JUDGMENT : P. GOVINDA MENON, J. 1. Accused 1 and 2 in Sessions Case No. 23/59 on the file of the Sessions Judge, Alleppy are the appellants. The 1st accused has been found guilty under S. 302 I.P.C., and sentenced to rigorous imprisonment for life and the second accused was found guilty under S. 324 I.P.C., and sentenced to rigorous imprisonment for one year. Originally there were 9 accused in the case. Accused 3 to 9 have been acquitted of all the charges. 2. The prosecution case briefly stated is as follows: The accused in the case with some others owned a fishing net. The deceased Sextus also owned a similar fishing net. Pws. 1 to 3 and 16 and 17 are employees under the deceased Sextus. They were all residing in the beach and engaged in the profession of fishing. In the afternoon of 18-12-58 both these fishing nets were taken and spread in the sea for catching fish. The two nets accidentally got interlocked as a result of which the nets got damaged and there was an exchange of words between the deceased Sextus on the one hand and accused 3 and 4 on the other side. The next morning also when they spread their nets, they got inter-locked and it is the prosecution case that the accused sustained damages to the net and did not get any fish. After drawing the nets that day morning it is stated, accused 2 to 9 formed themselves into an unlawful assembly and started abusing the labourers of Sextus who were collecting fish from their net. Pw. 2, one man from Sextus group had gone to take a basket for collecting the fish and was returning with the basket. Seeing Pw. 2 the second accused abused him and Pw. 2 abused him in return. The second accused then pushed Pw. 2 and Pw. 2 gave the second accused a slap on his cheek. Then, it is stated, the second accused took a dagger and stabbed Pw. 2 on his chest. Pw. 2 then cried out & Pws. 3 and 4, the brothers of Pw. 2 & the other labourers rushed up to the place. There was then a free fight between the two parties. While the fight was going on, the deceased Sextus came from the east and asked them to stop quarrelling. 2 on his chest. Pw. 2 then cried out & Pws. 3 and 4, the brothers of Pw. 2 & the other labourers rushed up to the place. There was then a free fight between the two parties. While the fight was going on, the deceased Sextus came from the east and asked them to stop quarrelling. At the same time the 1st accused is alleged to have come up to the scene from the north saying “what are you saying; if you are done away with the whole quarrel will end”. So saying he wrested the dagger from the second accused and stabbed Sextus 3 or 4 times. Sextus warded off the stabs by his left hand and fisted the first accused on his abdomen with great force, which forced the 1st accused to sit down. Sextus is again said to have tried to pacify the fight that was going on. By this time the 1st accused rose up and inflicted a fatal stab on the left side of the chest of Sextus. On receipt of this injury he fell down. 1st accused then took to his heels. While the 1st accused was proceeding Pw. 7 who was in the fight gave 2 or 3 blows to the 1st accused with a stick in his hand. Then all the accused ran away from the scene. Sextus was removed to the boat to be taken to the hospital, but he passed away in the Vallam and hence he was taken back to his house. Pw. 2 who was injured was then taken to the hospital. Pw. 1 went to the Kuthiathodu police station and gave Ext. P1, first information statement at 10 a. m.; within about 2 hours after the occurrence Pw. 24, the Sub Inspector of police then proceeded to the scene. On getting information Pw. 25, the Circle Inspector also reached the spot. He held the inquest. At about 4-30 p. m., accused 1, 2 and 5 appeared in the police station. Pw. 23 the head constable recorded the statement of the 1st accused and they were all arrested. Pw. 18, the medical officer conducted the postmortem and issued Ext. P17 postmortem certificate. Pw. 2 also was examined and Ext. P18 is the wound certificate issued to him. Pw. 11 another medical officer examined Pws. 4, 5, 6, 7, 8, 15 and 17 and granted certificates. Pw. Pw. 18, the medical officer conducted the postmortem and issued Ext. P17 postmortem certificate. Pw. 2 also was examined and Ext. P18 is the wound certificate issued to him. Pw. 11 another medical officer examined Pws. 4, 5, 6, 7, 8, 15 and 17 and granted certificates. Pw. 25 charged both the cases. In the counter case which was also tried by the same Sessions Judge in Sessions Case No. 34/59 the learned Sessions Judge acquitted all the accused. The learned Judge as stated earlier acquitted accused 3 to 9 on the ground that there was no unlawful assembly and that the overt acts attributed to them have not been proved. The learned Judge held that it was proved that it was the 2nd accused who inflicted the injury on Pw. 2 & found him guilty under S. 324 I.P.C. Similarly the learned Judge held that it was proved that it was the 1st accused who inflicted the fatal injury on Sextus and found him guilty under S. 302 I.P.C. 3. It is not disputed that Sextus sustained injuries and died as a result of those injuries. Pw. 18 is the medical officer and he proves Ext. P17 the postmortem certificate. Ext. P17 shows that Sextus had sustained 6 injuries. Injury No. 1 is a penetrating wound 1” x 1/4” on the right side of the chest 2 1/2” above and medial to the right nipple going upwards and medially between the 2nd and 3rd ribs cutting the pectoralis muscles, intercostal muscles, right pleura-upper lobe of the right lung, going 3” deep into the lung tissue towards the hilum. On dissection the doctor found an incised wound l”x 1/4”x 3” going towards the hilum of the right lung. This the doctor says is a continuation of injury No. 1. He says the injury was fatal and sufficient in the ordinary course of nature to cause death and that the deceased had died of shock and haemorrhage as a result of these injuries. 