JUDGMENT Anna Chandy, J. 1. Accused 1 and 2 in Sessions Case No. 36 of 1959 of Quilon Sessions Court are the appellants. They, along with one Xavier Peter who was the 3rd accused were tried for the offences punishable under Sections 302, 307, 324 and 109 I. P. C, in connection with the murder of one Kasmail and one George, a nephew of Kasraail's wife and the attempt to murder P. Ws. 1 and 2 both sons of Kasmail. The 3rd accused was acquitted by the learned Sessions Judge. The 1st accused was found guilty of murder and sentenced to the extreme penalty subject to confirmation by this Court. He was further convicted under Section 326, I. P. C. but no separate sentence was awarded under that count. The 2nd accused was found guilty under Section 304, Part II, I. P. C. and sentenced to undergo rigorous imprisonment for 7 years. He was also found guilty under Section 326, I. P. C. and sentenced to undergo rigorous imprisonment for 2 years with the direction that the sentences will run concurrently. 2. The 1st accused Antony is the son of the 3rd accused Peter. The 2nd accused Lorance is the son of a daughter of the 3rd accused. All of them live in the same house in Kozhithottam in Chavara. The 1st accused had married P.W. 7, Zabina, the daughter of the deceased Kasmail, some five years prior to the incident. A sum of Rs. 2,000/- was promised as dowry and as a security for which Kasmail had executed a hypothecation bond charging his properties. In spite of repeated demands by the 1st accused, the amount was not paid. This estranged the relationship between him and his wife. He ill treated her and even sent her away to her father's house, though he later brought her back. The day previous to the incident, the 2nd accused beat P. W. 7. The same evening at 8 P. M., P. W. 1 the brother of P. W. 7 happened to meet the 2nd accused near the Kozhithottam Church and chastised him for beating his sister. Though the 2nd accused did not retaliate immediately, the next day, that is on 6-4-1959 at about 8 or 8.30 when he saw P. W. 1 standing near the Kozhithottam bridge, he ran up to him and gave him a blow. Though the 2nd accused did not retaliate immediately, the next day, that is on 6-4-1959 at about 8 or 8.30 when he saw P. W. 1 standing near the Kozhithottam bridge, he ran up to him and gave him a blow. There was a tussle and both fell down. Some bystanders separated them. P. W. 1 started to leave the place when, accused coming up from behind, gave him a blow and ran away. P. W. 1 went home and reported to his father Kasmail about the assault on him by accused 1 and 2. The prosecution alleges that at about 9-30 P. M. Kasmail proceeded to the house of the accused to question them about the illtreatment of his daughter and the assault of his son. Kasmail met the 3rd accused in the courtyard of his house and there was an exchange of hot words between them. The 3rd accused then beat Kasmail with a stick and pushed him out of the compound. Accused 1 and 2 were also following them; accused 1 with a knife and accused 2 with a dagger. When they reached the northern boundary of the accused's compound and had taken a few steps into the adjoining property, the 1st accused suddenly stabbed Kasmail on the back with his knife. Kasmail fell down. Seeing that, his sons P. Ws. 1 and 2 and the deceased George came running up. When P. W. 2 bent down to lift up Kasmail, accused 1 stabbed him on the back. He too fell down. Then George knelt down to lift Kasmail and he was stabbed by the 2nd accused on his back. George fell down. Then P. W. 1 in his turn stooped to lift Kasmail and accused 2 gave him also a stab on the back. Then all the three accused escaped to their house carrying the weapons with them. It is alleged that P. W. 1 who had been stabbed, followed the accused to the house demanding that he too may be killed. He went up to the verandah and as the accused could not be found in the house, he returned and fell down at the place where the others had fallen. The neighbours who had gathered by this time, rendered first aid to the injured and removed them to the hospital. He went up to the verandah and as the accused could not be found in the house, he returned and fell down at the place where the others had fallen. The neighbours who had gathered by this time, rendered first aid to the injured and removed them to the hospital. On the way, they stopped at the Chavara Police Station, The Head-Constable in charge of the Station finding that the injured were in a grave condition, directed them to be taken to the Quilon District-Hospital. After making an entry in the General Diary, he also followed them to the hospital. By the time the police reached the hospital, Kasmail was already dead and George was not in a condition to speak. The statement of P. W. 2 was recorded by P. W. 28, the Circle Inspector of Police. It is the first information in the case and is marked Ext. P. 1. George expired at 1.30 on 7-4-1959. P. Ws. 1 and 2 were admitted as inpatients in the hospital. P. W. 1 was discharged on 1-5-1959 and P. W. 2 on 29-4-1959. 