 6 questioned the accused about his misbehaviour when he was beaten by the accused.
3. The deceased had no house of his own and he used to give his earnings to Pw. 4 and he used to take food in her house. Pw. 10 is a teacher employed in the Government Primary School, Thottakkadu and at the relevant time deceased Sukumara Kurup was his servant attending to his cultivation work. On 24-8-63 early morning the deceased went to the house of Pw. 10 took his buffalos and the uzhavukol (stick) and went out for ploughing the field. After finishing the ploughing he took the cattle to the nearby canal (polakkalthodu) for washing them.
P. W. 1 is the younger brother of the deceasedwho was working under one Govinda Kurup. Onthat day he was grazing his cattle on the westernside of the canal. To the east of the canal isThottakkad market and to go to the market peoplehave to cross the canal. At about 12 noon theaccused was returning from the market. Comingalong the paddy field he got into the canal whichis on a lower level. Pw. 1 saw the accused proceeding towards the canal and soon after he heardhim asking the deceased ' and to which the deceased replied' '
Immediately thereafter he says when he looked he saw the accused inflicting a stab injury on the deceased and running away from the scene. Pws. 2 and 3 who were returning from the market were following the accused and a little after the accused stepped down into the water channel they saw the accused stabbing the deceased on his left-chest and the deceased falling down. Hearing the-alarm many persons gathered and one among them Pw. 8 lifted the injured and placed him on a rock a few yards away. Life was extinct and he had an injury on the chest. Pw. 9 who reached the place questioned Pw. 1 and he told him that the accused stabbed the deceased. Thereafter Pws. 1 and 9 went to the Kadakkavoor police station. Pw. 17 the head constable recorded the complaint Ex. P-1 from Pw. 1 and registered a case. Pw. 20 the Sub Inspector proceeded to the scene the same evening but he was not able to question the wit-nesses as it was late.
Next morning he held the inquest and took into custody an Uzhavukol (stick) found at the scene. Enquiries were made of the accused but he was not available. Suspecting that he would have gone to his mother's sister's house at Palode within the limits of Vithura police station the Circle Inspector sent a memo to Pw. 19 the Sub Inspector, Vithura. Pw. 19 arrested the accused on 28-8-63 from a field near the house of his another's sister. At that time the accused had a knife with him and it was taken into custody under Ex. P-4. After completing the investigation the accused was charge-sheeted.
4. When questioned on the evidence in the committing magistrate's Court the accused merely denied the occurrence but in the sessions Court he put forward a plea of private defence. He stated that on that day when he was returning from the shandy the deceased was lying-in-wait for him in the canal, that when they met he was beaten when he also beat in return, that both of them fell down into the canal, the deceased took out a knife to stab him, they grappled with each other and he extricated himself and escaped from the place. He stated that he had also sustained injuries and when he was running away there was swelling and wound on his face and blood was flowing from his mouth. He denied having any intimacy with Pw. 4 and stated that he had no cause for enmity against the deceased.
5. The evidence of Pw. 18 who conducted the autopsy shows that the deceased had sustained a vertical incised wound on the left side of anterior part of the chest 1' below the clavicle. On dissection this wound was seen extending through pleura, lung and pericardium into the left auricle of the heart between the second intercostal space. The lung and pericardium were cut. The doctor has given his opinion that the injury was a necessarily fatal injury and death would be instantaneous.
6. The eye-witnesses to the occurrence are Pws. 1 to 3. Evidence of motive is provided by Pws. 1 and 4 to 6. Pw. 1 has given evidence that the deceased started living in Pw. 4's house since two years and he has a child by her. He has stated that the accused was on intimate terms with her only two years before the occurrence. It is, therefore, difficult to believe the evidence of Pw. 4, that even after the deceased started having intimacy with her the accused tried to approach her and that she was not amenable. Pw. 1 has also given evidence that the deceased and the accused used to meet on several occasions during these two years. So why the accused should have waited all this time to attack the deceased passes one's comprehension. Probably realising this difficulty the prosecution sought to prove an additional motive of the accused beating Pw. 6 a few days before the date of occurrence. If that be so, Pw. 6 would certainly have told about it to the deceased and he would have been the person who would have tried to attack the accused and would well have been the aggressor.
7. The accused has admitted an encounter and his plea is practically one of self-defence. In cases of this nature the origin of the trouble is of paramount importance to find out as to who was the aggressor. Here that is shrouded in mystery. The water channel is on a lower level and there is a sort of a dip and normally one cannot expect persons in the field to see what actually takes place inside the thodu. Pw. 1 sees the accused getting down into the thodu and then hear the accused asking the deceased whether he cannot keep his Kurathi-wife in her proper place and the accused retorting 'what is it that you want'. Immediately after that he says he looked from the place where he was standing and saw the accused inflicting the stab injury on the deceased. It is extremely doubtful whether from the place where he was standing he could have seen anything which had taken place in the canal down below.
Likewise Pw. 2 was following the accused and in-between him and the deceased a woman was going. Pw. 2 did not hear the talk between the accused and the deceased, but wants the Court to believe that at the psychological moment when the accused administered the fatal stab he reached there in time to witness the stabbing. He sees the accused getting down into the canal and the next thing that he saw was the accused stabbing the deceased and he frankly admitted that he does not know whether anything had transpired between the time the accused got into the canal and before he inflicted the fatal injury. According to him on receiving the stab injury the deceased fell with his face upwards although all the other witnesses would have it that he fell with his face down into the water. After the incident he makes a quick round-about turn and disappears from the place to reappear again only as a witness. The story looks extremely artificial.