4. The question for consideration is whether these injuries were inflicted by the 1st accused. The case of accused 1, 2 & 5, the three brothers were that they were going to the tea-shop, that morning and while reaching the tea-shop marked in the plan Ext. P14, Pw. 7 called out “here they are coming” and then the deceased Sextus and Pws. The case of accused 1, 2 & 5, the three brothers were that they were going to the tea-shop, that morning and while reaching the tea-shop marked in the plan Ext. P14, Pw. 7 called out “here they are coming” and then the deceased Sextus and Pws. 16 & 17 came out of the toddy shop. Deceased Sextus beat the 1st accused four or five times on his head with an oar in his hand. Accused 2 & 5 were attacked by the companions of Sextus. As a result of the blows it is stated that the 1st accused fell down senseless and did not know what happened subsequently. 5. The prosecution seeks to prove their case of murder by the evidence of Pws. 1, 5 to 10 & 16. Out of this Pws. 1, 9 & 10 are the disinterested witnesses. Pw. 1 is the manager of the deceased in charge of the fishing net. He says that on the morning of the date of incident he was supervising the collection of fish when accused 2 to 9 started abusing them. He pacified his workmen. Pw. 2 who had gone to get a basket to collect the fish was then coming and the second accused picked up a quarrel with him and after exchange of abuses, second accused pushed Pw. 2. Pw. 2 beat the second accused on his cheek. The second accused then whipped out a dagger from his waist and stabbed Pw. 2 on the left side of his chest. Hearing the cry of Pw. 2, Pws. 3 & 4 the brothers of Pw. 2 ran up to the scene, accused 3 to 9 also came there. Seeing this, Pws. 5 to 7 & 16 also went to the rescue of Pw. 2 and then there was a regular fight. At this juncture Sextus came from the east calling out his men to go away and not quarrel. The 1st accused then came from the north asking the deceased “what did you say, if you are killed everything will end.” So saying he wrested the knife from his brother, the second accused and stabbed Sextus 2 or 3 times. Sextus fisted the 1st accused which made him sit down. The 1st accused again got up and gave another forcible stab on the right side of the deceased’s chest and the deceased fell down. Sextus fisted the 1st accused which made him sit down. The 1st accused again got up and gave another forcible stab on the right side of the deceased’s chest and the deceased fell down. The 1st accused then ran away from the scene and while running Pw. 7 hit him on his head with the handle of an oar, the other accused also ran away. He then says he gave the statement Ext. P1 to the police. He also speaks about the quarrel on the previous day. Ext. P1 given at 10 a. m., by this witness immediately after the incident substantially corroborates his version in court. It is stated that he is after all an employee under the deceased, that in a prior case the deceased was a witness for Pw. 1 and as such his evidence is highly interested and ought not to be accepted. This by itself is not sufficient to reject the cogent and convincing testimony of Pw. 1. 6. Then there are 2 witnesses Pws. 9 & 10. They support the prosecution story in all its essential details. Pw. 9 was coming from the Pallithodu church on the south-eastern side of the scene of occurrence. He speaks about Pw. 2 going with a basket, the second accused quarrelling with him and stabbing him which resulted in a free fight and then the deceased coming to pacify and the first accused coming at that stage and stabbing the deceased. Pw. 10 also corroborates him. He is a neighbour residing on the south east of the place of occurrence at a distance of 200 feet. He says that when he was in his house he heard a quarrel near about the toddy shop and when he came to the scene of occurrence he saw Pws. 8 & 17 holding the hand of the second accused which held the dagger. He also speaks about a free fight going on there and at about that time Sextus coming from the east asking them not to quarrel and his seeing the 1st accused coming from the northern side, wresting the knife from the second accused and stabbing Sextus. 7. It is stated that Pw. 9 has admitted that the purayidom in which he resides belonged originally to the family of Panickka veedu to which family the deceased belonged. That by itself is no ground to discredit his evidence. 