3. The accused were arrested on 23-4-1959. In Ext. D4, the Bail Application filed on their behalf, five days after the arrest, it was stated that when P. W. 1. reported about the assault on him by accused 1 to Kasmail and others who had gathered in a house near Kozhithottam Church in connection with a marriage, Kasmail, George, P. Ws. 1 and 2 and fifteen others armed with weapons went in a body to the house of the accused with the intention of wreaking vengeance. They surrounded the 3rd accused who was lying on the verandah and thrashed him. Seeing this, the 1st. accused apprehending that his father as well as himself would be killed, took out a knife and stabbed some of them. When questioned in the trial court under Section 342, Criminal Procedure Code, the 1st accused stated that the two deceased, P. Ws. 1 and 2, along with witnesses 24, 25 and 27 and one or two others came running from the north shouting. Seeing this, his wife Zabina said that none of them should stir out, and fearing that he would be killed, she took him to the southern room of the verandah and closed the door. From there, he heard his father's cry that he was being killed. Seeing this, his wife Zabina said that none of them should stir out, and fearing that he would be killed, she took him to the southern room of the verandah and closed the door. From there, he heard his father's cry that he was being killed. Then pushing his wife aside, he opened the door and came out. He saw seven or eight persons surrounding his father on the verandah beating him and fisting him. Apprehending that his father would be killed by them, he pulled out a knife and stabbed four or five of them. As soon as he took out the knife, P. W. 24 got out of the verandah and ran northwards followed by the others. His wife followed them with a lantern while he and his father got inside the house and then left the place by a side door. He admitted that he and the 2nd accused beat P. W. 1 near the bridge in the evening and added that P. W. 1 left the place vowing vengeance. The accused went on to state that after he reached home, he reported the matter to his father. His father told him that they may come to retaliate and advised them all to keep inside the house while he stayed in the verandah because he felt that being an old man none would harm him. It was while his father was talking that the deceased, P. Ws. 1 and 2 and others came in a body from the north shouting. Accused 2 and 3 completely denied having taken part in the incident. The 2nd accused supported the version given by the 1st and alleged that while the 3rd accused was advising all of them to keep inside the house, he, from where he was standing in the courtyard, saw some persons running towards the house making a loud noise. He ran into the kitchen. Within a minute, he heard his grandfather crying out that he was being killed and getting frightened, he slipped out of the house by the western door and escaped. The 3rd accused also endorsed the 1st accused's version. He ran into the kitchen. Within a minute, he heard his grandfather crying out that he was being killed and getting frightened, he slipped out of the house by the western door and escaped. The 3rd accused also endorsed the 1st accused's version. He stated that when accused 1 and 2 reported the incident to him, he told them that P. W. 1 and party may come to retaliate and that being an old man they may not harm him but he advised his sons to go inside the house. A little latter, a group of persons came up from the north shouting, got on to the verandah and started to assault him. He was kicked, fisted, beaten. He cried out that he was being killed and then he found his son standing nearby with a pen-knife and three or four persons in the group bleeding with injuries. The assailants left the house and went northwards while he escaped by the western door. 4. Kasmail died on the night of 6-4-1959 at 11 P. M. in the Quilon District Hospital. The post mortem was conducted by P. W. 9 and Ext. P. 8 is the post mortem certificate. A penetrating injury 1" x 1/2" on the back piercing the pleura and the lung was noted that injury according to P. W. 9 was necessarily fatal. George died in the hospital at 1-30 P. M. on 7-4-1959. Ext. P. 11 is the post mortem certificate issued by P. W. 10 who conducted the autopsy. Ext. P. 11 describes a penetrating wound 1" x 1/2" on the back and corresponding internal injuries to the lung and stomach. P. W. 10 was of opinion that the injury was necessarily fatal. P. W. 2 was treated by P. W. 10 and Ext. P. 15 is the wound certificate. He had a penetrating wound on the back. P. W. 1 was also treated by P. W. 10 who issued Ext. P. 15 wound certificate. It is noted in Ext. P. 15, that P. W. 1 also had a penetrating wound on the back. 5. It may be mentioned even at the outset that there are serious defects in the prosecution evidence. The case now sought to be proved is different in some material aspects from the case which is disclosed in the First Information Report and the early records. P. 15, that P. W. 1 also had a penetrating wound on the back. 5. It may be mentioned even at the outset that there are serious defects in the prosecution evidence. The case now sought to be proved is different in some material aspects from the case which is disclosed in the First Information Report and the early records. In their attempt to account for these differences, the prosecution has sought to prove certain circumstances which strike one as highly improbable. 