Judgment :- 1. The two accused in Sessions Case No. 46 of 1959 of the Sessions Court of Quilon are the appellants. Appeal 279 is by the 2nd accused and 291 by the 1st accused. Both of them were tried for the murder of one Parameswara Kurup. The 2nd accused was convicted under S.302 and sentenced to suffer death subject to confirmation by this Court and the 1st accused was convicted under S.326 I.P.C. and sentenced to undergo rigorous imprisonment for 5 years. 2. The accused are "tree-climbers" by caste and they are brothers-in-law The 1st accused & the deceased were neighbours. The 1st accused was staying with his family in Kunnel purayidom as a tenant of the deceased who lived with his wife Pw. 2 in Kunnel House to the south of the purayidam. The accused and his people were cropping coconuts from the compound unauthorisedly and cultivating the land without the permission of Pw. 2 the owner of the property. The 2nd accused though he stayed elsewhere used to frequent the 1st accused's house and was an active party to the depredations of his brother-in-law. Pw. 2 had filed petitions before the Magistrate and the Police and also instituted a civil suit against the 1st accused and his family and in one of the criminal complaints the 2nd accused also figured as an accused. The feelings between the parties were very much strained on this account. On the date of incident, that is, 6th June 1959 the deceased Parameswara Kurup on his way back from Karunagappally where he had gone in connection with one of the suits filed against the 1st accused and others, alighted from the bus stand at Kochumavin Moodu Junction at about 1-30 P. M. After purchasing some fish and handing it over to his servant who was waiting for him, Kurup followed him. On the way he was joined by Pw. 3. They entered the Kunnel compound and when they reached the front yard of the 1st accused's house, Kurup stopped and plucked some maize plants that were cultivated by the 1st accused and handed them over to his servant to be given to his cattle. The prosecution alleges that the 1st accused and his wife who saw this from the courtyard abused Kurup for having destroyed their cultivation. Fearing that something untoward might happen Pw. The prosecution alleges that the 1st accused and his wife who saw this from the courtyard abused Kurup for having destroyed their cultivation. Fearing that something untoward might happen Pw. 2 came out and took away her husband to his house. The 1st accused and his people continued to abuse Kurup and it is alleged that hearing the abuses Kurup came out and advised them to stop doing it. The 1st accused and his wife were then standing at a distance of about 25 feet to the north-east of their house. The 1st accused was armed with a chopper. Just at that time the 2nd accused who also had a chopper with him ran up from the nearby paddy field shouting out to his brother-in-law "cut him, don't leave him," The prosecution alleges that the 1st accused then rushed towards Kurup and gave him a cut on the head with the chopper. Kurup attempted to ward off the cut. The 1st accused gave him three or four more cuts. Then the 2nd accused who had come up to the spot gave a deadly cut on the shoulder of Kurup. Kurup fell down and died at the spot. The accused are then alleged to have escaped from the place with their choppers. Pw. 3 immediately went to Kurup's father Pw.1 and reported the matter. He first went to the scene and then proceeded to the Karunagappally Police Station and gave Ext. P-1 statement. The accused were arrested on the 8th by Pw. 17 the Sub-Inspector of Police and the chopper used by the 1st accused was recovered from his sister's house and the chopper of the 2nd accused was recovered from the house of his sister. 3. In the preliminary enquiry court both the accused denied the charge, but before the Sessions Court the 1st accused admitted having cut Kurup with a chopper and pleaded that he did so in exercise of the right of self-defence. He stated that Kurup had come in a quarrelsome mood and destroyed his maize cultivation and when his wife protested Kurup got exasperated and abused her and got into his house and belaboured his aged mother who was on her bed. Kurup pulled her out into the court-yard. He himself was ill and was sleeping by the side of his little child who was also in bed. Kurup pulled her out into the court-yard. He himself was ill and was sleeping by the side of his little child who was also in bed. Kurup kicked the child and caught hold of him and beat him. Seeing the child being kicked he intervened and was beaten again. Pw. 3 who was with Kurup