Judgment :- 1. Appellants 1 and 2 were accused 1 and 2 at the trial of Sessions Case 2 of 1959 against them and the third accused before the learned Additional Sessions Judge at Kottayam. Accused 1 and 3 are the sons of the second accused. The first accused has been convicted under S.302, I. P. C. and has been sentenced to be hanged subject to confirmation by this court. Accordingly the proceedings have been submitted to this court under S.374 Crl. P.C. He has also been convicted under S.324 I. P.C. and sentenced to undergo rigorous imprisonment for one month. The second accused has been convicted under S.324 I. P. C. and has been sentenced to undergo rigorous imprisonment for two months. The third accused has been acquitted 2. The three accused were living in a building marked 'B' in the sketch Ext. P-11, situated in a property called 'Thengumpalli'. On the west of the property is a river called 'Llalam' thodu marked 'M' in Ext. P-11. This was fordable at the point'L'. From this point there is a pathway which, as marked in Ext P-11, cuts across Thengumpalli and lies west to east. The deceased Kunjomman, his widow Pw. 2, his son Pw.1 and his daughters Pws. 3 and 10 were living about 3/4th of a furlong to the east of Thengumpalli. Their only access to the river was through this pathway. On account of obstruction to the use of the pathway Pw. 10 had preferred a complaint on the first of August 1958, to the 1st class Magistrate at Meenachil. In it she alleged that while she was passing along the pathway she was abused and pelted with stones by them, that they were going about armed and were bent upon causing obstruction to her and the members of her household. She, therefore, prayed for necessary action being taken against the accused to ensure their safety. Ext. P-10 was forwarded to the Police and by Ext. P-10 (a), the Head Constable reported on the 26th August 1958 that the members of the two families were at loggerheads with one another, but that there was only exchange of words between them on that day and the accused had been warned not' to obstruct Pw. 10 and others in using the pathway. No further action was taken upon Ext. P-10. 3. 10 and others in using the pathway. No further action was taken upon Ext. P-10. 3. On the morning of the 21st September 1958, which was a Sunday, Kunjomman and Pw.1 went to the Karur Church which is situated to the west of the river cutting across Thengumpalli. They were returning from church by about 8-30 A. M. along the same pathway. When they came to the south of the building 'C' marked in Ext. P-11, which was then under construction, accused 2 and 3 came out of their house and called aloud " ]nSn-t"mSm Aht " as if to the first accused who was tapping rubber near a mango tree marked 'K. The first accused dropped the tapping knife M.O.7 and took a stone as if to pelt Kunjomman with it. Seeing this, Kunjomman and Pw.1 turned back and ran westwards followed by the first accused who scored a hit on Kunjomman's head with the stone. The second accused threw a chopper M. 0.1 to the first who picked it up, overtook Kunjomman and inflicted three cuts on his head, the first one across the nose, the second on his right cheek and the third across the back of his head. Kunjomman fell on the ground and died immediately. While inflicting the second cut on the right cheek, Pw.1 tried to save his father and in that process received the cut partly on his left hand. After Kunjomman had fallen the first accused turned on Pw.1 with the chopper and there ensued a tussle between them in which accused 2 and 3 also participated. In the course of this struggle they fell at the point'B' on the western side of the kayyala marked in Ext. P-11. The second accused then cut Pw.1 on the right leg and on the right elbow joint with a chopper. Pws. 2 and 3, who were on the eastern garden and had advanced towards the mango tree when Kunjomman was cut, hurried towards Pw. 1. The third accused then cut Pw. 2 with the chopper thrice. The first accused then inflicted two injuries on Pw. 3 on her left wrist and her left forearm with M. 0.1. By this time people were collecting and the three accused left the scene. This is the case for the prosecution. 4. Pws. 1. The third accused then cut Pw. 2 with the chopper thrice. The first accused then inflicted two injuries on Pw. 3 on her left wrist and her left forearm with M. 0.1. By this time people were collecting and the three accused left the scene. This is the case for the prosecution. 