Judgment :- 1. The appellant is the first accused in Sessions Case No. 73 of 1958 of the Sessions Court of Trichur. Along with his son, the second accused, he was tried for an offence of attempted murder. He was found guilty under S.307, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for five years. The second accused who was tried as abettor was acquitted. 2. The case for the Prosecution may be briefly stated: The first accused has three sons, Pw. 1, Raghavan and the second accused. The first accused's father (Ayyappan) owned some properties and he bequeathed the same to his grand-children so that the first accused did not get any interest in his father's properties. After the death of Ayyappan and his wife. Pw.1 took possession of the properties. Raghavan was for several years in Ceylon and the second accused in Madras. About one year before the incident Raghavan returned to his house and demanded his share of the properties. This led to disputes between Pw.1 and Raghavan and the latter instituted a suit, O. S. No. 142 of 1957, in the Munsiff's court of Chowghat for partition. He obtained an order appointing a receiver for the properties but this was set aside in appeal. He had preferred a civil revision petition before the High Court and the same was pending when the incident, which has given rise to this case, happened on 21-8-1958. According to the Prosecution Pw.1 returned home from his grocery shop for taking the mid-day meal and after taking the same, he went to the southern verandah of his house where he lay down and slept. Accused 1 and 2 then conspired to murder Pw.1 in his sleep and the first accused proceeded to the southern side and attacked Pw.1 with a chopper, inflicting four incised injuries on his body. The second accused is stated to have been present close-by. On receiving the first cut Pw.1 woke up and when he tried to get up, he was attacked again, the last cut being inflicted when he had just got down from the verandah to the court-yard. The second accused is stated to have been present close-by. On receiving the first cut Pw.1 woke up and when he tried to get up, he was attacked again, the last cut being inflicted when he had just got down from the verandah to the court-yard. Accused 1 and 2 as well as some other relatives were, supporting Raghavan in the civil suit against Pw.1 and it is alleged that on account of such enmity the first accused who was obliged to live with Pw.1 did the act, abetted by the second accused. The incident happened at about 4 P.M. on 21-8-1958 and Pw.1 was removed to the hospital which he reached at about 5.30 P.M. The medical officer (Pw. 3) gave in formation to the Police, and the Sub-Inspector of Police went to the hospital but could not record a statement of Pw.1 as he was not in a fit condition to give one. Pw. 6, a neighbour and a first-cousin of Pw. 1, who had accompanied him to the hospital gave a statement (Ext. P7) to the Police on the basis of which the Police registered a case and started investigation. As the condition of Pw.1 was dangerous, his dying declaration (Ex. P3) was recorded by the Magistrate at 7.30 P.M. that night. The Police prepared a scene mahazar (Ex. P9) and recovered the chopper on information given by the accused. The case was duly charged before the First Class Magistrate, Trichur, who committed accused 1 and 2 to stand their trial. The learned Sessions Judge convicted the first accused and sentenced him as stated above. The second accused was acquitted. 3. That Pw.1 sustained injuries at about 4.30 P.M. on 21-8-1958 was not disputed. This fact is proved by the testimony of Pws.1 to 4 and 6 and the wound certificate (Ex. P5). It is seen from Ex. P5 that he had four incised injuries noted below: (1) An incised wound 6" in length right across the left axilla cutting the skin, superficial fascia, deep fascia, number of small blood vessels and nerves exposing all the axillary vessels and nerves and muscle tendons. (2) An incised wound 3" x 1/2" on the right side of the chest extending from the right sternoclavicular junction across the right clavicle. (2) An incised wound 3" x 1/2" on the right side of the chest extending from the right sternoclavicular junction across the right clavicle. (3) Another incised wound 41/2" in length with the skin, superficial and deep fascia cut off exposing a flap (flap 2") below the left lower jaw. (4). Another incised stab wound 1" x 1/2" deep on the posterior aspect of the left shoulder. According to the medical evidence these injuries could have been caused with a chopper like M.O.1. It is also in evidence that Pw.1 was in the hospital for over twenty days. 4. The most important question is as to who caused the injuries and in what circumstances. It was not disputed before me that it was the first accused who caused these injuries. In his statement in the committal court the first accused admitted that he cut Pw.1 with a chopper at the time and place men-toned in the charge. The questions put to the prosecution witnesses at the trial also show that this fact was admitted. However, when the first accused was questioned under S.342 he did not admit the same. Learned counsel for the appellant stated that the omission to raise the plea of self-defence in the statement under S.342 might have been due to the fact that he was answering a fairly long question. Whatever that be, the defence put forward here and in the court below was that the first accused acted in exercise of the right of private defence. According to the accused Pw.1 attacked him with a wooden pestle used for pounding rice and that it was to escape from the attack that he inflicted the injuries. The only question which therefore arises for decision is whether this plea of private defence has been made out. 5. Pw.1 supports the prosecution case fully. According to him the first accused was causing trouble in the peaceful