7. It is stated that Pw. 9 has admitted that the purayidom in which he resides belonged originally to the family of Panickka veedu to which family the deceased belonged. That by itself is no ground to discredit his evidence. As far as Pw. 10 is concerned it is stated that he is related to Sextus, that the sister of Sextus has been married by a member of this witness’s family. But it is seen that he is only a very distant relation of Pw. 10. It was also stated that the deceased Sextus was a member of a co-operative society in which Pw. 10 was the secretary on the date of the occurrence. Merely because the deceased happened to be a member of the co-operative society or that he is a distant relation is not sufficient to make the witness interested or biased in favour of the prosecution. All these 3 witness, Pws. 1, 9 and 10 are probable witnesses who would have been present at the scene. The imputation of interestedness is justifiable in cases where it is shown that the witnesses are inimically disposed towards the accused. Ordinarily it is only when it is established that there is either discord or hostility between the accused and the witnesses that the evidence of the witnesses become tainted. Similarly if there are other circumstances to throw doubt on the trustworthiness of the witnesses it may not be safe to rest a conviction on such evidence. In this case there can be little doubt that the evidence of Pws. 1, 9 and 10 are trustworthy and unimpeachable. The cross-examination do not disclose that any of them has either any particular bias in favour of the prosecution or is interested in falsely implicating the accused in the crime. We are convinced that every one of these witnesses spoke only to the things that they had seen. There is no reason suggested as to why the 1st accused should have been singled out as the person who stabbed the deceased if it were not the truth. He has been mentioned as the person who inflicted the fatal stab from the very beginning. 8. It was suggested that the brother of the deceased one Mr. Cleetus who is a Circle Inspector of Police must have been responsible for implicating the accused. There is no evidence that Mr. He has been mentioned as the person who inflicted the fatal stab from the very beginning. 8. It was suggested that the brother of the deceased one Mr. Cleetus who is a Circle Inspector of Police must have been responsible for implicating the accused. There is no evidence that Mr. Cleetus was there at the time when the incident took place, and even if he had come to the place knowing about the death of his brother, the complaint Ext. P1 implicating the 1st accused as the person who gave the fatal stab had already been made immediately after the incident. There is no particular motive also for Mr. Cleetus to implicate the 1st accused. Hence we find that there is no basis for this allegation. 9 It was also pointed out by the learned counsel for the appellant that injury No. 6 noted in Ext. P17 a contusion on the loin of the deceased has not been properly explained by the prosecution, and therefore the occurrence would not have happened in the way set up by the prosecution. It is true that the prosecution witnesses have not specifically mentioned how this contusion had been caused. But Pw. 18 the medical officer says that the injury could be caused by a fall on any hard substance. It has come out in evidence that Sextus fell down on the ground after sustaining the fatal injury. It may be, that while falling he would have come into contact with some stone which might have been there and that would explain the presence of the contusion. It has not been brought out in evidence that this could not have been so caused. Any way, this by itself would not be enough to throw doubt on the truth of the prosecution case which is otherwise cogent and convincing. Again it was pointed out that the direction and description of injury No. 1 in Ext. P17 would indicate that the prosecution story as brought forward could not be true. We cannot agree. This would depend on the respective position of the injured and the assailant and nobody could be expected on such an occasion as that to give with such minute exactitude the respective positions of the parties. P17 would indicate that the prosecution story as brought forward could not be true. We cannot agree. This would depend on the respective position of the injured and the assailant and nobody could be expected on such an occasion as that to give with such minute exactitude the respective positions of the parties. Certain contradictions and inconsistencies have also been pointed out between the evidence of these witnesses in the Sessions Court, in the committing Magistrate Court and in their case diary statement After scrutinising these we do not think that they are of such vital nature as would be sufficient to throw doubt on the truth of their evidence. An attempt was also made to show that the prosecution has not succeeded in explaining the injuries on the 1st accused and therefore the case as set up by the prosecution could not be true. The independent witnesses whose evidence we have accepted have sufficiently explained how the 1st accused happened to sustain the injuries. There is nothing improbable in their story, and we accept the same. 10. There is also the evidence of Pws. 5 to 8 and 16. They no doubt belong to the group of Sextus and must be taken to be interested in him, some of these were injured in the same occurrence and are accused in the counter case. They corroborate the prosecution story of the occurrence. Their presence on the spot and participation in the fight cannot be disputed. If their evidence stood by itself, it may have been open to the defence to say that on their evidence alone, conviction should not be sustained. But when we find that their evidence is amply corroborated in material particulars by the other independent evidence in the case, we do not find any justification to reject their evidence. Pws. 2, 3, 4 and 17 are the other persons who swear to the first part of the occurrence. 