Judgment :- 1. Accused 1 & 2 in Sessions Case No. 4 of 1958 on the file of the Sessions Court, Ernakulam are the appellants. They are brothers. The first accused was convicted under S.304 Part 1 and 326 of the Indian Penal Code for causing the death of one Krishnan by stabbing him with a knife and for causing grievous hurt to Pw.1 and sentenced to rigorous imprisonment for seven years for the former offence and three years for the latter, the sentences being directed to run concurrently. The second accused was convicted under S.324 of the Indian Penal Code for having caused hurt to Pw. 4 by hitting him with an iron rod. 2. The prosecution case is as follows: 3. The accused belong to the Kudumbi caste. The 1st accused deserted his wife and the father of his wife complained to the Kudumbi Association, which summoned the 1st accused and his father, (Pw. 5) to make an amicable settlement. In spite of the pressure of the Association, the accused did not bring back his wife. So they excommunicated the 1st accused and his family from the Association and from the Community. The 1st accused was employed as a watcher in a mill at Cochin. He comes only on Saturdays to his house at Parur. When one day he came to his house as usual his mother informed him that some one threw stones at their house and that Pw.1 and others were responsible for it. On 15-3-58, a Saturday the accused as usual came to his house and there was a wordy quarrel, between the 1st accused and one Madhavan belonging to the same community, in the night. In this connection Narayanan, the President of the Kudumbi Association, had to interfere. At about 8 p. m. on 16-3-58, Pw.1 and other members of his community were taking their bath in the temple tank, when the second accused at the behest of the 1st accused informed Pw.1 that the 1st accused wanted to have a talk with him. Pw.1 said that he would go and meet him after his bath. After bath Pw.1 went to the path-way on the northern side of the 1st accused's house and called him. The 1st accused came out and immediately gave a blow to Pw.1 on his cheek alleging that he was the person responsible for throwing stones at his house. Pw.1 said that he would go and meet him after his bath. After bath Pw.1 went to the path-way on the northern side of the 1st accused's house and called him. The 1st accused came out and immediately gave a blow to Pw.1 on his cheek alleging that he was the person responsible for throwing stones at his house. The blow was returned and there was a scuffle. The 1st accused caught hold of the private parts of Pw.1 & then Pw.1 bit the 1st accused on his thigh. After this scuffle the 1st accused wriggled himself free from the grips of Pw.1 and ran into his house. Pw.1 followed him. Pw. 3 a neighbour was approached by Pw.1 with a requisition for sparing a chopper. Pw. 3 refused to give it. Thereupon Pw.1 went to the accused's house and dragged out Pw. 5, the father of the accused from the varandah. Then the 1st accused came out with a knife and stabbed him several times. The deceased Krishnan then came and requested the 1st accused not to stab Pw. 1. The 1st accused stabbed Krishnan on his chest and back. Krishnan fell down and died shortly afterwards. The 1st accused then went away with the knife. On the way be was intercepted by Pw. 2, Nagan, the Secretary of the Kudumbi Association, who caught hold of the accused. The accused stabbed him also once. Pw. 2 then proceeded to the 1st accused's house, where he saw Pw.1 injured and the deceased Krishnan lying in the court-yard with bleeding injuries. Pw. 4, the brother of Krishnan, heard about the incident and came there, when the second accused came out of the house with an iron rod and gave him a blow on his head. 4. The 1st accused stated before the Sessions Court that when he was seated on the eastern varandah of his house, Pw.1 and Madhavan came and called him out and asked him why he spread the news that they threw stones at his house, and then beat him. He ran into his house, and after a while he heard his father crying from the eastern side. He got out when Pw. 1, Madhavan, the deceased Krishnan, and Pw. 4 Dudachan beat him black and blue and bit him on his right thigh. Then he drew out his knife and brandished it. He ran into his house, and after a while he heard his father crying from the eastern side. He got out when Pw. 1, Madhavan, the deceased Krishnan, and Pw. 4 Dudachan beat him black and blue and bit him on his right thigh. Then he drew out his knife and brandished it. He does not remember whether the knife hit anybody. 5. From the prosecution evidence and the defence plea, the authorship of the injuries on Pw.1 and the deceased is clearly fixed on the 1st accused. The dispute is only as regards the circumstances under which the injuries were inflicted. 