6. The actual witnesses to the incident are the injured persons, P. Ws. 1 and 2 and P. Ws. 3, 4, 5, 8, 24, 25 and 26. The lower court has not relied upon the evidence of P. Ws. 4 and 5. We shall deal with the evidence of P. W. 2 first as he is the first informant in the case. Ext. P. 1 is the First Information State­ment given by P. W. 2 at 11-30 in the night and recorded by P. W. 28 the Circle Inspector. In Ext. P. 1, the witness had stated that when he was standing near the Kozhithottam bridge, passers-by told him that his father and the 1st accused were quarrelling. He ran up to the accused's house followed by P. W. 1 and George. When they came near the house of P. W. 24, he saw his father Kasmail going west through the compound where the incident took place. The first accused ran up from behind with an open knife and stabbed Kasmail on the back. Kasmail fell down on his face. All three of them, that is, P.W. 1. George and himself ran up to Kasmail and stooped down to lift him. Then the 1st accused stabbed him on the back. After that the 1st accused gave a stab each to P. W. 1 and George with the same knife. All three of them fell down. When P. Ws. 3, 25 and 26 who had witnessed the incident came near, the 1st accused escaped with the knife. Regarding the motive for the incident, he stated that because the Sthreedhanam promised at his sister's marriage was not paid, she was being ill treated by her husband and his people. According to him, it was when his father questioned the 1st accused about the constant ill treatment of his sister, that the 1st accused stabbed him. Regarding the motive for the incident, he stated that because the Sthreedhanam promised at his sister's marriage was not paid, she was being ill treated by her husband and his people. According to him, it was when his father questioned the 1st accused about the constant ill treatment of his sister, that the 1st accused stabbed him. In his testimony before the Sessions Court, he swears that he was standing near the Kozhithottam bridge when he heard that a quarrel was going on between his father and accused 3. He rushed to the place followed by P. W. 1 and George. There, he saw accused 1 stabbing his father. Seeing his father falling down on being stabbed, he went near to support him and was stabbed by the 1st accused on the back. He fell down on his face and a little later when he looked up, he found George and P. W. 1 lying nearby. The version given in Ext. P. 1, it will be noticed, is not in conformity with the prose­cution case which is that accused 1 stabbed Kasmail and P. W. 2, while accused 2 stabbed P. W. 1 and George. The evidence given by P. W. 2 in court differs in many respects from his statement in Ext. P. 1. In Ext. P. 1 he had stated that he heard some one say that accused 1 and his father were quarelling whereas in court he states that the quarrel was between his father and accused 3. Further in Ext. P. 1 the presence of accused 2 and accused 3 is not mentioned while in his evidence before court he is sure that he saw both accused 2 and accused 3 standing nearby, accused 2 armed with a dagger and accused 3 with a stick. Again in Ext. P. 1 it is definitely stated that it was accused 1 who stabbed all four of them whereas the witness now swears that when he looked up after he had fallen on the ground, he saw P. W. 1 and George lying near him. When he was asked whether both of them had any injuries, he said he was not in a position to note that, because he was unconscious. When he was asked whether both of them had any injuries, he said he was not in a position to note that, because he was unconscious. When he was asked for explanation as to why he stated that it was accused 1 who stabbed P. W. 1 and George, he said that because he and his father were stabbed by the 1st accused, he inferred that the others must also have been stabbed by the 1st accused. We do not think that these contradictions can be dismissed as insignificant. They can only be considered as the result of a conscious attempt to explain away his earlier state­ment which was not in conformity with the prosecution case. 7. The evidence of P. W. 1 is equally unreliable. He swears that at about 8-30 P. M. on the date of the incident, he was beaten by accused 1 and accused 2 in retaliation for the beating he had given accused 2 the previous day. The witness then went directly to his house and reported the matter to his father, Kasmail. His father advised him to forget the matter. Kasmail then went out of the house while the witness sat down for his meal. After taking his food, he proceeded to the Kozhithottam bridge. There he heard that his father and accused 3 were quarrelling. He, P. W. 2 and George ran to the place. He saw accused 1 stabbing his father. When Kasmail fell down, P. W. 2 went near to lift him up and accused 1 stabbed P. W. 2 on the back. Then George ran up and tried to lift up Kasmail and accused 2 stabbed George on his back. Seeing this, the witness approached and was bending down to lift Kasmail when he was stabbed by accused 2. After the stabbing was over, the three accused went to their house. The witness followed them declaring that it would be better if he also were killed. He got upto the verandah but since he could find no one there, he returned to the place where the other injured lay and fell down there. The learned advocate for the appellant has pointed out that the witness had given a different version when questioned by the police. He got upto the verandah but since he could find no one there, he returned to the place where the other injured lay and fell down there. The learned advocate for the appellant has pointed out that the witness had given a different version when questioned by the police. Before the police, he had stated that as soon