intervened and took Kurup to the Kunnel house, but a little later Kurup returned with a dagger. When the women of the house tried to obstruct him he belaboured them. The accused's mother-in-law was caught hold of and forcibly kept under the armpit of Kurup. Kurup then rushed towards him to stab him. It was at that juncture that he picked up the chopper that was lying there and dealt some cuts on Kurup. He admitted the ownership of M. 0.1 chopper and the recovery of it from his sister's house. The existence of civil and criminal cases between him and Kurup was admitted by him, but according to him there was no estrangement of feelings on that account. He denied that the 2nd accused had anything to do with the incident. The 2nd accused completely denied the charge and his presence at the scene of incident He denied that the chopper M. O. II belonged to him. 4. The death of Parameswara Kurup as a result of the injuries sustained by him is not disputed and is well-established. Ext. P-18 is the post-mortem certificate issued by Pw. 15 who conducted the autopsy. Six incised injuries are noted in the certificate of which the first one is a gaping incised penetrating wound 10" X 4" on the right side of the chest and neck. The clavicle and five ribs underneath as well as the right lung and the external jugular vein were cut. According to the doctor that injury was necessarily fatal and death must have been instantaneous. The other injuries were also grievous. The cause of death was syncope due to shock and haemorrhage as a result of the injuries. 5. The clavicle and five ribs underneath as well as the right lung and the external jugular vein were cut. According to the doctor that injury was necessarily fatal and death must have been instantaneous. The other injuries were also grievous. The cause of death was syncope due to shock and haemorrhage as a result of the injuries. 5. In the nature of the defence plea the questions that arise for determination in the case are (i) whether injury No.1 which was the fatal wound was caused by the 2nd accused or whether all the injuries were caused by the 1st accused as alleged by the defence and (ii) whether the injuries were inflicted in the exercise of the right of private defence and if so whether the right was exceeded. 6. The actual witnesses to the incident are Pws. 2, 3, 6 & 7 Pws.13 & 14 were also cited as eye-witnesses, but they do not admit having witnessed the incident. Pw. 13 is the wife of the 1st accused and Pw. 14 is the wife of the 2nd accused. Pw. 13 swears that in the afternoon of 6th June 1959 she, her husband, sister, mother-in-law and her children as well as the 2nd accused's wife were in her house. The deceased Kurup and Pw. 3 had pulled out their maize cultivation. She told them that they were cultivated for feeding the children and should not be destroyed. Then Kurup got into the house where her husband, mother-in-law and her child were lying sick. Kurup destroyed the pots in the house and kicked the sick child. The mother-in-law was pulled by the leg and thrown out into the courtyard and her husband was severely beaten and fisted. Then Pw. 3 intervened and took Kurup away. After a little while Kurup came back with a dagger declaring that he would do away with everybody. Seeing this her husband got out with the chopper. She did not actually see her husband cutting Kurup, but she saw Kurup lying injured in the courtyard and being removed by Pw. 3 and another from there. Pw. 14 admitted that she had gone to the house of the 1st accused in the morning and remained there till about 30 clock when she returned to her house. She did not actually see her husband cutting Kurup, but she saw Kurup lying injured in the courtyard and being removed by Pw. 3 and another from there. Pw. 14 admitted that she had gone to the house of the 1st accused in the morning and remained there till about 30 clock when she returned to her house. She denied that the 2nd accused had gone over to the scene of incident and said that she saw him only three or four days after the incident. However she admitted that M.O.2 chopper belonged to them. 7. Pw. 2 is the widow of the deceased. She swears that her husband and Pw. 3 were returning home from Karunagappally along the frontyard of the accused's house and on the way her husband plucked one or two maize plants and walked on when the 1st accused and the women of the house got out and abused him in foul language. Accused 1 was then armed with a chopper. Seeing the weapon she got frightened and took her husband and shut him up in a room. The maize which was plucked was given to their