U. Lakshminarayana Bhat, J.
1. The appellant in Crl. Appeal No. 408 of 1979 has been convicted by the Additional Sessions Judge, Parur, Under Section 304, Part II, I.P.C. and sentenced to undergo rigorous imprisonment for a period of 7 years. He is aggrieved by the conviction and sentence entered against him. The State has filed Crl. Appeal No. 59 of 1980, contending that the trial Court ought to have recorded a conviction Under Section 302, IPC
2. Pws. 1 and 5 are sons and PW 6 the brother of the now deceased Kumaran, who died in the occurrence which took place on 14-3-1979 at 1.30 p.m. in front of P.W. 2's shop in Puthenvelikara village. There was an earlier Sessions case, in which PW l's brother Sudheesh was charged with the offence of murder of Raman Kunhi, the father of the present accused and the case ended in acquittal. Since then the members of the two families have been on terms of enmity. Near the shop of PW 2 is the toddy shop, of which PW 4 is the Manager and PW 3 an employee. There was an exchange of words between PW 3 and deceased Kumaran inside the toddy shop and they came out to the shop of PW 2. At that time the accused was at the shop of PW 2. Kumaran mentioned the case against Sudheesh, which was objected to by the accused. PW 2 asked them to leave the shop. Kumaran proceeded eastwards and the accused also followed him. The accused took M. O. 4 'muttikkal' from his waist and gave a blow, which fell on the left cheek of Kumaran, who tried to avoid the blow, tripped and fell down. Immediately the accused took Mo. 5 tappers' knife from his waist and inflicted cuts On the forehead and both the legs of Kumaran and left the scene taking his weapons. PW 2 rushed and gave information to PW 6, PW 5, who happened to come to the scene, bandaged the injuries with his 'thorthu' Mo, 6. A taxi was fetched. But the taxi driver fell giddy on seeing the injured. The injured was put in a cot and carried by PW 2 and others and taken to Puthenvelikkara hospital, where PW 8, the doctor, advised the injured to be rushed to the District Hospital, Ernakulam. Meanwhile PW 1, who heard about the occurrence, went to the scene, came to know that the injured was removed to the hospital and proceeded to the Puthenvelikkara hospital. From there the injured was taken in a car to the District Hospital, Ernakulam. When the car reached near Ernakulam at about 4.15 p.m. Kumaran died. When he was taken to the hospital he was found to be dead. The doctor in charge gave a phone message to the Central Police Station, Ernakulam, from where a police constable, PW 14, was sent to guard the body. A phone message was sent from the Central Police Station to the Vadakkekara police station stating that PW 1 was on his way to the station to give information. PW 1 along with mother and others returned home. Thereafter PW 1 went to the Vadakkekara police station at about 7.30 p. m. and gave Ext. P 1 statement, on the basis of which PW 19, the Asst. Sub Inspector of police, registered Crime No. 42 of 1979 against the accused. PW 19 sent PW 15 to guard the same. Meanwhile, at 3.15 p. m. the accused went to Government Hospital, Parur, where he was admitted as inpatient by the doctor, PW 9, who also sent information to the Parur Police station, from where PW 18, the Asst. Sub Inspector of police, went to the hospital and recorded Ext, P 13 statement of the accused registered a case as Crime No. 69 of 1979 and transferred the case to Vadakkekara Police station. PW 20, the Sub Inspector of police, Vadakkekara re-registered the case as crime No. 43 of 1979 as per Ext. P. 15, F. I. R.
3. Both the cases were investigated by PW21, the Circle Inspector of Police, Parur. He held inquest on the dead body in the presence of PW 11 and others and prepared Ext. P 9 inquest report, seized Mos. 1 to 3 and 6 during inquest. He inspected the scene and prepared scene mahazar Ext, P2 attested by PW 12 and seized Mo. 7 sample of soil. He searched the house of the accused. Post-mortem was conducted by PW 7, doctor of the District Hospital, Ernakulam. On the discharge of the accused from the hospital on 17-3-1979, he was arrested at 2.0.5 p.m., questioned and on the basis of the information given by him Mos. 4 and 5 were recovered under Ext. P. 18 mahazar attested by PW 13. Other witnesses were questioned and a plan has been prepared and material objects were caused to be sent for chemical examination. PW 22, the successor of PW 21, laid the charge against the accused. The Sub Inspector of Police, PW 20 filed a refer report, Ext. P 16, in the countercase alleging that the case was false.