6. The learned Sessions Judge has discussed the prosecution evidence in detail and has found that the prosecution version was subjected to many changes. He found that Pws.1, 2 and 4 are not telling the entire truth of what happened on that fateful day and that the so-called dying declaration of Pw.1 is a tissue of falsehood. He has listed a large number of variations and discrepancies in Para.9 of the judgment. There is no definite basis for finding that events happened as mentioned by the prosecution witnesses. When a prevaricated and twisted version is put forth by the prosecution, the accused should have been acquitted on that ground alone. 7. Even on the findings entered by the learned Sessions Judge, the accused are entitled to an acquittal. After considering the evidence, the lower court has found that Pw.1 was on the aggressive, that Pws.1 and 2 and others got inside the house and assaulted the accused and broke mud pots, the pieces of which were noticed by Pw. 19 the Circle Inspector of Police. The learned judge has further found that the accused was justified in inflicting the injuries on Pw. 1, Krishnan and others to prevent them from causing harm to himself and to the other members of his family including Pw. 5, his aged father. However, according to the judge as Pws.1, 2, 3, 4 and the deceased were not armed with any deadly weapons, the accused could not have entertained any reasonable apprehension of grievous hurt or death to himself or others, and as such he was not justified in causing the death of Krishnan and causing grievous hurt to Pw. 1. We are unable to agree with the view taken by the learned Sessions Judge. 1. We are unable to agree with the view taken by the learned Sessions Judge. He has also stated that "when an accused pleads that he has committed some crime in self-defence it is for him to prove it". He ignores that the burden of proof is still with the prosecution and that in this case particularly as the accused has not admitted the commission of any crime. Even where the right of private defence is not pleaded, if the court finds on the evidence before it that the accused acted in the exercise of his right of private defence, he has to be given the benefit of it. 8. Before coming to the circumstances under which the accused was compelled to stab Pw.1 and the deceased, we may refer to the statement given by the accused to the police within an hour and a half of the incident. Ext. P-17 is that statement. In Ex. P17 he has stated that at about 8 p.m. while he was in his house, Pw.1 called him out to the path-way in front of his house and fisted him in his abdomen and pushed him down. Madhavan who accompanied Pw.1 also fisted him on the back and then he beat them in return and wriggled out of their grip and ran home. A little later he heard theory of his father, who was seated on the varandha and came out and saw Pw.1 beating his father. The deceased and Pws. 3 and 4 were also there. When he attempted to stop Pw.1 from beating his father, the deceased pushed him down and Pw. 4 beat him. He was grappling with them on the ground and Pw.1 was biting him on his thigh (Pw.1 IRC-r fOa-pMD WaM-yO-fP-°M WMa-DO). When he found that he could not extricate himself, he took out the knife and brandished it against them and ran away to the north. On the way he was caught hold of by Pw. 2 and he stabbed him also and ran and fell on the bank of a channel. The accused is an illiterate man and the version given by him so soon after the incident appears to be a natural one without any embellishment. 9. The wound certificate of the 1st accused contains the following injuries: 1. 2 and he stabbed him also and ran and fell on the bank of a channel. The accused is an illiterate man and the version given by him so soon after the incident appears to be a natural one without any embellishment. 9. The wound certificate of the 1st accused contains the following injuries: 1. A small circular abrasion about 3/4" in diammeter on the left side of the forehead about 1" above the junction of the outer and middle thirds of the left eyebrow. 2. A linear horizontal abrasion about 2" long on the anterior lateral aspect of the right arm in its lower part. 3. A linear contusion about 1" long on the anterior lateral aspect of the right arm in its upper part. 4. A circular contusion about 3/4" in diameter over the lateral aspect of the front of the left elbow. 5. A vertical contusion about 2" x 1/2" on the posterior medial aspect of the left forearm an inch above the wrist joint with three streaks of abrasions over it. 6. Irregular tiny abrasions (18 in number) on the anterior medial aspect of the right thigh in its middle enclosed in a circle about 2" in diameter. 7. A contusion about 3/4" wide seen all around the circle in injury (6). 