buffalo. When she left the place for the kitchen she heard the sound of the door being opened. The accused were then continuing to shower abuses. Kurup waved his hand by way of requesting them not to abuse him. At that time the 2nd accused who ran up from the eastern paddy field with a chopper in his hand shouted out "don't leave him, cut him; cut him". Hearing this the 1st accused cut Kurup on his head with the chopper. On receiving the cut Kurup tottered a few steps when the 1st accused gave him three or four cuts on the hands and cheek. By this time the 2nd accused had come up to the place and he too gave a cut to Kurup on his shoulder and neck with the chopper. Kurup was about to fall when Pw. 3 supported him, but after taking a few steps to the north Kurup fell down and died. After that the 1st accused went to his house and destroyed some pots by breaking them in the courtyard and the 2nd accused left the place. Pw.3 whose presence at the place is not disputed by the defence fully corroborates the evidence of Pw. After that the 1st accused went to his house and destroyed some pots by breaking them in the courtyard and the 2nd accused left the place. Pw.3 whose presence at the place is not disputed by the defence fully corroborates the evidence of Pw. 2 and gives a full version of the incident in all its details. He swears that Kurup on his way back from Karunagappally stepped into his house to give him a letter and later both of them proceeded to Kurup's house. On the way Kurup plucked some maize plants from near the 1st accused's house and handed them over to a boy. At that time accused 1 and his wife came out and abused Kurup in foul language. Hearing this Kurup continued to pluck more plants and fearing that something untoward might happen he and Pw. 2 took Kurup to his house. The witness describes the incident, in the same terms as Pw. 2. He swears that immediately after the stabbing, he proceeded to the house of Kurup's father (Pw. 1) and conveyed the information to him. Pw. 1, who gave the First Information Statement, corroborates the evidence of Pw. 3. He swears that Pw. 3 had gone over to his house at about 3 P. M. and told him that his son was cut to death by accused 1 and 2. On going to the spot he found his son lying dead with injuries. It was also mentioned by him in Ext. P1 that Pws. 3, 6 and others had witnessed the incident. Pw. 6 is one who lives about 30 feet from the scene of incident. He swears that while he was taking his noon meals he heard the 1st accused using foul language and asking somebody to come out. When he turned south he saw Kurup going towards the accused's house. The 2nd accused was seen running from the field with a chopper crying out "don't leave him; cut him". Then the 1st accused gave a cut on Kurup's head with a chopper. The witness also speaks about the other cuts inflicted by the 1st accused as well as the fatal cut by the 2nd accused on receipt of which Kurup fell down and died, Pw. 7 is a Muslim who lives within half a mile of the scene of incident. The witness also speaks about the other cuts inflicted by the 1st accused as well as the fatal cut by the 2nd accused on receipt of which Kurup fell down and died, Pw. 7 is a Muslim who lives within half a mile of the scene of incident. On his way back to his house after attending betrothal ceremony in the house of one of his relations he got into a betel shop, when he heard a quarrel. When he turned that side, he saw the 1st accused and two or three women abusing Kurup. Accused 2 was then running up to the place with a chopper in hand. Fearing that the 2nd accused was going to create trouble he called out to him so that he may stop. Without taking heed the 2nd accused proceeded shouting out "don't leave him; cut him". Then the 1st accused gave one cut on the head of Kurup followed by three or four cuts on the hands, face and other parts. By this time the 2nd accused who had come up gave a cut on the chest of Kurup with the chopper which made Kurup fell down and die immediately. 8. From the above evidence it is abundantly clear that it was the 2nd accused who gave the fatal cut and that the other cuts were inflicted by the 1st accused. Pw. 3 was admitted by the 1st accused to have been present at the spot. He witnessed the incident and proceeded to Pw.1 and conveyed to him the information that his son was cut to death by both the accused. It was on the basis of that information that Pw.1 gave. Ext. P1, the First Information Statement. There is absolutely no reason why all the witnesses should implicate the 2nd accused if as a matter of fact he had not done the act which is attributed to him. M.O.2 is a much heavier weapon than M.O.1 and the medical officer's evidence is also to the effect that the injury No.1 must have been inflicted by M.O.2 and not by M.O.1 which is much lighter weapon. As mentioned already the ownership of M.O.2 chopper is admitted by the 2nd accused's wife. Thus notwithstanding accused 1's admission that he alone inflicted injuries on the deceased, there is enough evidence to hold that it was accused 2 who inflicted the fatal wound. 