enjoyment of the properties. He was sleeping on the southern verandah and he woke up only on receiving the first cut on his face. When he was attempting to get up he was again cut, on his chest and in attempting to ward off the third cut he sustained the injury near the arm-pit. The fourth injury on the back is alleged to have been sustained when he jumped into the court-yard. Pw. 2 is one of the two wives of Pw. When he was attempting to get up he was again cut, on his chest and in attempting to ward off the third cut he sustained the injury near the arm-pit. The fourth injury on the back is alleged to have been sustained when he jumped into the court-yard. Pw. 2 is one of the two wives of Pw. 1. She stated that while Pw.1 was sleeping, herself and the two accused persons were sitting on the northern verandah. Her son, Chandran, a boy of 5, then returned from school and the second accused asked her to give him some rice. Though she said at first that Pw. 4, the first wife of Pw.1 could give him food, she later got up and went to the kitchen. Chandran then went and told her that the second accused had handed over a chopper to the first accused. Apprehending some trouble she immediately proceeded to the southern verandah when she saw the first accused inflicting the last two cuts. According to her, accused 1 and 2 then left the place. Pw.1 attempted to follow them but when he reached the gate he fell down. It was urged on behalf of the appellant that Pws.1 and 2 being interested witnesses they should not be believed. Pw.1 is the best witness to speak about what happened after the first cut was inflicted. No doubt, feelings between Pw.1 and the accused were not cordial at that time. The fact that he did not pointedly say in his dying declaration that it was the first accused who inflicted the injuries is immaterial as the first accused does not deny the act. I consider it safe to act on the testimony of Pw.1 which is corroborated by Pws. 2 and 5 as well as circumstantial evidence. The incident happened on the verandah of the house, and Pw. 2 is a person who is likely to have been present in the house at that time. The mere fact of relationship is no ground for discarding her testimony. She denied the suggestion that Pw.1 was attacking the first accused with a pestle when the incident occurred. She was asked in cross-examination as to whether one of the wooden pestles in the house did not bear the mark of a cut with the chopper. The mere fact of relationship is no ground for discarding her testimony. She denied the suggestion that Pw.1 was attacking the first accused with a pestle when the incident occurred. She was asked in cross-examination as to whether one of the wooden pestles in the house did not bear the mark of a cut with the chopper. She denied that and said that on a former occasion her husband who was enraged at the conduct of the first accused beat on a cot with the pestle and that there was a mark due to this on the pestle. Pw. 5 is a neighbour and though he denied at the trial that he witnessed the attack with the chopper, he admitted the same when his testimony before the Magistrate was brought to his notice. Several reasons were urged for discarding his evidence. One was that the learned judge used his earlier statement as substantive evidence without going through the formalities prescribed by law. There is no substance in this contention because there was no need to use his earlier statement as he admitted the truth of the same. Another reason urged was that he was a petty fish-monger who used to carry on his trade on the road near Pw. 1's shop. It was also stated that none of the other witnesses saw him at the scene of occurrence. I do not think these reasons are weighty enough to reject his evidence. He too denied the alleged attack by Pw.1 on the first accused. 6. The plea of private defence is sought to be made out from the admission of Pw. 2 that one of the pestles in her house bore a mark. It is significant to note that the first accused had no marks of injury on his body even though his case was that he was beaten with the pestle. It is extremely doubtful whether he would have been in a position to inflict all these injuries if he had actually been attacked by a such younger man like Pw.1 with a wooden pestle. The medical evidence is that the second in jury must have been inflicted before Pw.1 stood up. The accused examined two witnesses to prove that when they came to the scene after the incident, they saw a pestle in the court-yard. Their evidence was read out to me and the same appeared somewhat artificial. The medical evidence is that the second in jury must have been inflicted before Pw.1 stood up. The accused examined two witnesses to prove that when they came to the scene after the incident, they saw a pestle in the court-yard. Their evidence was read out to me and the same appeared somewhat artificial. They were disbelieved by the learned judge, and I do not see any reason to come to a different conclusion. In these circumstances I hold that the plea of private defence has not been made out. 7. Learned counsel for the appellant also urged that even if the evidence was insufficient to prove the plea of private defence, it was sufficient to create a reasonable doubt regarding the same. I do not think that there is any scope for reasonable doubt. 8. In the nature of the injuries inflicted with a weapon like the chopper on the face, chest, etc., the learned judge rightly convicted the first accused under S.307, Indian Penal Code. The sentence cannot in the circumstances be said to be unduly harsh, even though the appellant is 65 years old. 9. In the result I confirm the conviction and sentence and dismiss the appeal. The bail bonds shall stand cancelled and the accused will be taken into custody to servo the sentence of rigorous imprisonment for five years. Dismissed.