4. Judicial I Class Magistrate, Parur in C. P. 3/79 committed the accused to stand his trial before the Sessions Court, Ernakulam. The case was transferred to the file of the Additional Sessions Judge, Parur. The accused was defended. He pleaded not guilty to the charge Under Section 302 I. P.C. framed by the trial Judge. Prosecution examined 22 witnesses. Exts. P 1 to P. 19, D 1 to D 5 series and Mos. 1 to 9 were marked. The accused told the trial Judge that as a tapper he had gone to the toddy shop to get his wages and seeing Kumaran in an aggressive and abusive mood withdrew from there and went to PW 2's shop and was sitting there and that PW 3 and Kumaran came out and Kumaran mentioned the case relating to the murder of Raman Kunhi, which was objected to by the accused. PW 2 asked them to leave the place, which they did. On the way Kumaran caught him by his neck and when he tried to free himself, Kumaran took out a knife from his waist and stabbed the accused and he was injured in spite of his attempt to ward off. Thereafter, according to the accused, Kumaran took out 'muttikkal' and beat him on his cheek. This was followed by a scuffle, in which both of them fell down. When the accused got up extricating himself he was kicked by Kumaran and then the accused took his knife and waved it, as a result of which Kumaran sustained injuries on his legs. The trial court on the basis of the testimony of PWs 2 to 4 held the accused guilty of culpable homicide not amounting to murder in the light of exception 2 of Section 300 IPC and convicted and sentenced him under S, 304, Part II, IPC
5. There is no dispute that in the afternoon of 14-3-1979 the now deceased Kumaran sustained injuries and succumbed to the same before he was taken to the District Hospital, Ernakulam. At first he had been admitted to the Puthenvelikkara Hospital, where PW 8 examined him. Ext. P 6 is the wound certificate issued by PW 8. Ext. P 9 is the inquest report prepared by the investigator. Post-mortem was done by PW 7. Ext. P 4 is the post-mortem certificate. The evidence shows that Kumaran had 4 incised injuries, viz., on the anterio-medial aspect of the right ankle with fracture, on the medial aspect of the right foot with fracture, on the anterior aspect of the left ankle and on the middle of the forehead, besides contused abrasions on the left cheek and multiple abrasions of varying shapes on the posterior aspect of the right elbow joint. Internally there was a 'Y' shapped fracture on the anterior aspect of the frontal bone together with subdural haematoma underneath. There was also contusion of the right cerebrum and flattening of convolutions of the cerebrum. Ventricles contained blood. PW 7 has deposed that coma caused by the head injury was responsible for death and incised injury in the middle of the forehead corresponds to the head injury.,
6. We may at the outset refer to the discussion at the bar on the question of burden of proof with specific reference to a case where an accused sets up right of private defence and admits that the deceased sustained injuries at his hands. It is argued by the learned Prosecutor for the State that in such a case only formal proof is necessary of the prosecution version and reliance can be placed on the inculpatory answers given and the case set up by the accused. The learned Prosecutor also contended that where the accused has failed to establish the case propounded by him that goes a long way in helping the prosecution. A number of decisions have been cited before us and we will presently refer to the same.
7. In the decision in State of U.P. v. Ram Swarup : 1974CriLJ1035 it has been observed as follows (at p. 1038):-
The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused had acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal Court to find in favour of an accused on a plea not taken up by him and by so doing the court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the court may find from the evidence of the witnesses ex-mined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded.
8. In the decision reported in Yogendra Morarji v. State of Gujarat : 1980CriLJ459 , after referring to the burden of proof resting on the accused Under Section 105 of the Evidence Act in the matter of a plea of private defence, Supreme Court observed as follows at Para. 14:
Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen. Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge of intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dhayabhai v. State of Gujarat : 1964CriLJ472 Under Section 105, read with the definition of 'shall presume' in S, 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private (defence is claimed); as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even Under Section 105, the standard of proof required to establish these circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under S, 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.
The manner in which the accused cold discharge the burden has been explained thus in para 15.
The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded Under Section 313 of the Criminal P. C, 1973.