as he reported the assault to his father, his father rushed off to question the accused about it and the witness, P. W. 2 and George ran after Kasmail to the accused's house. As this version seems to probabilise the defence case that the four injured persons and some others came in a body to retaliate for the assault on P. W. 1, it was justifiably contended by the learned counsel for the appellant that the witness spoke to a different story in the court only for the purpose of suppressing a circumstance favourable to the accused. As already noted, the prosecution case is that the stabbing took place in the compound adjoining that in which accused's house is situated, while, according to the defence, the stabbing took place in the verandah of the house. Ext. P. 3, scene mahazar, notes that blood stains were found on the verandah. The prosecution has sought to explain these blood stains by the highly improbable story that P. W. 1 after having been stabbed followed the accused to their house demanding to be killed and having got on to the verandah returned and fell down at the place where the others lay injured. Further, this incident finds no place in Ext. P. 1 statement given by P. W. 1. The incident if true would have been so remarkable that P. W. 1 would never have forgotten to mention it to the police. The contradiction noted in the different versions of how his father reacted to the report of the assault on his son and the improbability of his story of having sought death, are matters which go to the root of the case. It is not clear how the learned Sessions Judge dismissed them as of little significance. 8. P. W. 3 is a neighbour and the only witness examined in the case who is not related to the deceased. He swears that hearing Kasmail and the 3rd accused quarrelling, he got out of his house and saw the first accused stabbing Kasmail from behind. 8. P. W. 3 is a neighbour and the only witness examined in the case who is not related to the deceased. He swears that hearing Kasmail and the 3rd accused quarrelling, he got out of his house and saw the first accused stabbing Kasmail from behind. Kasmail fell down. When P. W. 1 ran up and attempted to lift Kasmail up, the 1st accused stabbed him also. He saw accused 2 and 3 standing close by, the 2nd accused armed with a dagger and the 3rd accused with a stick. The 1st accused's wife, Zabina was also standing near the fence. She was shouting out to the accused not to do anything more. He says, having seen so much, he felt giddy and went back to his house. After some time when he looked out, he saw all the four injured being removed from the place. When he was questioned by the police, he had not mentioned the fact that accused 2 and 3 were present and that they were armed with weapons. The version given by the witness in court that he saw Kasmail being pushed by the 1st accused was also not mentioned by him when questioned by the police. Further it appears improbable that if the accused wanted to attack Kasmail, they would have pushed him all the way from the courtyard of the house to the next compound and then stabbed. If P. W. 1 and P. W. 2 are to be believed, the quarrel between accused 1 and Kasmail had gone on for more than fifteen minutes before the stabbing took place. If that be so, then P. W. 3 who is the nearest neighbour should have come to know about it. However, P. W. 3 does not say that he heard any quarrel or exchange of words before he saw accused 1 stabbing Kasmail. The only noise he heard was the 1st accused saying "They will be coming." Ext. D1 is the copy of the judgment in a criminal case filed by the son of the witness against accused 1, 3 and another brother of the 1st accused which ended in the acquittal of the accused. There was also a counter case in which the witness's son figured as the accused. Thus there appears to be some ground for the defence contention that there is ill feeling between the accused and the witness. There was also a counter case in which the witness's son figured as the accused. Thus there appears to be some ground for the defence contention that there is ill feeling between the accused and the witness. This circumstance taken along with the conscious attempt made by the witness to implicate accused 2 and 3, though he had not mentioned anything about them in his earlier statement to the police, indicate that it is not safe to act upon his evidence. 9. P. W. 8 is the next eyewitness. He lives two furlongs away from the place and admittedly the deceased George had married a cousin of his. P. Ws. 1 to 3 do not speak to his presence at the scene nor is his name mentioned in the First Information Statement, among those who, had witnessed the incident. In the reexamination, an attempt was made to bring out that he is related to the 3rd accused through his grandfather, but when further questioned about it by the defence, he had to admit that he had absolutely no direct information about the alleged relationship. His uncle, who is a neighbour and to whose house he is alleged to have gone, is not cited as a witness. He gives the same version of the incident as P. Ws. 1 and 2. He says that he heard the 3rd accused and Kasmail quarrelling in the courtyard and saw accused 1 and 2 standing closeby. After some time, they moved a little to the north and the 3rd accused beat Kasmail with a stick and pushed him on to the next compound. At the scene of incident they again resumed the quarrel. Then he