JUDGMENT S. Velu Pillai, J. 1. This is an appeal by the two accused who have been convicted by the Sessions Judge at Tellicherry. The case against them may be stated as follows :-- P. W. 1, his wife P. W. 3, his younger brother the deceased Joseph, and his sister P. W. 5, were living in the house of their parents, P. Ws. 4 and 6. Accused 1 and 2 are friends and associates. The first accused used to make fun of P. W. 5, who was an unmarried girl. It would appear, that the first accused had told Joseph, that P. W. 5 is a bad character, and this information had been communicated to P. W. 1. On the day of the occurrence in this case, which was the 25th December, 1958, at about 10 A. M., P. W. 1 was returning home after his bath in an adjoining river, when he met accused 1 and 2 on the public road. There ensued an altercation between P. W. 1 on the one hand and accused 1 and 2 on the other. The prosecution and the defence are not agreed as to the details of this incident, but it was common ground, that there was an altercation, and that after a time the parties separated. That day being the Christmasday, the two accused had been to Anakuzhi, to spend the day at the house of the second accused's brother. They were returning home along a pathway which lay across the garden, in which the house of P. W. 4 is situated. When they came near the house, they stopped and began abusing the women-folk of the house-hold, who were in the courtyard, being P. Ws. 3, 5 and 6. P. W. 1 was then working in a ginger garden, about fifty feet to the south, and he came there and remonstrated with the accused. The deceased, who was then at the tea-shop, a little to the north, also came and remonstrated with the accused. 2. The first accused then beat the deceased when P. W. 1 held him. The second accused then stabbed P. W. 1 on his back with a dagger, M. O. 5. When P. W. 1 released his hold on the first accused, the second accused stabbed him again, but he warded off the stab receiving it on his hands. 2. The first accused then beat the deceased when P. W. 1 held him. The second accused then stabbed P. W. 1 on his back with a dagger, M. O. 5. When P. W. 1 released his hold on the first accused, the second accused stabbed him again, but he warded off the stab receiving it on his hands. The first accused then pelted P. W. 1 with a stone on his left eyebrow, and when the deceased advanced and held the first accused, the second accused stabbed the deceased on the medial aspect of his right arm. The second accused then turned on P. W. 1 who was trying to advance towards the deceased, and stabbed him on his shoulder and on his forearm. P. W. 4 who had been away, came to the scene at about that time, and was stabbed by the second accused. P. Ws. 3, 4 and 5 then took part in the incident by pushing both the accused, and they retaliated. Then there followed mutual pelting of stones, in the course of which, the two accused sustained injuries. The second accused's mother then came there and took him home, the first accused following him. Both accused 1 and 2 spent the night in the second accused's house. Immediately after the occurrence, P.W.1, accompained by P. W. 4, proceeded to Alakode outpost, where P. W. 1 lodged the first information, Ext. P. 1, at 7-45 P. M. From there they were both sent to Taliparamba Government Dispensary, and on their way they collected the deceased in the jeep in which they were travelling. Before the deceased was examined by the medical officer, he had died. The case against the accused was registered and investigation commenced. 3. The two accused proceeded to the dispensary on the next day at about 10-30 A. M., and the medical officer noted their injuries and issued wound certificates. They were both arrested at about 11 A. M. and taken to the Police Station. Pursuant to information furnished by the second accused, the admissible part of which has been marked Ext. P. 16, the dagger M. O. 5 was recovered from the place at which it was hidden. The second accused then made a statement before the Police, Ext. P. 26, giving his version of the occurrence, upon which a case was registered, but it was afterwards referred as false. 4. P. 16, the dagger M. O. 5 was recovered from the place at which it was hidden. The second accused then made a statement before the Police, Ext. P. 26, giving his version of the occurrence, upon which a case was registered, but it was afterwards referred as false. 