9. As mentioned already the ownership of M.O.2 chopper is admitted by the 2nd accused's wife. Thus notwithstanding accused 1's admission that he alone inflicted injuries on the deceased, there is enough evidence to hold that it was accused 2 who inflicted the fatal wound. 9. The other question for consideration is whether accused 1 and 2 when they inflicted the cuts on the deceased were acting in exercise of their rights of private defence and if so whether they were within their rights. Though nothing has been brought out in the cross-examination of the witnesses to indicate that they have not actually witnessed the incident, taking their evidence as a whole there are indications that the deceased was in the aggressive on that day when he destroyed the maize plants of the accused in spite of the protest of the 1st accused's wife and that he came back to the place even after he was taken away by P. w. 3 and his wife. Though the witnesses would say that on hearing the 1st accused and his wife continuing to abuse him Kurup came out undisturbed and quietly asked them to stop abusing him, it is more probable that he must have come out infuriated and with a determination to take them to task for abusing him. The accused are tree-climbers by profession and no adverse inference could be drawn from the fact that both of them had choppers with them. It is only natural that the 1st accused could have apprehended some trouble at the hands of the deceased who rushed out infuriated from the room to which he was taken by his wife and P. w. 3. The deceased appears to have been showing some threatening gestures though P. w. 2, his wife would say that he was just waving his hand and asking accused 1 and his wife to stop abusing him. There is ample evidence to show that the deceased was resenting the action of the accused in cultivating the land and removing coconuts from the trees. Kurup was trying by petitions and civil and criminal proceedings to get the accused evicted from the property. Though Pw. There is ample evidence to show that the deceased was resenting the action of the accused in cultivating the land and removing coconuts from the trees. Kurup was trying by petitions and civil and criminal proceedings to get the accused evicted from the property. Though Pw. 2 would say that the maize was used by the accused only for feeding the cattle, it is clear that the accused's family considered it as a valuable cultivation and the 1st accused's wife may be believed when she says that she asked the deceased not to destroy the maize crops which were planted for the purpose of feeding their children. Pw. 3 admits that in spite of his protests to the deceased to stop destroying the maize plants the deceased continued to do so. Evidently the deceased was purposely destroying the plants thereby putting obstacles in the way of the peaceful occupation of the house by the accused. The accused who was aware of the hostile attitude of the deceased had a right to protest against the act of aggression of the deceased which he was not inclined to stop in spite of the remonstrations of the accused and his wife as well as Pw. 3. It was under those circumstances the 1st accused happened to use the chopper. The 2nd accused came running up from a distance on hearing the quarrel between his brother-in-law and the deceased and saw them at close quarters and involved in a quarrel. Admittedly the deceased was still on his legs when the 2nd accused arrived at the spot and considering the strained relationship between the accused and the deceased, the 2nd accused could also have apprehended danger to the 1st accused at the hands of the deceased and incidentally to himself who came to aid the 1st accused. The prosecution has made an attempt to bring out from the witness that the 2nd accused was rushing up shouting "don't leave him; kill him" and it was on hearing that shout that the 1st accused began to use the chopper. In view of the fact that Pw. 2 is the wife of the deceased, Pw. 3 is an employee and associate of his and Pw. 6 a defence witness in a case of bigami filed against Pw. 2 & Kurup which ended