Anna Chandy, J.
1. This appeal is against the judgment in Sessions Case No. 22 of 1959 of the Sessions Court of Quilon, The two accused were charged under Section 302 read with Section 34, I. P. C. for having caused the death of one Thomas George by stabbing and heating him in furtherance of their common intention to murder him. The 2nd accused was also charged under Section 324, I. P. C. for having caused hurt to Pw. 1 by beating him with a stick.
The charge under Section 34 being negatived, the 1st accused was convicted under Section 302 I. P. C. and sentenced to the extreme penalty, while the 2nd accused was convicted under Section 324 for causing hurt to Thomas George and sentenced to undergo rigorous imprisonment for one year, In addition, th 2nd accused was convicted under Section 324 ande sentenced to undergo rigorous imprisonment for one month for causing hurt to Pw. 1. The appeal is by the 1st accused and the reference is by the Sessions Judge in respect of the death sentence awarded to the 1st accused.
2. The 2nd accused and the deceased Thomas George arc brothers, and the 1st accused is the son of the 2nd accused. By a will executed by their father, some 7 years back, the 2nd accused and the deceased were given 31 cents and 29 cents of paddy land respectively. Subsequently, the will was revoked and 45 cents was given to the deceased and 15 cents to the 2nd accused. This was done at the instance of the deceased and it caused ill-feelings between the brothers.
Towards the end of January 1959, the deceased and the 2nd accused were harvesting their paddy fields (not the subject-matter of the will). The plots marked 'F' in Ext. P. 12 plan belong to the 2nd accused and the plots marked 'H' to the south of plots 'F' belong to the deceased'. The plots marked 'O' belong to one Valuparambil Koshi. The deceased's threshing floor was in Koshy's paddy field and he had also put up a temporary shed there.
On 31-1-1959 at about 10 A.M., the first accused, who was taking food to his father, passed by the deceased's shed. At that time the deceased was washing his mouth and hands after finishing his meals. As he spat out, some of it fell on accused 1 and that led to exchange of abuse between the uncle and the nephew. The prosecution case is that the 1st accused went to his father's field and came back with him to the place where the deceased was, accused 1 picking up a bamboo and the other a piece of wood.
Accused I beat the deceased and the 2nd accused followed suit. The deceased stumbled and fell down. As he was getting up, accused 1 stabbed him on his hack with a knife. The deceased managed to regain his feet and he ran to the public road to the north of the scene of incident. As the accused were returning to their plot, Pw. 1 an employee of the deceased, who had witnessed the incident, remarked 'Look at them coming after killing their own brother.'
This enraged accused 2 who picked up a chopper from the paddy field and hit Pw. 1 with the blunt edge of it. Thomas George was removed to the Pathanamthitta dispensary by Pw. 1 and others, but he succumbed to the injury on the way, Pw. I proceeded to the police station and gave the First Information Statement. The accused surrendered before the District Magistrate on 9-2-1959 and produced M. O. 4, chopper, and M. O. 9, knife.
The 1st accused stated that he was attacked by the deceased, and his statement was recorded by Pw. 14. The statement is Ext. P. 16. A mahazar on his person was prepared which is Ext. P. 17. A case was registered on the basis of the statement given by the accused, but it was found to be false and struck off the files. The murder case was investigated by the Circle Inspector of Police, Pw. 15, and the charge-sheet was laid before the Sub-Magistrate, Pathanamthitta, on 19-2-1959.
3. The 1st accused pleaded the right of private defence On the basis of Ext. P. 16 statement,and the 2nd accused adopted the same plea. The version given by the 1st accused before the court is as follows : He was passing by his uncle's shed carrying meals to his father when the deceased throw the leaf which he had used for taking food, at him. He remonstrated and his uncle spat on him. Then he abused his uncle who picked up a stick and heat him on his shoulder, head and hands.
He cried out and retreated towards the west. The deceased pursued him. While retreating, he picked up a hamboo stick. At that time George took up a chopper and aimed a blow at him. He parried the blow with the stick and the chopper fell down. When the deceased tried to retrieve it, he beat him on the head and other parts of the body with the stick. Hearing his cries, his father came running and appealed to his brother not to kill his son.
Then George attempted to cut accused 2, with the chopper, who caught hold of the chopper. There was a scuffle between the brothers and both of them fell down. They got up and George aimed another cut which was parried by accused 2 with his hands The tip of the chopper hit accused 2 on is neck and caused an injury. When George attempted to cut him again, fearing that his father would be killed, accused drew out his knife and stabbed his uncle. His uncle then dropped the chopper and ran away from the scene.
4. It is proved that Thomas George died as a result of the stab wound sustained by him. Ext. P. 6 is the post-mortem certificate issued by Pw. 3 who conducted the autopsy. It notes one incised injury and one lacerated wound besides some contusions and abrasions. The incised wound was a transverse, penetrating one, 4' x 1' x 4' on the back of the chest, just below the 3rd rib cutting the underlying structures and entering the left pleura and the lung.