saw Zabina standing there with a lantern requesting the accused not to stab her father. It was then that the 1st accused stabbed Kasmail and the rest of the incident followed. The witness says that when P. W. 1 got injured, he followed the accused and got upon the verandah demanding that he too should be killed. Then P. W. 1 returned and fell down at the scene of incident. He is the only witness who states that P. W. 1 actually got into the verandah. The others say that P. W. 1 went near the verandah or near the house. Then P. W. 1 returned and fell down at the scene of incident. He is the only witness who states that P. W. 1 actually got into the verandah. The others say that P. W. 1 went near the verandah or near the house. Several contradictions have been brought out between his evidence in the Sessions Court and the statement in the committal court and to the police. It is not necessary to go into them in detail in view of the main defects in his evidence already mentioned. 10. The other eyewitnesses are P. Ws. 24, 25 and 26. P. W. 24 is the brother-in-law and P. W. 25 is the brother of Kasmail. P. W. 26 is the brother of George. All of them swear that hearing the quarrel between the 3rd accused and Kasmail in the courtyard of the accused's house, they came out and witnessed the incident. They give the same version of the incident as P. W. 8. It is the case of the accused that these three witnesses were present in the house of P. W. 22 along with Kasmail when P. W. 1 went there to report about the assault on him and that all of them proceeded in a body to the accused's house and assaulted the 3rd accused. Though they denied the allegation, the evidence of P. W. 22 was that when he returned home after witnessing the assault on P. W. 1, he saw Kasmail, George and P. W. 2 in his house. He admitted that immediately afterwards P. W. 1 came there running. In appreciating the evidence of these three witnesses, certain admissions made by P. W. 5 have to be borne in mind. P. W. 5 stated that he was at the scene of incident till the injured persons were removed from there to the hospital and that until they were removed, none of the relations of Kasmail or George went over to the scene or rendered any first aid to the injured. These witnesses also do not say that they went near the injured persons or helped them in any way. If as a matter of fact they had witnessed the incident or were anywhere near the scene of incident, it is certain that they would have rushed up to render some help or other to their near and dear relations. These witnesses also do not say that they went near the injured persons or helped them in any way. If as a matter of fact they had witnessed the incident or were anywhere near the scene of incident, it is certain that they would have rushed up to render some help or other to their near and dear relations. Their strange conduct indicates that either they were not at the scene or that they are purposely not disclosing their actions with a view to thwarting the defence case that they took an active part in the incident. It is also significant that none of these witnesses are stated to have accompanied the injured either to the hospital or to the police station. It is strange that none of these witnesses cared to interfere when they found four of their relations being stabbed one after the other. There is also intrinsic evidence in the statement of these witnesses to show that they are highly interested in the prosecution and are making conscious attempts to support the prosecution case. 11. We shall now deal with some of the circumstances relied upon by the learned counsel for the appellant in support of his contention that the incident could not have happened in the manner now alleged by the prosecution. It has come out in evidence that there was ill feeling between the first accused and his people on the one hand and Kasmail and his sons on the other, due to the failure of Kasmail to pay the promised Sthreedhanam to P. W. 7, and the constant pressure exerted by the 1st accused for its payment. The day previous to the occurrence, the 2nd accused beat P. W. 7 and a few hours later at 8'O clock in the night, P. W. 1 retaliated by beating accused 2. P. W. 1 in his turn was beaten by accused 1 and 2 at about 8. 30 P. ML. the next day, and P. W. 1 left the place expressing his determination to avenge the insult. He is seen to have proceeded straight to his father and reported the incident to him. Thus it is clear that the motive was for P. W. 1 and his party to retaliate and not so much for the accused to beat up the other party. He is seen to have proceeded straight to his father and reported the incident to him. Thus it is clear that the motive was for P. W. 1 and his party to retaliate and not so much for the accused to beat up the other party. The failure to mention this proximate cause of the trouble in the First Information Statement given by P. W. 2 is evidently a purposeful suppression. It is not that P. W. 2 did not say anything about the history of trouble. He mentions about the non-payment of the Sthreedhanam amount and the consequent ill treatment of his sister and stated that it was because his father scolded the 1st accused for ill treating his wife that the 1st accused had stabbed his father to death. The incident which provided the immediate motive for the occurrence was within the knowledge of P. W. 2 and so the definite statement made by him that he was not aware whether there was any motive other than his father's complaint about the ill treatment of P. W. 7 seems to have been made purposely to hide the immediate cause of the incident which if disclosed would necessarily lead to the inference that P. W. 1 and party must have been in the aggressive. 