9. It is not as if the failure of the accused to establish positively the defence is an end of the matter. In the decision referred to above, in para 16, it has been observed as follows:- 'Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged thus, there may be cases where despite the failure of the accused to discharge his burden Under Section 105, the material brought on the record may, in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence Under Section 299 of the Code (See Dahyabhai v. State of Gujarat 1964 (2) Cri LJ 472 (SC) (ibid) State of U. P. v. Ram Swarup : 1974CriLJ1035 , Partap v. State of U. P. : 1SCR757 .
10. In the decision reported in Mohan Singh v. State of Punjab : 1975CriLJ1865 it has been observed as follows in paragraph 7:
An accused pleading the right of self defence need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his (defence acceptable. In any event the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused.
11. In the decision reported in Sawal Das v. State of Bihar : 1974CriLJ664 after dealing with the burden of proof under S, 106 of the Evidence Act, it has been observed as follows at page 79 (of (1974) 3 SCR) : (at p. 667 of 1974 Cri LJ)
Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is : has the prosecution dis-1 charged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?
12. The correct position can be summarised as follows: Burden of proof rests entirely on the prosecution to establish beyond reasonable doubt all the ingredients of the offence alleged including the actus reus and the mens rea. Burden of proof resting on the prosecution to establish a case beyond reasonable doubt is neither taken away, nor discharged, nor shifted merely because the accused sets up a plea of private defence. The question of right of private defence arises only after the initial burden resting on the prosecution is discharged. The burden of establishing circumstances leading to exercise of right of private defence rests on the defence. But the nature of the burden resting on the defence is different from the nature of the burden resting on the prosecution. The former is not as onerous as the latter. The burden resting on the defence can be discharged, as in any other case, by adducing direct evidence or by establishing probabilities with regard to circumstances pleaded by him. For this purpose he may rely on evidence of defence, answers elicited from prosecution witnesses, presumptions, defence statement and probabilities. Even if the defence fails to discharge the burden, the matter does not end there and the prosecution cannot automatically succeed. The defence may marshal and rely on circumstances, which though not sufficient to establish the defence case, may suf' fice to raise a reasonable doubt regarding the existence of one or the other of the ingredients of the offence charged, The totality of the circumstances placed before the court may create reasonable doubt in the mind of the court regarding the mens rea or other ingredients. There can be no rule as to under what circumstances such a reasonable doubt can be said to arise. The circumstances may be as varied as there are cases.
13. The trial court has relied on certain part of the answers given by the accused when questioned Under Section 313 of the Cr, P. C. This has been objected to by Sri M. N. Sukumaran Nair, the learned Counsel for the accused: but it is supported by the learned prosecutor. The matter has been explained in the decisions reported in Nishi Kant v. State of Bihar : 1969CriLJ671 and Mohan Lai v. Ajit Singh : 1978CriLJ1107 . In the former decision there was acceptable evidence contradicting the exculpatory part of the statement of the accused. It was, therefore, held that the High Court was right in accepting the inculpatory part and piecing the same to other evidence and coming to the conclusion regarding the guilt of the accused. In the latter decision it has been observed as follows in para 22 :
An attempt was made to argue that if the statement of the respondent is to be considered at all, it must be taken as a whole and that it is not permissible to act upon one portion of the statement which shows the presence of the respondent in the company of the deceased, and leave out those portions which are exculpatory. It will be enough to say that the matter has been examined by this Court in Nishi Kant Jha v. State of Bihar : 1969CriLJ671 and as the evidence on the record disproves the exculpatory part of the respondent's statement in the trial court, it is clearly permissible to accept that part of the statement which accords with the evidence on the record, and to act upon it.
It will be worthwhile to look into the observations of the Supreme Court in Bhagirath v. State of M, P. : 1976CriLJ706 :
It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis.
14. The position can be summarised as follows. If the prosecution has not placed any incriminating evidence, any admission made by the accused, will be of no avail, unless the admission constitutes an admission of guilt of any offence. Where the prosecution has not placed any incriminating evidence before court, there will be no justification to separate the exculpatory part of the defence statement from the statement of the accused and to act only on the inculpatory part thereof. This will be the position even where the prosecution adduces incriminating evidence, but the same is found to be unacceptable. Ordinarily the entire statement of the accused must be taken as a whole. However, it may be that all part of the statement may not be equally deserving of credit. It is for the court to consider how much of the statement is worthy of acceptance. It is open to the prosecution to contradict the exculpatory part of the defence statement by relying on evidence on record or other circumstances. If the exculpatory part is found to be per se improbable or is contradictory by acceptable evidence or is disproved, there is no bar in the court accepting the inculpatory part. However, care has to be taken to see that mere weakness of the defence case, either because it is inherently weak or because it is not proved, is not taken as substitute for reliable evidence on the side of the prosecution.