8. An abrasion 1/2" in diameter on the front of the right leg in the middle line about 3" below the right knee. 9. A horizontal linear contusion about 11/2" long on the front of the right leg about 3" above the ankle joint. 10. A linear vertical abrasion 3" long on the posterior lateral aspect of the right thigh an inch above the knee joint, 11. A horizontal abrasion 1" long on the posterior medial aspect of the right thigh about 2" above the knee. 12. A linear vertical abrasion about 11/2" long on the front of the left leg in its middle. 13. A circular contusion about 3/4" in diameter on the right side of the back about 2" to the right and just below the interior angle of the right scapula. These injuries bear out the truth of the accused's version. As observed by the learned Sessions Judge, the prosecution evidence also is in support of it. Pw.1 after calling out the accused from his house and beating him follows him to his house. When he retreated, Pw. These injuries bear out the truth of the accused's version. As observed by the learned Sessions Judge, the prosecution evidence also is in support of it. Pw.1 after calling out the accused from his house and beating him follows him to his house. When he retreated, Pw. 1 breaks the mud pots and vessels and drags the aged father of the accused mercilessly from the verandh and molested him, after asking for a chopper from Pw. 3. These things clearly indicate that the accused had not the leisure to calculate the steps he should take in self defence. 10. The fact that the prosecution witnesses were not armed with dangerous weapons is no ground to find that the accused could not have apprehended death or grievous hurt. Death or grievous hurt can be caused without the aid of dangerous weapons when more persons than one are bent upon causing it. Pw. 1 was trying to get a chopper from Pw. 3 which attempt betrayed the object of the aggressive party. The dangerous situation in which the accused person was placed and not the use of dangerous weapons is the deciding factor. If a person is surrounded by 3 or 4 infuriated persons who assault him, apprehension of death or grievous hurt can very well be there. The standard of the cool bystander is not to be used, and the weighing of the right of self defence; in "golden scales" is not to be resorted to. Those who trespass into other persons' houses and man-handle the occupants, should have a fear that courts will be hesitant to place undue restrictions on the very valuable right of self resistance against unlawful aggression. All things told, we are of the view that this is a case in which the accused has not exceeded the right of private defence and is entitled to an acquittal. 11. The second accused is a boy aged. 18. The case against him is that when Pw. 4 came to the scene of occurrence, finding his brother Krishnan lying there with bleeding injuries asked for the 1st accused, he came out of the house with an iron rod and gave a blow on the head of Pw. 4. 11. The second accused is a boy aged. 18. The case against him is that when Pw. 4 came to the scene of occurrence, finding his brother Krishnan lying there with bleeding injuries asked for the 1st accused, he came out of the house with an iron rod and gave a blow on the head of Pw. 4. The second accused in his statement admitted that when his brother and father were being man-handled in his house by Pws.1, 2, 4 and others he had to give a blow to Pw. 4. But he did not admit that the weapon used was M. 0.4. The learned Sessions Judge convicted the second accused, because according to the prosecution witnesses he had inflicted the injury on Pw. 4 when the scuffle was over. As mentioned already, the learned Sessions judge himself has found that Pws.1, 2 and 4 are not telling the entire truth of what happened that day and that the so-called dying declaration of Pw.1 is a tissue of falsehood. As such there is no definite basis for finding that events happened as mentioned by the prosecution witnesses. Even granting that the second accused hit Pw. 4 after the major scuffle was over, the fact that Pw. 4 came into the accused's house and was enquiring about the 1st accused who had injured Pw.1 & the deceased, has to be taken into account. There was no knowing that Pw. 4 was not having any dangerous weapon with him. The dangerous situation in which the accused were placed in their own house by the angry trespassers bent on retaliation has to be given due weight. We think that the second accused was also justified in using force in self-defence and has also to be acquitted. 12. In the result, the appeal is allowed and the conviction and sentence passed against the accused by the learned Sessions Judge are quashed. The accused are acquitted of the offences charged against them. The bail bond of the 1st accused is cancelled. Allowed.