12. From the very beginning, the accused's case was that the incident took place in their house, This is probablised by the presence of blood on the verandah of the house. The scene mahazar Ext. P. 3, mentions that blood stains were found in the northern portion of the verandah. The prosecution would try to explain the presence of blood by saying that P. W. 1 had, after sustaining the injury at the scene of incident, pursued the accused to the house demanding that he should be killed. Having got into the verandah and not finding the accused, he returned to the scene of incident and lay down near the other injured persons. As already noted, this incident is not mentioned in Ext. P. 1. It is not likely that a person would pursue his assailants demanding to be killed. It is also equally strange that he should have got on to the verandah and then returned to the place where the other injured were, and lay himself down at the self same spot where he had been stabbed. P. 1. It is not likely that a person would pursue his assailants demanding to be killed. It is also equally strange that he should have got on to the verandah and then returned to the place where the other injured were, and lay himself down at the self same spot where he had been stabbed. It looks as if this story is made solely for the purpose of explaining the presence of blood on the verandah. This inference gains strength from his failure to mention having gone to the verandah when he was first questioned by the police. On the other hand, he definitely stated that he fell to the ground as soon as he was stabbed. The failure of P. W. 1 to mention the incident to the police assumes greater significance when it is seen that the Circle Inspector questioned him only after he had gone to the scene of incident and noted the bloodstains on the verandah. None of the accused got injured and no explanation was forthcoming in the First Information Statement for the presence of blood in the accused's house. These circumstances must have attracted the attention of the Circle Inspector and it is unlikely that he did not attempt to elicit some explanation for them. 13. If, as it is now suggested, the accused were waiting, prepared for a fight, and the quarrel started in the courtyard of their house, one would expect the attack to have taken place there itself. But it is seen that Kasmil was pushed off all the distance to another compound to be stabbed at a place where the witnesses had gathered with lights. Even more artificial is the manner in which the other three persons are alleged to have been injured. After Kasmail had fallen to the ground, the other three come one after the other in a veritable procession each one coming to the same spot and bending down to receive one stab each on the back from the accused who stand ready with daggers. On the other hand the accused's version, that he stabbed four or five times in an attempt to disperse the persons whom he found surrounding and attacking his father who was lying down, fits in better with the location of the injuries and also the fact that they got just one stab each. 14. On the other hand the accused's version, that he stabbed four or five times in an attempt to disperse the persons whom he found surrounding and attacking his father who was lying down, fits in better with the location of the injuries and also the fact that they got just one stab each. 14. The manner in which all the four injured happened to come together at the place of incident also looks improbable. The witnesses do not give a consistent version about it. According to the evidence of P. W. 1 when he complained about the assault on him to his father, his father asked him to forgive his assailants. His father then went out of the house while he himself went to take his meal. After some time when he went back to the bridge where he was beaten, he heard that a quarrel was going on between the 3rd accused and his father. P. W. 2 and the deceased George also happened to be there and all of them proceeded together to the scene of incident and reached there just in time to see the father being stabbed. In Ext. D5, his case diary notes, taken by the Circle Inspector of Police he has stated that as soon as he reported to his father about the assult on him, his father went off to the accused's house to question them about it while he, P. W. 2 and George ran after the father. The earlier version given by him is a more probable one and fits in with the defence case that Kasmail, George and P. Ws. 1 and 2 went in a body to the accused's house with a view to question them about the assault on P. W. 1. The accused's case is strengthened by the evidence of P. W. 22 who swears that Kasmail, George and P. W. 2 were in his house when P. W. 1 rushed up to report the assault on him. 15. The failure to mention the part played by accused 2 and 3 in the First Information Statement is another significant circumstance. In Ext. P. 1, P. W. 2 has made a definite statement that after having stabbed him and his father, the 1st accused with the same knife stabbed P. W. 1 and the deceased George. 