15. PWs 2 and 3 are the eye witnesses in the case. The first informant is PW 1, one of the sons of deceased Kumaran. He is not an eye witness. PW 4, who is the manager of the toddy shop near the scene of occurrence, came out on hearing about the incident and saw the accused going away with the blood-stained knife in his hand. PWs 5 and 6 came long after the occurrence was over. PWs 2 and 6 accompanied the injured to the hospital. PW 2 is a person, who is running a shop just near the scene of occurrence. He has deposed that PW 3, a salesman in the toddy shop, followed by Kumaran came out of the toddy shop. Kumaran asked PW 3 if the murder case relating to PW 3's nephew is now pending, to which PW 3 replied that Kumaran's son was also involved in the murder case, (relating to murder of father of the accused) and asked why this conversation should take place in the presence of the accused. Kumaran replied that he will indulge in this talk in the presence of any one and went to the shop of PW 2 for lighting a beedi. Accused asked Kumaran not to refer to him. When PW 2 asked them to get out of the shop, both of them proceeded east, accused following Kumaran. The accused asked Kumaran if Kumaran remembers to have arranged for the murder of the father of the accused, to which Kumaran replied what was wrong about it. The accused pushed Kumaran, who fell down. PW2 has further deposed that accused took M. O. 4 and hit Kumaran on his forehead and thereafter took MO 5, both from his waist, and inflicted two cuts on the legs of Kumaran and left the place saying that he will give information to the police. In cross-examination he was not certain regarding the identity of MOs4 and 5. He affirmed that he had informed PW 1 about the occurrence and he gave information to the doctor at Puthenvelikara hospital. He was confronted with a part of his case diary statement Ext. Dl which he denied. The statement has been proved by the investigator. In the case diary version, PW 2 stated that there was a tussle and push and pull between Kumaran and the accused and in the course of that the accused took MO 4 and aimed a blow at Kumaran, who moved back and the edge of MO 4 hit him on his cheek, and in the course of this incident Kumaran tripped on a heap of sand and fell down and thereafter the accused took MO 5 and gave 3 or 4 cuts at Kumaran who was lying down on his head and legs.
16. PW 3, a worker in the adjoining toddy shop, deposed in chief examination that at about 1 p.m. Kumaran came fully drunk and was uttering abuses in a filthy language, that PW 3 went to PW 2's shop and Kumaran also followed continuing to utter abuses, that there was a wordy quarrel between Kumaran and the accused, which ended in a scuffle near the coconut tree and both of them fell down. PW 3 would further have it that the accused got up, hit Kumaran on the cheek with MO 4 and later took his knife, MO 5 and inflicted cuts on the legs. The witness saw only one cut. The learned Prosecutor was permitted to put leading questions to this witness. The learned Prosecutor confronted him with the portions of case diary statement marked Ext. P3 series, which have been proved by the investigator. In the case diary version he stated that the accused gave 3 or 4 cuts on the front of head and legs. He did not see any weapon in the hands of Kumaran. PW 3 stated that while Kumaran was lying he was trying to kick accused and Kumaran was lying in between the heaps of bricks and sand. PW 4 deposed that the accused was throughout using filthy language.
17. The trial court came to the conclusion that all the injuries were sustained by Kumaran in this incident. This is not disputed and is established by the evidence and circumstances. The lower court was of the opinion that the head injury could not have been caused by a fall and the alleged non-explanation of this injury is not fatal to the prosecution and that the admission by the accused of having caused injury on the leg and left cheek and the use of MOs 4 and 5 are sufficient to establish the truth of the prosecution version. At the same time, on the basis of the evidence regarding filthy language used by Kumaran, uttering the name of accused's father followed by the scuffle and the inability of the investigator to say who was the aggressor and evidence regarding the aggressive mood of Kumaran, the learned trial Judge concluded that there were circumstances, in which accused must have felt danger to his life. The trial Judge was of the opinion that under the circumstances the accused exceeded the limit of right of private defence. Both sides are dissatisfied with the reasoning and conclusion.