4. Pws. 1, 2 and 3 were removed to the Government Hospital at Palai at about 9 A.M., where they were admitted by Pw. 14 the Civil Surgeon-in-charge. Accused 1 and 2, who had also some injuries on their person, arrived there at about the same time. Pw. 14 addressed two letters concerning this to the Sub-Inspector of Police at Meenachil which were received by Pw. 12 the Head Constable-in-charge who arrived at the hospital and recorded Ext. P-1 first information from Pw.1 at 10-30 A.M. and prepared three mahazars about the injuries sustained by Pws.1 to 3. He then recorded Ext. P-14 statement of the second accused at about 12 noon on the same day and prepared two mahazars about the injuries sustained by accused 1 and 2. He registered two cases Nos. 156 and 157 of 1958 upon the two statements Exts. P-1 and P-14 respectively. Pw. 14 drew up Exts. P-21, P-22 and P-23 wound certificates for Pws.1 to 3 and Exts. P-27 and P-25 for accused 1 and 2 respectively. It is not known how long Pws.1 and 3 were treated in the hospital, as the relevant discharge certificates, copies of which were not served on the accused in time, were not allowed to be proved, though it is in evidence that Pw. 2 was treated, according to her, for about 22 days. Accused 1 and 2 were discharged on the 24th September 1958 and were taken into custody. The third accused was arrested on the next day. 5. The inquest over the body of Kunjomman was held by Pw. 15, the Sub-Inspector of Police on the 21st September itself. Among the articles recovered were the sheath M. 0.3 of a knife from the point'B', a stone M 0.5 from a place a little to the east of the point'A' where the dead body lay and M. 0.7, a tapping knife from the western side of the mango tree. 15, the Sub-Inspector of Police on the 21st September itself. Among the articles recovered were the sheath M. 0.3 of a knife from the point'B', a stone M 0.5 from a place a little to the east of the point'A' where the dead body lay and M. 0.7, a tapping knife from the western side of the mango tree. The postmortem examination of Kunjomman's body revealed that there was a cut across the nose 5" x 2" and 3" deep besides a cut on the right cheek and a cut on the hind part of the skull which fractured the skull bone. In addition, there was a contusion about 2" x 2" on the back of the head in the occipital region which could be caused by pelting with a stone. The injury on the nose was fatal and was the cause of death. 6. The two cases which had been registered by Pw. 12, the Head Constable, were investigated jointly and the Police referred the case registered on the statement of the second accused as false, the two accused having suffered injuries, according to the report Ext. P-29 referring the case as false, in the course of the tussle in which they were engaged with Pw.1 after Kunjomman had been cut down. 7. The learned Additional Sessions Judge found that the first accused caused the death of Kunjomman and inflicted the injury on the left hand of Pw. 1. He also found that the second accused cut Pw.1 on the right leg and on the right elbow. The convictions of accused 1 and 2 under S.324, I. P. C. were in respect of these offences. The learned judge also thought that the act attributed to the first accused of inflicting the injuries on Pw. 3 and the act attributed to, the third accused, that he inflicted injuries on Pw. 2, were not proved beyond doubt. The charge against accused 1 and 2 under S.307, I. P. C., that they attempted to murder Pw.1 was not substantiated. The learned judge, was also of the view, that the accused were not actuated by a common intention, and so, S.34 I.P. C. was inapplicable. As for the sentence of death imposed on the first accused, the learned judge did not accept his statement, that he was only 17 years of age, but preferred to act upon that of Pw. The learned judge, was also of the view, that the accused were not actuated by a common intention, and so, S.34 I.P. C. was inapplicable. As for the sentence of death imposed on the first accused, the learned judge did not accept his statement, that he was only 17 years of age, but preferred to act upon that of Pw. 1, that he took the first accused, to be more than 24 years of age, and that it was a case of deliberate murder. 8. At this stage, it may be noted, what the case put forward by the accused was. Before the committing Magistrate accused 1 and 2 pleaded ignorance of the whole offence. Before the learned Sessions Judge, under S.342, Criminal Procedure Code, the 1st accused's theory was, that his mother, the 2nd accused, was belaboured by the deceased, Pw. 2, and all their children, and he rushed to her rescue, when he was attacked, with choppers and sticks. This was followed by a tussle in which Pws.1 and 2 got the upper hand. The rest of the case was mentioned by the 2nd accused in her statement, that she brought a chopper from her house, when the 1st accused was being attacked, and then used it indiscriminately, and was unable to say what consequences ensued. In other words, the theory was, that the 2nd accused acted in the exercise of private defence, of both accused 1 and 2. 