15. The failure to mention the part played by accused 2 and 3 in the First Information Statement is another significant circumstance. In Ext. P. 1, P. W. 2 has made a definite statement that after having stabbed him and his father, the 1st accused with the same knife stabbed P. W. 1 and the deceased George. There is no mention of even the presence of accused 2 and 3. When he was asked about it in court, he stated that he did not see the actual stabbing but because it was the 1st accused who stabbed him and his father, he guessed that the other two might also have been stabbed by the 1st accused. However he is positive that he actually saw accused 2 and 3 at the spot, the 2nd accused armed with a dagger and the 3rd accused with a stick. If he saw accused 2 and 3 at the scene, it is unlikely that he would have failed to mention their presence when he made Ext. P. 1 statement. In Ext. P. 1 he stated that he went to the place of incident on knowing that the 1st accused and his father were quarrelling. However before court he is positive that it was the 3rd accused and his father who were quarrelling. Evidently this change has been purposely made with a view to probablise the present case that the third accused took an active part in the incident. 16. The inherent improbabilities of the prosecution case coupled with the highly interested nature of the prosecution evidence make it difficult for the court to find that the occurrence took place in the manner spoken to by the prosecution witnesses. On the other hand there is enough material to support the inference that it might have happened in the manner alleged by the defence. In this connection, it is to be observed that the approach made by the learned Sessions Judge in assessing the evidence in the case is not the correct one. The learned Sessions Judge narrated the prosecution evidence and held that the evidence is acceptable. No attempt was made to scan and sift the prosecution evidence in the light of the defence contention. The learned Sessions Judge narrated the prosecution evidence and held that the evidence is acceptable. No attempt was made to scan and sift the prosecution evidence in the light of the defence contention. Having accepted the prosecution case, the learned Judge rejected the defence case as not proved forgetting that while no burden is cast on the accused to prove positively the case set up by them, they are entitled to build up a case from favourable circumstances which appear in the prosecution evidence. 17. The accused surrendered themselves only seventeen days after the incident and by that time the investigation was almost complete. In Ext. D4, bail application, the accused came out with the definite case that the incident took place in their house, that the opposite party was in the aggressive, and that the 1st accused actually inflicted the stabs on all the four injured in an attempt to save his father and himself. The Circle Inspector of Police admits that none of the witnesses were questioned by him afresh after the filing of the bail application by the accused. It is admitted that five or six persons including a stranger one Dass were present in the accused's house at the time of the incident. None of them have been examined in this case. These persons are necessary witnesses and their evidence would have thrown light on the circumstances under which the incident took place. The prosecution could not have eschewed their evidence on the ground that they are related or interested because all the eyewitnesses examined in this case except P. W. 3 are closely related to the injured or the deceased in this case. It cannot be that they could not have seen the incident which took place at a distance of fifty feet from the accused's house as people who are examined as eyewitnesses say they saw the incident from greater distances. We feel that it is a case in which the evidence of the inmates of the house ought to have been made available to court. P. W. 7 the wife of the accused is the only inmate who is examined. Her evidence supports the defence case. We feel that it is a case in which the evidence of the inmates of the house ought to have been made available to court. P. W. 7 the wife of the accused is the only inmate who is examined. Her evidence supports the defence case. She swears that in the night when the 1st accused and the 2nd accused returned home, they told their father that they had beaten P. W. 1 and that the other party was making preparations to gather persons and come in a body to attack them. Then the 3rd accused asked all of them to get inside and added that he would keep outside as nobody would trouble an old man. She added while she was standing near the well she saw P. Ws. 1 and 2, Kasmail, George and four or five others coming towards the house. She asked them not to create trouble. Thinking that they would harm her husband, she pulled him inside a room and closed the door. Then she heard her father-in-law crying out. Hearing the cry, her husband pushed her aside and got out of the room into the verandah. Then she heard her father's cry and coming out she saw her father and brothers standing on the verandah with injuries. Her father and the other injured then got out of the house and walked up to some distance and fell down in the adjoining compound. She followed them with the lantern and saw them falling down. She added that she had narrated the entire incident as it was stated by her in court to the police when she was questioned. She was questioned by the prosecutor with reference to the case diary notes wherein she is alleged to have spoken in support of the prosecution version of the incident. Though she denied having made those statements, no question was put to the Circle Inspector who questioned her to bring out that she had then given a version contrary to the one she has given in court. 