4. P. W. 1 had sustained five incised wounds as evidenced by Ext. P. 4, wound certificate, and he had been under treatment in the hospital for 24 days. These injuries were not severe. P. W. 4 had two incised wounds and four abrasions as evidenced by Ext. P. 5, wound certificate, and he was an in-patient for ten days in the hospital. On post mortem examination of the body of the deceased, it was noted, that there was an incised wound 3" long and 11/2" deep, about 21/2" below the axillary fold on the medial aspect of the right arm. It cut the axillary vessels and in the opinion of the doctor, death must have taken place very soon afterwards, and the injury was a fatal one. 5. The first accused had four lacerated wounds and one contusion as evidenced by Ext. P. 8 wound certificate, and the second accused had two contusions, a lacerated wound, two abrasions and an incised wound on the right palm. He complained, that he had sustained an injury on the left collar bone, and accordingly, he was examined by the doctor, D. W. 1, in charge of the Cannanore District Hospital, when it was found, that he had a fracture of the collar bone. Apart from the incised wound, on the palm of the second accused, the evidence shows, that the other injuries sustained by the two accused, including the fracture of the collar bone, could be caused by pelting with stones. 6. In Ext. P. 26 the second accused had given a version which completely exculpated him of the offences with which he has been charged, because he definitely stated, that the deceased and P. W. 1 were on the aggressive, and they were on the defensive all the time. He admitted having stabbed P. W. 1, and the deceased, but this was to defend himself and the first accused. He admitted having stabbed P. W. 1, and the deceased, but this was to defend himself and the first accused. In the statement of the two accused in the committal court, they admitted the altercation which took place in the morning, but had a different version to give concerning the occurrence of the evening. Their version was, that the two accused were returning along the pathway, and when they were in front of the house of P. W. 4, they were pelted with stones and the first accused then took to his heels. After he had run a distance, the deceased, who was hiding behind a tree, came forward and seized him, and called upon P. W. 1 to kill him, when P. W. 1 aimed a stab on the first accused, which hit the deceased accidentally and also the first accused. The deceased then released his hold, and the first accused escaped. He came to the road, and fell on the ground and when the second accused also arrived, both of them proceeded homewards. The second accused's statement in the committal court was, that when they were being pelted with stones, a little to the south of the residence of P. W. 4, P. Ws. 3 to 6 advanced towards him and attacked him; at that point of time, P. W. 4 called aloud, that the second accused must be killed, and when P. W. 1 came forward with a dagger he ran followed by P. W. 1. Then he turned on P. W. 1 and held him, and when he was about to stab him, he wrested the dagger out of his hands. P. W. 1 then hit him on the collar bone with a stone, when he waved the dagger. This was sufficient to release the hold, which P. W. 4 had on him, and then he escaped. The statements made by the two accused in the Sessions Court under S.342, Crl. P. C. did not vary substantially from their previous statements in the committal court, except that the first accused did not state before the learned Sessions Judge, that the deceased was accidentally stabbed by P. W. 1. 7. The learned Sessions Judge accepted the evidence adduced by the prosecution, and believing P. Ws. 1 and 3 to 6 came to the conclusion, that the occurrence started in the manner spoken to by these witnesses. 7. The learned Sessions Judge accepted the evidence adduced by the prosecution, and believing P. Ws. 1 and 3 to 6 came to the conclusion, that the occurrence started in the manner spoken to by these witnesses. He discounted the case set up by the defence on various grounds, and came to the conclusion, that the individual acts alleged against the two accused were committed by them. He also found, that the accused were actuated by a common intention, and accordingly convicted the second accused for the offence under S.326 I. P. C. for inflicting the stab wound on the deceased and sentenced him to undergo rigorous imprisonment for 5 years. He convicted the second accused also under S.324, I. P. C. for the injuries he had inflicted on both P. Ws. 1 and 4 and sentenced him to undergo rigorous imprisonment for a period of six months for each of the offences. Consistently with the finding as regards the common intention, the learned Judge convicted the first accused under S.326 read with S.34, I. P. C. and sentenced him to undergo rigorous imprisonment for 5 years and also under S.324 read with S.34, I. P. C. for the injuries caused to P. Ws. 1 and 4 by the second accused. 