P. W. 3 is the other witness. He also reached the place just in time to see the stabbing. The first thing that he saw was the deceased standing naked without any wearing apparel and the accused stabbing him. What happened to the cloth worn by the deceased is not stated. If he saw the deceased without any clothes the probability is that there must have1 been some earlier incident in which the deceased must have dropped down his clothes. To both these witnesses suggestion has been made that to return to their house from the market they need not come along the canal at all, Pw. 3's name is also not mentioned in the first information statement.
8. To appreciate whether these witnesses would have really witnessed the incident we have to go to the evidence of Pw. 8. According to Pw. 8 when he was in his plantation he heard a hubbub and saw people running towards the thodu and he also rushed up to the place. When he reached there about thirty persons had gathered there and they were enquiring as to who the person was, who was lying in the thodu and they wanted him to turn the body and it was when he turned the body that they were able to find out that it was the deceased. He has categorically stated that not one person present there mentioned as to who the fallen man was.
According to Pw. 1 he was present there when people came up and one of them turned the dead body. If realty he had witnessed the occurrence and found the accused stabbing the deceased one would have normally expected him to tell the people that it was the deceased who was lying injured and that it was the accused who had in-flicted the injury. When questioned by the defence counsel whether what he had reported to his relations was not that the deceased was lying there with injuries Pw. 1 answered in the affirmative. It is, therefore, extremely doubtful whether any of these witnesses were actually present and witnessed the actual occurrence and whether they were giving a true picture of what had happened.
9. There is another significant circumstance. When Pw. 1 was questioned whether the accused bad not sustained any injuries and whether the accused's lips were not swollen and injured, Pw. 1 admitted that they were injured. If the prosecution evidence is true there is no explanation for the injuries sustained by the accused. This circumstance to a very great extent probabilises the defence case that it was the deceased who first used viol-ence against the accused and that the accused must have used his knife in self defence. Pw. 1 has given evidence that when he rushed up to the thodu he found the deceased lying in the water and near him was the stick M.O. 4. Learned State Prosecutor pointed out that in the Inquest report it has been mentioned that the stick was lying on the bank of the river where it had been placed by the deceased, but nobody has given such evidence and the mere recitals in the inquest report cannot by itself be regarded as substantive evidence. Whether that particular stick M.O. 4 bad been used or not there can be no doubt that violence must have been used against the accused before he used his knife.
10. It is in this context that the non-examination of a material witness Sumathi becomes very important. In Ex. P-1 itself Pw. 1 has stated that when he ran up to the scene he had seen a woman and a child getting up from the thodu and proceeding towards the west. That woman has been identified as. Sumathi. She was questioned by the police and cited as an eye witness in the charge sheet and was present even in the sessions Court. The boy was said to be deaf and dumb. Pw. 2 has also stated that he had seen a woman going ahead of him and behind the accused. So she would have been the best witness who could have witnessed what actually transpired between the deceased and the accused in the thodu prior to the accused stabbing the deceased. Some how, for reasons best known to themselves, the prosecution did not examine the witness.
The Inspector of police has come forward with a curious explanation in the course of the sessions trial that Sumathi came to him and told him that she should not be examined since the accused's father who is her uncle had asked her not to give evidence and therefore she was given up. What Sumathi is alleged to have told the Inspector is not admissible in evidence. It is true that the prosecution has got a right to choose their own witnesses but in a capital case it is the duty of the State to place before the Court the evidence of all material witnesses irrespective of the question whether that evidence if led would help the accused, and go against the prosecution.
11. It is an accepted rule as stated by the Judicial Committee in Stephen Seneviratne v. The King, AIR 1936 PC 289 that witnesses essential to the unfolding of the narrative on which the prosecution is based must of course be called by the prosecution. The test whether a witness is material for the present purpose js not whether he would have given evidence in support of the defence. The test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether the witness is essential or not would depend on whether the witness could, speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relies in proof of their case.
In this case it cannot be seriously doubted that this woman who is said to have been inside the tholu at the time of the occurrence would have been the best witness to enlighten the Court as to what actually preceded the infliction of the stab injury by the accused and tell the Court whether the deceased was the aggressor and whether the accused had the right of private defence. If such a material witness is kept hack from the I Court it would certainly give rise to adverse in-ference against the prosecution case and cast serious reflection on the fairness of the trial.
12. Reference may in this connection be made to the decision in Habeeb Mohammed v. State of Hyderabad, AIR 1954 SC 51 where it is stated that if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge.
13. On a careful consideration of the facts and circumstances of this case we have every reason to believe that the withholding of this witness was influenced by an oblique motive and that has seriously prejudiced the accused.
14. The prosecution having failed to place the full facts before the Court, the Court is left in doubt as to what actually had transpired and whether the defence of the accused is not probable and true. The fact that the accused had sustained some injuries, as spoken to by Pw. 1, is a strong circumstance to show that the deceased must have been the aggressor and that the witnesses have not placed the whole truth before the Court. In view of all these infirmities we have to hold that the prosecution has failed to prove their case beyond reasonable doubt.
15. In the result the appeal is allowed. The conviction and sentence passed on the appellant are set aside and he is ordered to be acquitted. He will be set at liberty forthwith, if not wanted in any other case.