9. The learned judge in entering the conviction, relied almost entirely, on the evidence adduced by Pws. 1 to 3. Pw. 4 was a material witness examined by the prosecution, and he related the whole incident, from the point of time Kunjomman and Pw.1 took to their heels till the tussle had fully developed after Kunjomman had fallen. He said, that he witnessed the occurrence standing on the western bank of the river, and asserted, in spite of cross examination to the contrary, that he could see what took place at the scene of occurrence, standing a few feet to the south of the Kadavu or ghat, at which the river, was fordable. He repudiated the suggestion, that a tamarind tree offered obstruction to his vision, and maintained, that the tree spread its foliage only towards the south, and he could very well see what happened, standing from where he was, across the northern side of the tree. He repudiated the suggestion, that a tamarind tree offered obstruction to his vision, and maintained, that the tree spread its foliage only towards the south, and he could very well see what happened, standing from where he was, across the northern side of the tree. It is in evidence, that Thengumpalli property is sipping from east to west, and if there were a few shrubs on the western side of the property, he could see what was taking place on a higher level, say, at the point A, & to the east of it, where the land is on a higher level. Reading the testimony of Pw. 4, we find nothing in it, to shake his testimony or to impeach his veracity. The learned judge has chosen to disbelieve him, not for anything that he has said, but on account of what the next witness, Pw. 5 had so say. Pw. 5 for that matter, did not profess to say, that he had seen where Pw. 4 was standing at the time of the occurrence. Certain general questions were put to him in cross-examination, regarding the tamarind tree, and the obstruction offered by it to the vision from the western bank of the river, to which he gave answers favourable to the defence. On other points too, answers were elicited from him, and he even went to the length of stating that he had been kept in the police lock-up for a few days, before his statement was recorded by the Magistrate under S.164, Criminal Procedure Code. In re-examination, the prosecution did not seek permission to cross-examine him as a hostile witness, but none the less, put questions in the nature of cross-examination to suggest, that what he had deposed to in cross-examination as to his detention in the lock-up, was an invention. Whether P.w. 5 was so detained or not, his testimony read as a whole has satisfied us that he is not a witness of truth, upon whose testimony alone, the reliability or otherwise of a witness like Pw. 4, can be made to depend. The learned Public Prosecutor urged before us, that Pw. 4 had been discredited on very slender premises. Though at first we did not take this seriously, on going through the depositions of both Pws. 4 and 5, we are convinced, that the complaint is well founded. 4, can be made to depend. The learned Public Prosecutor urged before us, that Pw. 4 had been discredited on very slender premises. Though at first we did not take this seriously, on going through the depositions of both Pws. 4 and 5, we are convinced, that the complaint is well founded. The learned Additional Sessions judge having chosen to specify the reason for which he has disbelieved Pw. 4, it is open to us, to examine its validity, and to come to our conclusion independently, whether Pw. 4 can be believed or not. Differing from the learned judge we think the testimony of Pw. 4 can be acted upon to the extent it goes. 10. Pws.1 to 3 have generally proved the occurrence in terms of the prosecution case as set out in Para.3 of this judgment. Pw. 2 was confronted with parts of her previous depositions which have been marked as Ext. D-1A to Ext. D-1C. It is impossible to read into her present testimony a contradiction with her earlier statements that the whole occurrence began as it were with confused fight. It is obvious reading Ext. D-1A to Ext. D-1C that the confused fight she was referring to started after Kunjomman had fallen. If is not also open to the defence to make a discrepancy in the evidence of Pws.1 to 3 that Pw.1 did not speak to the participation of the 2nd accused in the tussle between him and the 1st accused. Pw.1 did state in his present deposition that as he lay on the ground engaged in the tussle the 2nd accused also joined the tussle. The testimony of Pw.1 has received substantial corroboration from Ext. P-1, the first information. The evidence offered by Pws.1 to 3 to the extent it has received corroboration from Pw. 4 has proved that Kunjomman was pelted by the 1st accused while he was running west-wards was overtaken by him and was given 3 cuts on his head and that it was after this that the tussle took place in which Pw.1 and accused 1 and 2 took part. Pw.1 and in a way Pws. 2 and 3 