18. Prosecution relies on the testimony of PW 2 and partly the testimony of PW 3. If these materials are to be accepted, in the light of the other circumstances, prosecution case should be accepted and the defence case has to be rejected. If, on the other hand, the depositions of PWs 2 and 3 are found to be unreliable, the entire prosecution case has to fall, even though the accused has admitted that Kumaran sustained injuries at his hands and even though the accused has failed to marshal evidence in support of his case. If the circumstances emerging from the evidence create reasonable doubt in the truth of the prosecution version, the benefit of doubt must go to the accused. If the prosecution version regarding the manner of causing injuries cannot be believed, the prosecution story as to the manner of occurrence will become doubtful and the benefit must go to the accused.
19. The first information statement is given by PW 1, one of the sons of Kumaran. It purports to be based on the dying declaration said to have been given by Kumaran while he was being taken from the Puthenvelikara hospital to Ernakulam and the version stated to have been given by PW 2 to PW 1. PW 1 has given a go-by to this version and the material contained in Ext. PI. The version in Ext. PI is that there was a wordy quarrel between Kumaran and the accused, that the accused beat Kumaran with MO 4 on his head and Kumaran fell down on receiving the blow and thereafter the accused with MO 4 inflicted cut injuries on the legs. Evidently the prosecution does not accept this version. That must be the reason why PW 1 has given a go-by to Ext. PI. He deposed that the injured was conscious, that witness asked PW2 about the occurrence and PW 2 only promised to tell him later on and later on he did not come to know of the occurrence either from PW 2 or any one else. The medical evidence shows that the had injury, which is the fatal injury, must have been caused by a cut and not by beating with MO 4. In fact, the medical witness was not asked whether the head injury could have been caused by beating with MO 4. The version placed before the court is that the blow on the head only grazed the cheek. If, as PW 1 says, he did not come to know about the occurrence either from the injured or from PW 2 or anyone else, the first information statement remains a mystery and casts an aura of suspicion over the very commencement of the investigation. It is pointed out by the learned Prosecutor that the contents of Ext. PI are not substantive evidence and can be used only to contradict or corroborate the maker of it, A first information statement can be put to some other use also. We may in this connection refer to the decision in Ram Kumar v. State of M.P. : 1975CriLJ870 . In that case after the first informant Uttam Singh was attacked at one place his son Harbinder Singh was attacked some distance away. The first information statement was given 4 hours after the occurrence, but did not contain any mention of the attack on Harbinder Singh, even though the daughters of the informant were alleged to have witnessed the attack on Harbinder Singh. Commenting on this aspect of the case, it has been observed as follows by the Supreme Court : (at p. 872)
No doubt an F. I. R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated, if the daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant Under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
Thus we are of the opinion that, though generally speaking the contents of first information statement can be used only to contradict or corroborate the maker thereof, there may be cases where the contents become relevant under the circumstances explained in the above decision. Viewed in that light, the mention of the dying declaration and the version of PW 2 in Ext. PI, and conduct of PW 1 in giving up his earlier statement in Ext. PI have to be taken as circumstances against the prosecution. These circumstances certainly go to affect the credibility of PW 2's version.
20. On going through the testimony of PW 2, we find that he has given substantially two different versions before the police and before the Court. The contradictions brought out in Ext. Dl series cannot be brushed aside as in significant or minor contradictions in matters of detail. If the accused had pushed Kumaran at the beginning of the occurrence, that would certainly go to indicate his aggressive stance. Such an allegation, though made in court, was not made before the police. On the other hand, the version given before the police was that there was a tussle and push and pull between them in the course of which Kumaran tripped on a heap of sand and fell down. This evidences a deliberate and motivated attempt on the part of PW2 to give a twist to the case. In his earlier version he mentioned 3 or 4 cuts on the head and legs. At the stage of evidence this is restricted to cuts on the legs alone. No explanation is forthcoming as to why PW 2 should change his version in this manner. His testimony in court goes to show that the head injury must be caused by MO 4 Muttikal which is not the prosecution case as found in the police charge and the charge framed by the court. The discrepancies between the case diary version of PW 2 and his version in the court are very material. In the face of these discrepancies, coupled with the suspicion surrounding Ext. Pi as seen from the evidence of PW 1, it cannot be said that PW 2 is a reliable witness. His testimony cannot be accepted in regard to . the manner in which the injuries were inflicted and occurrence took place. That there was a scuffle was mentioned by PW 2 to PW 6 also. In court PW 2 avoided all mention of a scuffle, evidently because it is a circumstance which may be utilised by the defence. The medical evidence shows that the head injury must be due to the cut with a sharp-edged weapon. The evidence of PW 2 does not show that there was an injury on the head with a chopper. On the other hand, the evidence of PW 2 suggests that the head injury must have been caused by hitting with MO 4. We have already seen that such a suggestion was not put to the medical expert at all. It is evident that PW 2 has been changing his version, developing his case and suppressing truth.
