JUDGMENT P.T. Raman Nayar, J. 1. This appeal is by the 1st and 4th of the five persons accused at the trial. All five were charged with murder. Accused 2, 3 and 5 have been acquitted altogether while accused 1 and 4 though acquitted of the charge of murder on the score that exception 2 to S.300 I. P. C. applied, have been convicted under the second part of S.304 I. P. C. and have each been sentenced to suffer rigorous imprisonment for seven years. (How an act which comes only within the second part and not within the first part of S.304 I. P. C. can ever come within the body of S.300 so as to require the aid of an exception to take it out of murder, is difficult to follow). Against the acquittals there is no appeal. 2. Accused 1 and 2 are brothers, and so are accused 3 and 4 who are distant cousins of accused 1 and 2. The 5th accused runs a betel shop near the 4th accused's rice mill, but otherwise there seems to be no connection between him and the remaining accused. 3. The prosecution case is briefly as follows : There was ill will between the accused on the one side and the deceased on the other because about ten months before the occurrence, which took place at about 5 P. M. on 19-1-1959, the deceased had taken back by force a cow he had hired to the 1st accused. Then, on 14-1-1959, five days before the occurrence, the deceased and PW 7 had beaten the 2nd accused's son, and the 2nd accused's son had lodged a complaint (Ext. P2) with the police. In this connection the Sub-Inspector of Police, PW 21, had gone on the locality on the morning of the occurrence and questioned the deceased. 4. The occurrence took place on the public road running east to west ] along the southern side of the market in the village of Thoravur. (Ext. P. 9 is a plan of the scene). There are a number of shops on either side of the road and the spot where the deceased was attacked and killed is just outside the 5th accused's betel shop on the southern side of the road. (Ext. P. 9 is a plan of the scene). There are a number of shops on either side of the road and the spot where the deceased was attacked and killed is just outside the 5th accused's betel shop on the southern side of the road. Just to the east of this is the 4th accused's rice mill, and about 30 yards to the west is the toddy shop to which the deceased, a tapper by profession, was attached. 5. PWs 1 to 4 are the eyewitnesses in the case. PW 1 was, at the time, a servant in the 5th accused's betel shop while PWs 3 and 4 were servants in the toddy shop. PW 2 was a servant in another betel shop about 40 yards to the west of the 5th accused's betel shop. 6. At about 4-30 P. M. on the day of the occurrence, the deceased beat his brother, PW 8, in the toddy shop and chased him when he was running away. Accused 4 and 5, who were at the time seated in the latters betel shop, took advantage of this to taunt the deceased by shouting to PW 8 to run for his life. PW 8 escaped and the deceased went back to the toddy shop. Half an hour later when the deceased was going eastwards, past the 5th accused's shop, carrying his tapper's knife in its case under his arm pit, the 4th accused asked the deceased why he had beaten his brother, and this led to a verbal altercation in the course of which the deceased abused accused 4 and 5 in vile language and attempted to draw his tappers knife from its case and use it against them. At once the 5th accused picked up the stick, M. O. 1, and beat the deceased with it On the back of his head with such force that the stick broke into pieces. At about the same time the 4th accused took the chopper, M. O. 2, and cut the deceased with it below his left knee. The deceased fell down, and his tapper's knife, M. O. 3, dropped to the ground. At about the same time the 4th accused took the chopper, M. O. 2, and cut the deceased with it below his left knee. The deceased fell down, and his tapper's knife, M. O. 3, dropped to the ground. Meanwhile the 1st accused, who was standing outside the 4th accused's rice mill very near the 5th accused's shop came to the spot, and he picked up M. O. 3 and cut the deceased with it on his right forearm below the elbow. Then accused 1, 4 and 5 ran away, accused 1 and 4 westwards and the 5th accused northwards leaving the deceased prone and helpless on the ground. 7. About 20 or 30 minutes later, accused 1 and 4 re-appeared on the scene accompanied by accused 2 and 3, the 1st accused armed with a pointed iron rod, the 3rd accused with the tapper's knife, M. O. 3, and the 4th accused with the chopper M. O. 2. They had a look at the deceased who was still lying face downwards on the ground, and then crying out. "Are you not dead yet", the 1st accused proceeded to beat the deceased mercilessly a number of times on the neck and back with the iron rod, occasionally using it as a sort of lance and stabbing the deceased in different parts of his body with the pointed end. The 4th accused, eager to play his part, turned the deceased face upwards and, apparently forgetting the chopper in his hands, wrested the iron rod from the 1st accused and used it on the deceased much in the same manner as the 1st accused had done. Not to be behind handed the 1st accused thereupon took the tapper's knife, M. O. 3, from the 3rd accused and cut the deceased in the same places as he had cut him earlier, namely, below his left knee and below his right elbow. Then satisfied with their work accused 1 to 4 went away westwards crying, "Now you are dead". 8. PW 1 saw the first incident from the 5th accused's shop where he was working at the time. He was frightened and he ran away eastwards and stationed himself at the road junction about 50 yards away, from where he watched the second incident. 