have given evidence as to how the occurrence started with the instigation offered by the 2nd accused to the let accused and with the latter pelting a stone on Kunjomman's head. On this part of the case Pw. Pw.1 and in a way Pws. 2 and 3 have given evidence as to how the occurrence started with the instigation offered by the 2nd accused to the let accused and with the latter pelting a stone on Kunjomman's head. On this part of the case Pw. 4 did not corroborate Pws.1 to 3 as his attention was attracted only by the sound which he heard after Kunjomman had started fleeing for his safety. In other words the evidence of Pws.1 to 3 corroborated by that of Pw. 4 has proved that Kunjomman was cut down while he was running westwards and that it was not in the course of a confused fight between several persons as suggested on behalf of the defence that he sustained the injuries. 11. At this stage it is necessary to advert to a few points raised by the learned counsel for the defence. Pappachan was referred to as an eye-witness in Ext. P-1. He was examined as Pw. 5 in the committal court. Though in chief-examination he testified to the prosecution case in all its aspects in cross-examination he stated that to begin with, Pw.1 had pelted a stone at the 2nd accused's head and that she was hit on her head. There was an injury on her head which according to the surgeon could be caused by pelting with a stone. Pw. 5 had made other statements too in cross-examination that at some stage of the occurrence Pw.1 had obtained a chopper, that he used it on the 1st accused once or twice and that the latter was hit on his head. He also stated that the five daughters of Kunjomman had come to the scene. These details did not fit in with the prosecution case and therefore the learned Public Prosecutor without permission expressly recorded has put questions in re-examination in the nature of cross-examination. It may be deemed that this course was permitted and that this is sufficient" compliance with the requirements of law although I cannot help observing that the learned judge would have done well to record the permission deemed to have been granted, in express terms. For the present purpose, it is sufficient to note that Pw. 5 in the committal court had been treated as a witness hostile to the prosecution. For the present purpose, it is sufficient to note that Pw. 5 in the committal court had been treated as a witness hostile to the prosecution. As for the injury on the 1st accused's head which according to the present theory of the defence was caused by Pw.1 with a chopper it was the 1st injury noted in Ext. P-27, wound certificate which was an abrasion 1/2"x1/4" on the left aside of the head. It was elicited by the defence counsel in the cross-examination of Pw. 14, the surgeon, that this could be caused by beating on the head with the blunt side of a chopper. It is quite improbable that in the course of a life and death struggle Pw.1 would have particularly or deliberately used the blunt side of the weapon for the attack especially when the part chosen for inflicting the injury was a vital part. 12. The point now to be considered is whether the testimony of Pws.1 to 3 standing by itself can bo acted upon, in order to find the manner in which the occurrence started, without any corroboration from Pw. 4. There is no doubt that Pws.1 to 3 are interested witnesses and their testimony can be accepted only with caution. The 2nd accused has put up the defence that while Pw.1 and Kunjomman were passing along they abused her in vulgar language and she paid back in the same coin whereupon Pw.1 pelted a stone at her. In the absence of other evidence it is reasonable to accept this theory. Counsel for the accused urged before us that Pw.1 and Kunjomman having refrained from passing that way for nearly a month must be deemed to have come that way on that day, with an aggressive design especially when they are not persons who can be supposed to take things lying down, having been concerned in criminal cases and security proceedings against them, while on the other hand accused 1 and 3 are youngsters and the 2nd accused a woman. 