in the conviction of Pw. In view of the fact that Pw. 2 is the wife of the deceased, Pw. 3 is an employee and associate of his and Pw. 6 a defence witness in a case of bigami filed against Pw. 2 & Kurup which ended in the conviction of Pw. 2 they are likely as contended by the defence, to be interested in the prosecution and it is quite possible that this part of the case was introduced with a view to increase the gravity of the crime. It is also seen that some pots were found broken in the courtyard of the 1st accused's house. The 1st accused's wife swears that it was the deceased who destroyed the pots and in view of the aggressive attitude taken by the deceased on that day, that appears to be more probable than the prosecution version that it was the 1st accused himself who destroyed the pots. Pw. 6 admits in cross-examination that the 1st accused had the chopper with him when the wordy quarrel between Kurup and the accused and his wife was going on for about three or four minutes. It was possible for the accused to have cut Kurup then and there if he wanted, and it was equally possible for Kurup to have got away from the place if he was in a mood to do so. That indicates that it was some further act on the part of Kurup like breaking the pots that prompted the 1st accused to make use of the chopper. Thus it can be seen from the prosecution evidence itself, that the deceased was in the aggressive and it was his aggressive acts that prompted both the accused to use the chopper. 10. It remains to be considered whether the accused were within their rights in causing the death of Kurup. The prosecution evidence is uniform that the deceased was not armed with any weapon and that neither of the accused had actually sustained any injuries. So there is no justification for the accused to have inflicted so many grievous injuries so as to cause the death of Kurup. They have clearly exceeded their right of private defence. 11. The prosecution evidence is uniform that the deceased was not armed with any weapon and that neither of the accused had actually sustained any injuries. So there is no justification for the accused to have inflicted so many grievous injuries so as to cause the death of Kurup. They have clearly exceeded their right of private defence. 11. It follows therefore that even though the cut inflicted by the 2nd accused resulted in the death of Parameswara Kurup, such act comes within Exception II to S.300, I.P.C. Hence the conviction of the 2nd accused for the offence of murder punishable under. S.302 is not sustainable and he can be convicted only for the offence of culpable homicide not amounting to murder and punishable under S.304, I.P.C. In view of the seriousness of the injury caused by him, the conviction must be under the first part of that section. We think that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. So far as the first accused is concerned, he has been convicted under S.326 I.P.C. and sentenced to undergo rigorous imprisonment for 5 years. Even though the death of the victim was caused by the cut inflicted by the 2nd accused, the cuts inflicted by the first accused were also very serious and one of those cuts had caused a fracture of the skull. He too has exceeded his right of private defence in inflicting the cuts on Parameswara Kurup. The 2nd accused's conviction under S.326 has only to be confirmed. The State has not preferred any appeal against such conviction. The State has also hot moved for the enhancement of the sentence awarded to the first accused. Hence the conviction of the first accused under S.326 I.P.C. and the sentence of 5 years' R. T. awarded to him are left undisturbed. In the result the Criminal Appeal 279 is allowed to the extent indicated above and is dismissed in other respects. The conviction of the 2nd accused under S.302 I.P.C. and the death sentence awarded to him by the learned Sessions Judge are set aside and the 2nd accused is convicted under the First Part of S.304, I.P.C. and sentenced to undergo rigorous imprisonment for a period of 10 years. The Referred Trial is also disposed of in these terms. The conviction of the 2nd accused under S.302 I.P.C. and the death sentence awarded to him by the learned Sessions Judge are set aside and the 2nd accused is convicted under the First Part of S.304, I.P.C. and sentenced to undergo rigorous imprisonment for a period of 10 years. The Referred Trial is also disposed of in these terms. The conviction of the first accused under S.326, I.P.C. and the sentence of 5 years rigorous imprisonment awarded to him are confirmed and the appeal 291 is dismissed.