According to the doctor, it was necessarily a fatal injury and the other injuries were not fatal either individually or collectively. Ext. P. 7 is the wound certificate issued by Pw. 8 after examining Pw. 1. It describes a contusion 2' x 1/2' on the left shoulder which could be caused by heating with the blunt edge of a chopper.
5. The circumstances under which the incident occurred constitute the most important point for determination in this case. It has to be decided whether the accused acted, in the exercise of their right of private defence, and if so, whether they were within their rights. The actual witnesses to the incident are Pws. 1, 2, 10, 12 and 13. Of these, the learned Sessions Judge has discarded the evidence of Pws. 12 and 13 and accepted that of Pws. 1, 2 and 10.
While supporting the prosecution case for the most part in chief-examination, Pws. 1, 2 and 10 have, in their cross-examination, made significant admissions which go to support the plea of private defence put forward by the accused. The learned Sessions Judge has accepted their evidence to the extent it supports the prosecution case and discarded their admissions in cross-examination on the ground that the witnesses were won over by the defence and that those statements were made by them only to support the defence plea.
It is strenuously urged on behalf of the defence that the course adopted by the learned Sessions Judge is not justifiable and has caused prejudice to the accused. It is contended that, it the Judge was of the view that the witnesses were believableand their testimony could be acted upon, their evidence should have been taken and appreciated as a whole giving due weight to their evidence in chief-examination and the admissions they made under the strain of cross-examination.
On the other hand, if the learned Judge was of the view that the witnesses have been won over and that it is not safe to act upon their testimony, then their evidence should have been rejected in toto. There seems to be considerable force in this objection. It is neither proper nor safe to adopt the peculiar procedure followed by the learned Sessions Judge, especially in a case where the accused admits the incident, but puts forward the plea of private defence.
In such a case it is vitally important to elucidate the exact circumstances under which the accused acted, in the particular manner he did. The point in issue is not whether the incident actually occurred but whether the circumstances were such that the accused could have apprehended danger to himself. It is well accepted that where the defence has not brought forward any evidence of its own, the case of private defence can still be spelled out from the circumstances appearing in the prosecution evidence.
In such a case, the court must, all the more, be certain about the unbiased nature and reliability of the prosecution witnesses. For, any suppression of a favourable circumstance or any addition or embellishment made at the instance of the prosecution would be highly prejudicial to the accused. Pws. 1, 2 and 10 in their chief-examination fully support the prosecution case, and the admissions they made in cross-examination helped the defence to establish their case of private defence.
In chief-examination they swear that the incident took place and in cross-examination they admit the existence of those circumstances, which according to the first accused caused him apprehension of death or grievous hurt. In cross-examination, they did not go back on anything they had sworn to in chief-examination. In such a case, it would he difficult to determine which part of their evidence is true and which false and there would be no justification in accepting only those portions which support the prosecution while discarding anything that supports the defence.
6. Now, we shall deal with the evidence of these witnesses. All three of them were workmen engaged by the deceased. Pw. 1 stated in cross-examination that he was in the adjacent compound about to take his meals when he heard the quarrel. He went to the place and saw the deceased beating the 1st accused with a stick. The 1st accused was retreating backwards into the plot and the deceased was pursuing him,
He admitted that it was on seeing this that the 2nd accused, who was then in his own field, came running. The witness was declared hostile and cross-examinee' by the prosecutor. After discussing his evidence, the learned Judge observes that he has no hesitation in saying that the witness was won over by the defence and has gone hack upon bis First Information statement, only with a view to help the accused to build up a case of private defence.
The first information statement is not substantive evidence and could not be preferred to the evidence given by the witness in court. The witness was an employee of the deceased, and had himself sustained injuries at the hands of accused 2. In the circumstances, it is not reasonable to presume that he was purposely siding with the defence, when he made the admissions in cross-examination. Pw. 2 admitted in cross-examination that it was on seeing his son being beaten by the deceased that accused 2 ran up to the place.
Then the deceased took up a chopper and aimed a cut against the 2nd accused who, trying to avoid the cut, fell down on the ground. The witness also admitted that it was only when the deceased got the stab-wound that he dropped thechopper and ran away from the place. The admissions were considered adverse to the prosecution and the witness was cross-examined by the prosecutor. The witness was also an employee of the deceased and there is no particular reason why he should side with the accused.
On the other hand, it was brought out in cross-examination of Pws. 1, 2 and 10 that they were taken over to Edamon where the deceased's father-in-law was residing and it was from there that they came to court to give evidence. Pw. 10, in his cross-examination, admitted that the deceased started the quarrel by beating the 1st accused with a stick and that, while accused 1 was retreating, he was pursued by the deceased. On hearing the cries of the 1st accused, the 2nd accused came running from the field on the west, asking the deceased why he was beating his son. Then the deceased picked up a chopper from the field and aimed a cut at accused 2.
It was at that juncture that the 1st accused picked up a bamboo stick from the field and hit the deceased on his head with it. The deceased fell down but got up immediately and aimed another cut at the 2nd accused. It was then that tho 1st accused stabbed the deceased from behind. This witness was also declared hostile and cross-examined by the prosecutor.