13. We cannot think that Pw.1 and Kunjomman came there intentionally to pick up a quarrel. They had proceeded that way to the Church & were returning home. Kunjomman was unarmed and had taken to his heels at the sight of the 1st accused rushing towards him as if to pelt him. 13. We cannot think that Pw.1 and Kunjomman came there intentionally to pick up a quarrel. They had proceeded that way to the Church & were returning home. Kunjomman was unarmed and had taken to his heels at the sight of the 1st accused rushing towards him as if to pelt him. The recovery of the sheath of a knife M.O.3 was from the point B where the tussle took place, and not from anywhere near the point A, at which Kunjomman fell. This point is about 50 feet to the east of the point B. No argument can be built upon the dubious answer given by Pw.1 about the ownership of the sheath. One thing is reasonably clear that the sheath was not of a knife which Kunjomman had carried on that day. Of course the explanation suggested by the learned judge that it may have been dropped there by one of the passers by is strained and far fetched. To us, it appears, that it must have fallen from the hand of one of those who were engaged in the tussle, probably Pw. 1. The fact, if it is so, that Pw.1 had a knife with him on that occasion, does not suggest that they had any aggressive intention in coming that way. 14. The defence set up in the Sessions Court was that both accused 1 and 2 were belaboured and were beaten. The injuries on both of them as recorded in Exts. P27 and P25 were trivial and were such as would have been caused in the course of a tussle as explained by Pw. 14. It is seen that there were shrubs and overgrowth at or near the point B where they fell and the tussle took place. At the time the inquest was prepared, there was every indication there of a fight having occurred over the shrubs. It is quite probable that the abrasions and the lacerated wounds may have been caused in this manner as a result of the tussle. It was elicited by the learned defence counsel in the cross-examination of Pw. 14, that injuries Nos. 4 to 8 recorded in Ext. P-27 concerning the 1st accused and the injuries Nos.1 and 2 in Ext. P25 concerning the 2nd accused, could have been caused by beating with a stick. These are minor abrasions and lacerations. It was elicited by the learned defence counsel in the cross-examination of Pw. 14, that injuries Nos. 4 to 8 recorded in Ext. P-27 concerning the 1st accused and the injuries Nos.1 and 2 in Ext. P25 concerning the 2nd accused, could have been caused by beating with a stick. These are minor abrasions and lacerations. It is significant that there was not a single contusion corresponding to any of the injuries. It may be, that in the case of a stray beating, a contusion may not perhaps occur, but when the several injuries were mere abrasions without contusions, it is strange that the Public Prosecutor in the court below, did not elucidate the point in the re-examination of Pw. 14 as to how the abrasions alone could be caused by beating with sticks, so without a single contusion. It is surprising that the learned judge did not feel any doubt in his mind on that point or if he felt it why he did not deem it necessary to clarify it before Pw. 14 left the box. It appears to us very difficult to reconcile ourselves to the notion that not a single contusion could be noticeable in spite of such extensive beating. This is of no avail to the defence as according to the testimony of Pws.1 to 3 corroborated by Pw. 4 there was no scope for the inference that there was such beating on accused 1 and 2 before the tussle started. So on the nature of the injuries sustained by the accused, two points have to be noted, that is, firstly the prosecution has offered an explanation that those injuries could be caused as a result of the tussle which had taken place on that morning and secondly even assuming that certain injuries could be caused on accused 1 and 2 in the manner alleged by them such attack did not take place before Kunjomman fell. It may be mentioned at this stage that accused 1 and 2 did not set up any case of beating at the time their wounds were examined by Pw. 14 on the morning of the date of the occurrence. Their case then was that they were attacked with knives. At that time they were not in police custody and their statements to Pw. 14 as to the manner in which the injuries were caused have been proved. Ext. 14 on the morning of the date of the occurrence. Their case then was that they were attacked with knives. At that time they were not in police custody and their statements to Pw. 14 as to the manner in which the injuries were caused have been proved. Ext. P-14 having been recorded when the 2nd accused was in the position of an accused need not be used to contradict the present defence case. 15. It was strenuously urged by the learned counsel for the defence that the prosecution suffers from a very grave defect on account of the failure to examine Pappachan, Pw. 5 in the trial court. Enough has been said already to show that the prosecutor had treated him as a hostile witness in the committal court. If so we consider that it was not the bounden duty of the prosecutor to examine him as a witness for him at the Sessions trial. It is only necessary to advert to the observations of the Supreme Court in Bakshish Singh v. The State of Punjab, A.I.R. 1957 Supreme Court 904 at 907. The case decided by the Madras High Court in In re Ramachandran, A.I.R. 1957 Madras 505, on which reliance was placed, related to the non-examination of a witness who had not been treated as a hostile witness in the committal court. In the present case if the defence was keen on securing the evidence of Pappachan it was only necessary for the accused to make a motion to the learned Sessions Judge for the examination of the witness on the side of the defence. This has not been done. It is seen that the witness was cited for the first day of the trial and the Public Prosecutor gave him up as seen from the proceedings paper on that date itself after Pws.1 to 3 were examined. We consider that the prosecution cannot fail on account of non-examination of this witness. 