8. PW 1 saw the first incident from the 5th accused's shop where he was working at the time. He was frightened and he ran away eastwards and stationed himself at the road junction about 50 yards away, from where he watched the second incident. PW 2 saw both incidents from the shop where he was working, about 40 yards to the west, while PWs 3 and 4 saw both incidents from the toddy shop about 30 yards to the west looking over the fence of the shop. After the accused had left the place they went one by one to the spot where the deceased was lying and found him dead. 9. PW 5, the elder brother of the deceased, learned of the occurrence at about 7 P. M. from PW 1 and from two other persons who are not witnesses. He went to the spot and saw the deceased lying dead with injuries. Then he proceeded to the Kuthiathodu Police Station, about three miles away, and at about 9-30 P. M. he made the report, Ext. P. 1, on which the case was registered and investigated. 10. PW 21, the investigating officer, went to the spot the next morning and held an inquest at which none of the eyewitnesses was examined. All of them were however examined later in the day. 11. The medical evidence shows that the deceased suffered eighteen injuries described thus in the post mortem certificate, Ext. P. 4: (1) Contusion 2"x2" with 4 skin abrasions on the forehead above the right eyebrow. (2) One curved incised wound with retracted edges 1/4'" long and 3/4'' deep on the forehead 1/2" above the inner end of the right eyebrow. (3) One incised wound with retracted edges 1/12" long completely cutting the pinna of the right ear at the upper end. (4) One linear contusion with abrasion 3" long and 1/2" wide extending from the right sygomatic bone to 1" of the lower end of the right year lobule with a punctured wound I" deep at the inner end of the contusion. (5) One contusion with linear abrasion 6" long on the left side of the root of the neck extending from 1/2" of the lower end of the left pinna of the ear to the right side of the right end curving upwards. (5) One contusion with linear abrasion 6" long on the left side of the root of the neck extending from 1/2" of the lower end of the left pinna of the ear to the right side of the right end curving upwards. (6) One contusion with abrasion on the right side of the root of the neck running horizontally outwards from hyoid bone 41/2" long. (7) An incised wound 11/2" long and 1/2" deep obliquely from above downwards over the lower jaw on the left side 1" from the mid-line with retracted edges and visible bone. (8) Closed fracture of the middle of the left humerus with deformity the upper fragment projecting forwards without rigormortis at the site. (9) One stab wound I" deep 1" above the lower end of the upper fragment in injury 8. (10) One stab wound 3/4" deep on the middle of the right upper arm. (11) An oblique incised wound on the medial side of the upper end of the right forearm 21/2" below the bend of the right elhow 6" long and 4" wide from before backwards with retracted edges cut ends of the muscles retracted and projecting and partly cutting in the ulna at the site of the injury (12) An oblique incised wound 1/2" below and parallel to injury 11, 6" long and 4" wide with retracted edges and muscles cut ends projecting and retracted cutting completely the right ulna and ulnar artery at the site of the injury. (13) An oblique incised wound before backwards 5" long and 5" wide on the outer side opposite to injury 12, with retracted edges and cut muscle ends projecting and retracted and completely cutting the radius and radial artery at the site of the injury. (14) Two stab wounds each 1/2" long and I" wide obliquely placed over the middle of the left thigh oval shape and 1" apart, the lower one 3" deep and upper 2" deep. (15) Two abrasions near injury 14. (16) Three stab wounds 21/2" below the injury 14 placed one above the other the upper 1/4" circular and 11/2" deep, the middle 1/4" oval and 3" deep and the lower 1" oval and 1" deep the edges of all retracted. (17) One stab wound 3/4" deep over the middle of the medial side of the right knee joint. (16) Three stab wounds 21/2" below the injury 14 placed one above the other the upper 1/4" circular and 11/2" deep, the middle 1/4" oval and 3" deep and the lower 1" oval and 1" deep the edges of all retracted. (17) One stab wound 3/4" deep over the middle of the medial side of the right knee joint. (18) One oblong incised wound 6" long and 5" wide at the widest part 4" below, the bend of the left knee joint across the outer and front of the upper part of the left leg extending from the inner to the outer side cutting the libia obliquely for 3" at the site and fragmenting and completely cutting the Fibula and anterior tibial artery at the site, the cut ends of the muscles retracted and projecting and edges retracted and smeared with sand. 12. Both at the preliminary enquiry and at the trial, the accused denied all connection with, or knowledge of, the occurrence and said that they had been falsely implicated because they were supporters of the Congress while the deceased and the eyewitnesses PWs 1 to 4 were either Communists or supporters of the Communist Party. The accused examined no witness in their defence. 