18. Some of the circumstances which were relied upon by the learned Sessions Judge to find that the defence case is not true may also be considered. The learned Judge takes the accused to task for not having" mentioned in the bail application the names of P. Ws. 24 to 26 among those who attacked accused 3. 18. Some of the circumstances which were relied upon by the learned Sessions Judge to find that the defence case is not true may also be considered. The learned Judge takes the accused to task for not having" mentioned in the bail application the names of P. Ws. 24 to 26 among those who attacked accused 3. In the bail application all the relevant details of the defence case are given including the fact that besides P.Ws. 1 and 2 and the deceased, there were also ten or fifteen others in their company. The failure of P. W. 7 to state that the injured persons who had come prepared for an assault were armed with any weapon is relied upon as an adverse circumstance. However the accused had stated both in the bail application and before court that the opposite party carried arms. Moreover they might have come not with the intention of stabbing or killing any one, but only for the purpose of chastising accused 1 and 2 for having beaten P. W. 1 and it is quite possible that having failed to find them they turned on the old man who was the only one to be seen outside. The presence of blood in great quantity in the compound and in a lesser quantity on the verandah and the absence of trail of blood from the verandah to the alleged scene of incident is yet another circumstance adversely commented upon. The description in the mahazar indicates that blood was found here and there over some portion of the verandah. The absence of trail of blood could be explained by the fact that it is a sandy place and many persons had gathered there. The presence of more blood in the compound may be due to the fact that the injured persons lay there for some length of time till they were removed to the road. In any view the absence of a proper explanation for the presence of blood in the verandah cannot be met by picking holes in the defence case. 19. From the foregoing discussion of the evidence, it is clear that the prosecution has not succeeded in establishing its case. The early records do not show that accused 2 had taken any part in the incident. 19. From the foregoing discussion of the evidence, it is clear that the prosecution has not succeeded in establishing its case. The early records do not show that accused 2 had taken any part in the incident. Accused 1 has admitted that he was responsible for the stab injuries but the prosecution has failed to prove its version of the circumstances under which accused 1 did the stabbing. On the other hand there are enough indications int he evidence to show that the accused's version of the incident is nearer the truth. 20. The only question that remains to be considered is whether the accussed's action in stabbing four persons, two of them fatally, exceeded the limits of his right to defend the life of his father. It is seen that a body of persons which consisted at least of the four injured persons, trespassed at night into the accused's house witht he avowed purpose of wreaking vegeance for hte earlier assault on P.W.1. The accused trying to avoid trouble, hid himself in a room while his father stayed outside in the belief that his age will save him from harm. According to accused 1 he heard his father crying out that he was being killed and when he came out into the verandah, he saw a number of persons kicking and fisting this father who was lying on the floor. The father is an old man aged 63 and it is quite reasonable to expect that such a severe manhyanding if not stoped immediately, might result in his death. The accused could also have expected that after dealing with his father the assailants would turn their attention to the other inmates of te house. The accused says he then stabbed three or four prsons in an attempt to disperse them. It is difficult to see what other course the accused could have adopted to put a stop to the attack, for any milder form of interference would not only have failed to save his father but would have endangered his life also. The fact that all the four injuries were on the back and the fact that each person had only one wound, indicate that the accused's intention was nothing more that to disperse quickly and effectively the persons who were attacking his father. The fact that all the four injuries were on the back and the fact that each person had only one wound, indicate that the accused's intention was nothing more that to disperse quickly and effectively the persons who were attacking his father. Under these circumstances it cannot be said that the accused acted in excess of his right of private defence. 21. In the result, the conviction entered against the appellants and the sentences imposed on them are set aside and they are acquitted. they will be set at liberty forthwith. The Criminal Appeal and the Reference are disposed off a indicatede above.