8. P. Ws. 1, 3 and 5 have spoken substantially to the case of the prosecution. P. W. 4 came there, only when the second accused was about to stab the deceased, and could not speak to what transpired earlier. P. W. 6 gave evidence only in a general way, and did not testify to the individual acts committed by the accused. If the testimony of these witnesses can be accepted, there is no question that the prosecution case is proved. P. W. 1 stands corroborated by Ext. P. 1, first information, which he gave within a short time of the occurrence. The defect in this is, that he seemed to have exaggerated his case some what when he stated, that accused 1 and 2 entered the house. The learned Public Prosecutor had an explanation, that this part of the statement could not be construed too literally, and suggested, that all that he might have meant to say was, that accused 1 and 2 advanced towards the house. This is acceptable. The learned Public Prosecutor had an explanation, that this part of the statement could not be construed too literally, and suggested, that all that he might have meant to say was, that accused 1 and 2 advanced towards the house. This is acceptable. The learned counsel, who appeared for the two accused in this appeal, advanced an argument, that the place of occurrence marked A and B on the plan, which are two points on the pathway, is not in consonance with the testimony of the witnesses. It must be admitted, that there is some confusion in this respect, for P. W. 1 stated, that as the accused came, they stopped about 40 to 50 feet away in front of his house; but he also said that the occurrence took place within a radius of 15 feet. This was not further clarified. P. W. 3, however, was definite, for she said, that the scene of occurrence was an area, 15 feet in radius, around the spot where the bloodstains were found ; this clearly refers to points A and B. She had also stated in cross examination, that the accused came below the courtyard, and was standing about 5 to 8 feet away from it. P. W. 5 stated, that hearing the abuse, she turned, and noticed the accused standing in front of the courtyard. P. W. 6 stated, that the accused came to the courtyard and abused them. It is seen from the plan, that points A and B are about 150 feet away from the house of P. W. 4. If the distances mentioned by these witnesses are to be taken strictly, there is a discrepancy. Their evidence on the whole is in support of the prosecution case, that the occurrence took place in the pathway, and not in front of the courtyard. Their evidence ought not to be taken too literally, when they refer to the courtyard and to the frontage of the house and cannot be treated as discrepant. Even in the statement of the first accused in the committal court, Ext. P. 31, he had admitted, that they came, and stopped a little to the south of the house of P. W. 4. There is no reason to doubt the testimony of these witnesses, that they came there, stopped near the house, and shouted abuses on the women-folk. Even in the statement of the first accused in the committal court, Ext. P. 31, he had admitted, that they came, and stopped a little to the south of the house of P. W. 4. There is no reason to doubt the testimony of these witnesses, that they came there, stopped near the house, and shouted abuses on the women-folk. It is also in evidence, that the first accused was very often making fun of P. W. 5 According to the first accused, he was doing much more than this, and there is also evidence to show that the first accused was more than ordinarily interested in P. W. 5. It seems to me, that on these discrepancies alone, the evidence of P. Ws. 1 and 3 to 6 cannot be rejected. 9. The accused also had a duty to establish a plausible theory of their right of private defence. That was a theory which they had from the very beginning, even from the time when Ext. P. 26 statement was made. It is only in the statements made in the committal court, and in the 342 statements, that the accused did not admit, having been responsible for the stab injury on the deceased and on P. W. 1 and P. W. 4. A question was raised before the learned Sessions Judge, but not before me, that Ext. P. 26 is not admissible in evidence, and cannot be used for any purpose whatever. Counsel was quite right in not taking this point of objection before me, because Ext. P. 26 is not a confession in any sense of the term. It is an exculpatory statement within the rule Narayanaswamy v. Emperor, AIR 1939 PC 47 . But Ext. P. 26 is admissible under S.21 of the Evidence Act as a piece of admission and can be used against its maker, that is, the second accused. It is not necessary to refer to the several decided cases on the subject, and it is sufficient to mention Dal Singh v. King Emperor, 44 Calcutta 876 at 885 in which the Privy Council treated a similar statement to the Police, by one who was in the position of an accused which did not amount to a confession, as an admission under S.21 of the Evidence Act. Another case in point is State v. Karthar Singh, AIR 1958 Allahabad 90 where the statement was used as an admission under S.21 of the Evidence Act, but it was also ruled, that the admission must be taken as a whole and cannot be dissected. The case of Sebastian David v. Sirkar Prosecutor, AIR 1950 TC 9 has been referred to by the learned Sessions Judge as a decision in point. My attention was drawn to an observation of the Supreme Court in Nisar Ali v. State of U.P., AIR 1957 SC 366 at 367 that a statement in an information laid before the Police, upon which a case was registered, by a person who was subsequently arrayed as an accused, cannot be used against him. The statement before Their Lordships was made by the second accused, and was to the effect, that the first accused had committed the crime. There was no question of using that statement as an admission, for there was none by the second accused, and their Lordships therefore did not consider the present question. I have no doubt that Ext. P. 26 can be used against the second accused as an admission under S.21 of the Evidence Act. Taking it as a whole, and not dissecting it into parts, it is quite clear, that the case now put forward by the second accused as also by the first accused when they were examined in the committal court, and when they were questioned under S.342, Crl. P. C. in the sessions court, is completely at variance with the case put forward earlier in Ext. P. 26. 