After narrating the evidence of Pws. 2 and 10, the lower court has come to the conclusion that those witnesses had deliberately deviated from the case spoken to by them in chief-examination only to probabilise the defence version. It may be noted in this connection that, to a certain extent, the admissions made by these witnesses in cross-examination before the Sessions Court have been brought out in their cross-examination before the committing court also.
Further, they showed an inclination to improve upon their case-diary statements in some instances, and had to be confronted by the defence with thosestatements. The learned Judge has found that they were won over by the defence. If the witness could be so easily won over by the defence, it is equally probable that the prosecution may have prevailed upon them to give a coloured version in chief-examination, shutting out all possibility of a plea of private defence.
7. It may also be mentioned in this connection that the plea of private defence put forward by the accused to a certain extent gains strength from some of the circumstances disclosed in evidence. The quarrel started while the 1st accused passed by the shed of the deceased on his way to his father's shed. The incident itself took place in the adjoining field to the west, some distance away from the shed of the deceased.
This probabilises the 1st accused's case that he was pursued by the deceased. It is also but natural that the 2nd accused who was in his shed should run up to the scene on seeing his son being beaten. The chopper, M. O. 4, admittedly belonged to thedeceased and was kept in his shed, and that chopper was found at the scene of incident and recovered from there by the police. Pw, 1, as well as Pw. 14, the Sub-Inspector of Police, admitted this fact.
When Pw. 1 was asked whether the 1st accused wrested the chopper from the deceased, though he did not give a positive answer, he stated that it might have been so. Again, the defence case, that the 1st accused was beaten with a stick by the deceased, gains strength from Ext. P. 17, the mahazar, prepared by the police regarding the injuries on his body and Ext. D14, the wound certificate issued by Dw. 1, the Medical Officer, District Hospital, Quilon, who examined him at the instance of the District Magistrate before whom he surrendered.
Est. P. 17 notes the existence of scars of three recently healed injuries. Ext, D14 notes the following injuries :
1. Stripe mark of 1 1/2' in length, 1/4' in breadth, with a scar of 1/4 in diameter in the middle of the back of left fore-arm.
2. Scar of 3/4' in diameter on the summit of right shoulder.
3. Another scar of 1/2' in diameter, 1/2' external to (2).
Dw. 1, who issued Ext. D14, gives evidence that the accused had stated before him that the injuries were caused by being beaten with a stick on 31-1-1959 and he has certified that they might have been caused as alleged. It was suggested to him in cross-examination that the scars were old, but the witness clearly stated that it is easy to distinguish a recently healed scar from an old scar especially in the case of scars left after contusions and abrasions. The 2nd accused had a scar on the neck which was noted in court and there is also the admission made by Pw. 10 that it was caused while the deceased was wielding M.O. 4 chopper. The case based on accused 1's complaint was registered after the police had already questioned the witnesses during the investigation of this case. It is seen from the evidence of Pw. 14 and Pw. 15 that there was no separate investigation of the accused's case, and the witnesses were not questioned in the light of the case of private defence put forward by the 1st accused. Ext. P--19, the report, on the strength of which tho accused's complaint was struck off the file also does not show that the witnesses were questioned afresh. Thus, it has to be found that if the evidence of the eyewitnesses is to be accepted, the plea of private defence put forward by the accused has only to be upheld.
8. The further question for consideration is whether the 1st accused was within his right of private defence when he inflicted the stab on the deceased. It is seen that the deceased started the quarrel and was in the aggressive. He pursued the 1st accused who was retreating to his shed and had beaten him. It has also been brought out that the deceased aimed a cut at accused 2. Thus there was certainly room for reasonable apprehension that the deceased would use the chopper either against his father or against him. If, at that juncture, he drew out his knife and inflicted one stab to save himself or his father or both from death or grievous hurt, it cannot be found that he was acting in excess of lib right of private defence. The 2nd accused who gave a blow to the deceased, on finding his son being attacked, was also justified in doing so.
9. What remains to be considered is the charge against accused 2 for having caused hurt to Pw. 1 by hitting him with the blunt edge of a chopper. Pw. 1, as well as Pws. 2 and 10 give a consistentversion about that part of the incident and there is no justification for discarding their evidence on that point. Ext. P--7, the wound certificate, and the evidence of Pw. 3 who issued the same, also corroborate their evidence. The 2nd accused had no justification for hitting Pw. 1, who remarked that they were going after killing their brother. Hence, the conviction of the 2nd accused on this count and the sentence of rigorous imprisonment for 1 month have to he upheld.
10. In the result, the conviction of the 1st accused under Section 302 and the sentence of death awarded to him are set aside. He will be set at liberty forthwith. While setting aside the conviction of the 2nd accused under Section 324 for causing hurt to the deceased, and the rigorous imprisonment for one year awarded to him on that account, we confirm his conviction under Section 324, I.P.C. for causing the hurt to Pw. 1, and the sentence of rigorous imprisonment for one month awarded on that count. The Criminal Appeal and the Reference are disposed of in the above terms.