21. PW 3 falls in the category of what is known as a 'hostile witness'. Neither law nor practice requires that the testimony of a hostile witness must be rejected in toto. The evidence of such a witness should be subjected to careful consideration and sifted properly in the light of other evidence and attendant circumstances and after such a consideration, if any part of his evidence is found truthful, court will not hesitate to rely on such part of the evidence. We do not find that his evidence has been subjected to any such careful scrutiny by the learned trial Judge, in chief examination he refers to wordy quarrel and scuffle between Kumaran and accused and their fall followed be a hit on the cheek and cut on the leg. He qualifies the statement by saying that he saw only one cut. There is no case for the prosecution or for this witness that he was in such a position that he could not observe the entire occurrence. He claims to have seen the entire occurrence from a vantage place. If so, we cannot accept that he would have missed seeing the alleged cut on the head and other material parts of the occurrence. His case diary version refers to a cut on the head, which is now suppressed by him. We have already referred to the fact that the fatal injury is, the head injury. The evidence of the witness does not explain how this injury could have taken place. At the same time he refers to a kick said to have been delivered by Kumaran and the drunken condition of Kumaran. His evidence is also not in accordance with the version given by PW 2 in court regarding the fall of Kumaran by a push given by the accused. His evidence, which is materially contradictory to the version given by him to the police, as well as the version given by PW 2 in court, does not inspire any confidence at all. Under these circumstances, no part of his evidence can be accepted as reliable, particularly when the testimony of PW 2 himself is found to be unreliable.
22. In a case like the present one, where a right of private defence is set up, it is necessary for the prosecution to place the correct and full version of the occurrence before court. It is necessary for the court to know how the occurrence commenced and who was the aggressor. If the prosecution version is found to be unreliable an adverse inference may be drawn against the prosecution. We may at this stage notice that by 3.15 p.m. on the day of occurrence accused got himself admitted in the Government Hospital, Puthenvelikara and told the doctor that he was stabbed and beaten. By 6 p.m. on the same day he gave his own version to the police as could be seen from Ext. P13 where he had alleged that he was the victim of aggression at the hands of Kumaran and received injuries at his hands. He admitted having beaten Kumaran and inflicted cut injury on him. The mere fact that the accused went before the authorities with his own rival version by itself does not carry him anywhere. But this is a circumstance which could be taken into consideration along with other circumstances which obtain in this case.
23. It is true that defence has not let in evidence in support of the defence version. But then failure to adduce evidence becomes material only where the initial burden resting on the prosecution is discharged. We have indicated that the prosecution version is not acceptable. The circumstances mentioned above create a reasonable doubt regarding the truth of the prosecution version of the occurrence. The benefit of this doubt must go to the accused. In the nature of the case the evidence regarding the recovery of MOs. 4 and 5 is not material. The learned trial Judge has not sifted or properly considered the evidence of PW 2 and 3 and did not consider the effect of Ext. PI and the testimony of PW 1. We find that the learned trial Judge has erred in finding that the prosecution has succeeded in proving the case propounded by it beyond reasonable doubt. The prosecution version is not proved beyond reasonable doubt. It is therefore unnecessary to consider whether the defence case is proved or whether the accused has exceeded the right of private defence.
In the result the conviction and sentence entered by the trial court are set aside and the accused is acquitted of the charges against him. Crl. Appeal No. 408 of 1979 is allowed and Crl. Appeal No. 59 of 1980 is dismissed.
An oral application was made under Article 134(A) of the Constitution for a certificate for filing an appeal to the Supreme Court. We do not think that this is a fit case for granting certificate. We, therefore, decline to grant a certificate.