16. It is an important point which appears to have escaped the attention of the learned judge that the 1st accused was engaged in the tapping of rubber near the mango tree when Kunjomman and Pw.1 were on their way eastwards. We consider that the prosecution cannot fail on account of non-examination of this witness. 16. It is an important point which appears to have escaped the attention of the learned judge that the 1st accused was engaged in the tapping of rubber near the mango tree when Kunjomman and Pw.1 were on their way eastwards. It is also the prosecution case that when the 2nd accused called aloud to him by way of instigating him, the 1st accused dropped the tapping knife, M. 0.7 at that spot from where it was afterwards recovered and took a stone, instead for pelting Kunjomman. To our minds this wholly negatives the suggestion of the prosecution that the accused were lying in wait for Kunjomman's return, from the Church. It also establishes that the 1st accused acted on the spur of the moment and his original intention was not to use a cutting instrument. If it were so, he would have carried the tapping knife with him, instead of throwing it way. Of course there is the evidence of Pw.1 that after Kunjomman was pelted the 2nd accused threw the chopper to the 1st accused in order that he may use it against Kunjomman. On this point too there is only the uncorroborated testimony of Pws.1 to 3, but the fact remains that the 1st accused got possession of a chopper at that time on reaching the point A. This is also a circumstance to prove that the 1st accused acted without any premeditation and under a grave and sudden impulse, on seeing his mother being abused and, being pelted with stone. 17. On the facts and circumstances discussed above the following conclusions emerge. The occurrence started on grave and sudden provocation being offered by Pw.1 and Kunjomman by abusing the 2nd accused and pelting her with a stone. Thereupon the 1st accused dropped his tapping knife, rushed towards Kunjomman with a stone and pelted him as he was fleeing. He obtained possession of a chopper by that time and under grave and sudden provocation he committed the act attributed to him by cutting Kunjomman at his head. There ensued a tussle between Pw.1 and the 1st accused in which accused 2 and 3 also took part. This tussle took place at a point 50 feet to the west of point A where Kunjomman had fallen. There ensued a tussle between Pw.1 and the 1st accused in which accused 2 and 3 also took part. This tussle took place at a point 50 feet to the west of point A where Kunjomman had fallen. In the course of the tussle they fell down over the kayyala, on the shrubs and on the overgrowth. Pws. 2 and 3 also came to the scene immediately. In the course of this confused fight several of them sustained injuries. Accused 1 and 2 sustained injuries which were mostly abrasions and lacerations which can be caused as a result of the tussle. Pw.1 sustained two cut wounds. According to Pw.1 they were caused by the 2nd accused. Here again the testimony of Pw. 4 and Pw. 5 is not available for Pws.1 to 3 for the purpose of corroboration. We decline to act upon the testimony of Pws.1 to 3 alone to attribute the individual acts to accused 1 and 2 during this part of the occurrence. The only act which can be found to be proved is that the 1st accused cut Kunjomman twice on his face and once on his head as a result of which he died. 18. The offence that has been brought home, is that of causing the death of Kunjomman committed by the 1st accused. By reason of exception I to S.300 I. P.C. this offence is culpable homicide not amounting to murder within S.304 Part 1, I. P.C. The charge against the 1st accused in other respects and the charge against the 2nd accused have not been brought home to them. The result is that the convictions of accused 1 and 2 entered by the learned Additional Sessions Judge and the sentences imposed on them are hereby set aside, instead, the 1st accused is convicted under S.304, Part I.P.C. and is sentenced to undergo rigorous imprisonment for seven years. The second accused is acquitted and is set at liberty if not wanted on any other charge. The appeal is allowed to the extent indicated above.