11. The prosecution has been able to prove a motive also for the accused to have committed the crime. There was the previous day’s quarrel between the 4th accused and Sextus. The Inspector’s evidence and the mahazar regarding the net of the accused Ext. P16 prove that there was some damage to the net of the accused. 11. The prosecution has been able to prove a motive also for the accused to have committed the crime. There was the previous day’s quarrel between the 4th accused and Sextus. The Inspector’s evidence and the mahazar regarding the net of the accused Ext. P16 prove that there was some damage to the net of the accused. No doubt the 1st accused was not present at the time of the previous day’s quarrel between the deceased and the 4th accused, but the 1st accused is a joint owner of the net and is a near relation of the 4th accused. These are sufficient motive for the 1st accused to have committed the crime. Even otherwise motive is of little importance when we have cogent and acceptable testimony of eye witnesses. 12. Now coming to the defence story, we have been taken through the evidence of the defence witnesses Dws. 1 and 2 and we are not prepared to say that they are witnesses of truth and we agree with the finding of the learned Sessions Judge that no reliance can be placed on their testimony. Adequate reasons have been given by the learned Judge to show how the witnesses are interested in the accused and how their evidence is untrustworthy. We do not propose to detail the reasons over again. It must also be remembered that this story has been put forward for the first time in the Sessions Court. There was no such case for the accused in the court of the committing Magistrate. 13. It was also sought to be made out that the deceased and the accused were already in the thick of the fight when the assault on Sextus took place and that it could not with certainty be said that the injuries were caused by the 1st accused. But the evidence of the eye witnesses make it clear that the deceased and the accused came to the scene only when the fight was going on and that the only thing that was done by the 1st accused was to stab the deceased. The attempt of the defence therefore to mix up this incident with the general fight is of no avail. The attempt of the defence therefore to mix up this incident with the general fight is of no avail. On a consideration of all the facts and circumstances of the case, bearing in mind the various criticisms levelled against the evidence by the learned counsel for the defence, we have no hesitation in coming to the conclusion that the prosecution has succeeded in bringing home the guilt to the 1st accused beyond any shadow Of doubt. It follows that the conviction of the 1st accused under S. 302 is correct and does not call for any interference. 14. Now coming to the second accused, besides the injured Pw. 2, we have the evidence of Pws. 1, 9 and 17 who speak to the stabbing of Pw. 2, by the second accused. Ext. P8 is the wound certificate granted for his injuries by the medical officer. We have already stated that we do not find any reason to reject the testimony of the eye witnesses examined in this case and we have accepted their evidence as true. This assault on Pw. 2 is the first thing that happened and it was after this stabbing that the general fight started. So the contention that Pw. 2 could have sustained the injuries in the course of the general fight and that it is not satisfactorily proved that it was the second accused who caused the injury on Pw. 2 cannot be accepted. But the learned Judge himself has found that there was no pre-arrangement on the part of accused 2 to 9 and that none of these accused are guilty of being members of an unlawful assembly. As there was no concerted action, it can only be taken as a chance encounter between Pw. 2 and second accused when there was an exchange of words and it was only when Pw. 2 gave the second accused a slap on the cheek that due to grave and sudden provocation the second accused took his knife and inflicted the stab injury on Pw. 2 Even though he will not be entitled to a complete right of private defence, the offence at any rate would only be one under S. 334 I.P.C., viz., voluntarily causing hurt on grave and sudden provocation. 2 Even though he will not be entitled to a complete right of private defence, the offence at any rate would only be one under S. 334 I.P.C., viz., voluntarily causing hurt on grave and sudden provocation. The conviction under S. 324 I.P.C., is therefore unsustainable and we find him guilty under S. 334 I.P.C. The sentence of rigorous imprisonment for one year under S. 324 is set aside. Under S. 334 I.P.C., we feel that a sentence of fine would meet the ends of justice. We therefore convict the second accused under S. 334 I.P.C., and sentence him to pay a fine of Rs.100. 15. In the result, the conviction and sentence passed on the 1st accused are confirmed and the conviction and sentence of the second accused under S. 324 I.P.C., are set aside and he is convicted under S. 334 I.P.C., and sentenced to pay a fine of Rs.100 in default to undergo rigorous imprisonment for one week. Time for payment of fine two weeks from this date.