10. The nature of the injuries sustained by the members of the two parties, also furnishes a circumstance in favour of the prosecution case. P. W. I, P. W. 4 and the deceased, had together sustained several incised wounds, and the second accused had only one incised wound on the palm of the right hand, which could easily be explained as having been caused accidentally, when he was using the dagger, and the first accused had no such injury. The learned counsel, who appeared for accused 1 and 2 contended that the injuries sustained by the accused, have not been satisfactorily explained by the prosecution. It is the prosecution case, that there was indiscriminate pelting of stones by P. Ws. The learned counsel, who appeared for accused 1 and 2 contended that the injuries sustained by the accused, have not been satisfactorily explained by the prosecution. It is the prosecution case, that there was indiscriminate pelting of stones by P. Ws. 3, 4, and 5 and this accounts for all except the incised wounds. I do not conceive, that it is the duty of the prosecution to do more than afford a reasonable explanation as to the manner in which the injuries were sustained by the two accused; this duty, the prosecution has discharged. It is quite true, that P. W. 2, the doctor, did not notice the fracture of the collar bone sustained by the second accused, notwithstanding his repeated assertions that he had sustained an injury in that part of the body and this was left to be elucidated only by D. W. 1 who examined him later. It is in evidence, that this injury too could be caused by pelting with stones. 11. The learned counsel also complained, that two witnesses mentioned in Ext. P. 1 had not been examined by the prosecution; P. W. 1 did refer to two witnesses -- Chacko and Chanthukutty -- specifically, but he also explained as a witness, that it was only his impression that they had witnessed the occurrence. P. W. 14, the Sub-Inspector of Police when questioned about it, said that he had interrogated these two persons, but no useful information relating to the occurrence could be obtained from them. The learned counsel complained, that none of the neighbours has been examined, but the Sub-Inspector of Police had questioned or interrogated the neighbours. If, according to the accused, any neighbour had witnessed the occurrence, they had also a duty to discharge in establishing the theory of the right of private defence, and it was up to them to examine him. 12. I therefore agree with the learned Judge in holding that P. Ws. 1 and 3 to 6 can be believed. The individual acts alleged to have been committed by the two accused must be found to be proved. The learned Judge then proceeded to hold, that the two accused were actuated by a common intention. Clearly, there could not have been a prior meeting of the minds. 1 and 3 to 6 can be believed. The individual acts alleged to have been committed by the two accused must be found to be proved. The learned Judge then proceeded to hold, that the two accused were actuated by a common intention. Clearly, there could not have been a prior meeting of the minds. The occurrence started all on a sudden, when accused 1 and 2 were passing along the pathway, and stood in front of the house, and abused the women. After P. W. 1 and the deceased remonstrated with them, there ensued a fight between the accused on the one hand and P. W. 1 and the deceased on the other. It seems to me, that these facts by themselves are not sufficient to raise an inference of a common intention. On the contrary, it is a case of the accused's having "developed only simultaneous and independent intentions" and not "a simultaneous consensus of their minds to bring about a particular result" in the language of the Supreme Court in Kripal v. State of U.P., 1954 CriLJ 1757. The view of the learned Judge, that the accused had a common intention cannot be sustained. 13. It therefore follows, that the accused can be convicted only for their individual acts. So far as the first accused is concerned, there is no conviction for his individual acts, of causing hurt to the deceased and to P. W. 1; he is therefore acquitted and set at liberty. The second accused's conviction under S.326 and 324, I. P. C. will stand. The sentences do not call for any modification, and are affirmed. The bail bond of the second accused is cancelled. The Criminal Appeal is disposed off as above.