13. So far as the first incident was concerned, the learned Sessions Judge held, on the basis of the prosecution evidence itself, that the accused had acted within their right of private defence. The evidence shows that the deceased was a drunkard and a bully and a desperate character who had been involved in many criminal cases and had suffered conviction under S.326 I. P. C. According to the learned Sessions Judge it was when the deceased was about to use his tapper's knife on accused 4 and 5 that the injuries suffered by him in the first incident were inflicted by accused 1, 4 and 5 and therefore accused 1, 4 and 5 acted as they did when they were under the reasonable apprehension that death or grievous hurt would otherwise be the result. This finding appears to be a fair finding on the evidence, and neither side has attempted to canvass it before me. 14. This finding appears to be a fair finding on the evidence, and neither side has attempted to canvass it before me. 14. With regard to the second incident, the learned Sessions Judge completely accepted the prosecution case that accused 1 and 4 went to the spot (accompanied by accused 2 and 3) about 20 minutes later and, finding the deceased lying half dead on the ground proceeded to kill him outright on the spot using an iron rod and the tapper's knife, M. O. 3. In the circumstances no question of private defence could conceivably arise, and, it is to say the least surprising that the learned Judge after having presumably found that accused 1 and 4 had caused the death of the deceased with murderous intent should nevertheless have held that Exception (2) to S.300 of the Indian Penal Code applied to reduce their offence to one under the second part of S.304 I. P. C. 15. In my view, however, the conviction of accused 1 and 4 cannot stand even if the evidence of PWs 1 to 4 is to be accepted at its face value. The learned Sessions Judge has not set out in his judgment the several injuries suffered by the deceased. Nor has he attempted to determine which of these injuries were suffered in the course of the first incident and which in the course of the second incident. But, reading the evidence of the doctor, PW 12, with the evidence of the eyewitnesses, PWs 1 to 4, it would appear that the injuries suffered during the first incident were injury No. 5, injury No. 18, and injury No. 11 or 12 or 13. Now according to the doctor, PW 12, injury No. 5 was by itself sufficient to cause more or less instantaneous death from shock, while the remaining injuries attributable to the first incident were together sufficient to cause death from haemorrhage, death in the normal course being a matter of about half an hour. Now according to the doctor, PW 12, injury No. 5 was by itself sufficient to cause more or less instantaneous death from shock, while the remaining injuries attributable to the first incident were together sufficient to cause death from haemorrhage, death in the normal course being a matter of about half an hour. And, although he at first said that all the injuries suffered by the deceased were ante mortem, he later confessed that the injuries could have been caused either before death or soon after death and that he was quite unable to say of any particular injury that it was either ante mortem or post mortem, in other words, that he was unable to affirm which of the injuries were really responsible for the death. Thus it would appear from the evidence of PW 12 that the injuries inflicted in the course of the first incident were by themselves sufficient to cause death within a short time of their infliction and that so far as the remaining injuries are concerned, it cannot be affirmed that they were inflicted before death and not shortly after death. If the accused committed no offence in inflicting the injuries in the first incident, it follows that to hold them guilty of causing death as a result of the injuries inflicted in the second incident, it must be affirmatively proved that the deceased was alive when the second incident took place. Of this, it seems to me, there is no acceptable evidence. Having regard to the injuries suffered in the first incident, especially those injuries completely severing the large blood vessels of the arm and leg, it seems probable that the deceased died within a short time thereafter, that is by the time of the second incident. Now the evidence in support of the prosecution case that the deceased was alive at the time of the second incident and that the injuries inflicted on him during the second incident contributed to his death, in which case no doubt it could be said that the persons who inflicted those injuries caused his death, is the evidence of PWs 1 to 4 that they heard the 1st accused cry out, "So you are not dead yet" before he proceeded to administer blows on the deceased with the iron rod. The evidence of PWs 1 to 4 is that none of them moved from the place from which they observed the incident or went near the deceased to see if he was alive or dead, and even if the evidence that they heard the 1st accused shout to the effect that the deceased was not dead were true, I doubt if that would be evidence at all of the fact that the deceased was alive excepting, at the worst, an admission so far as the 1st accused himself was concerned. Moreover I think this part of their story (not to say anything now of the rest) is most artificial, and, stationed as they were at distances of 50 yards, 30 yards and 40 yards from the spot, I am inclined to place little reliance on their testimony to the effect that they heard the 1st accused utter the words they attribute to him. It therefore follows that it cannot be postulated that the deceased was alive when the second incident began and hence that it cannot be said that the injuries inflicted on him during the second incident caused his death. The injuries inflicted in the first incident were quite sufficient to cause his death and the chances are that, even accepting the story of the second incident, the deceased was dead when the further injuries were inflicted. 16. I might also observe that, whereas according to the prosecution case, the injuries during the second incident were inflicted both by the 1st and the 4th accused, the learned Sessions Judge has made no attempt to discover which were the injuries inflicted in the course of the second incident, which of them could be said to have caused death and which were inflicted by the 1st accused and which by the 4th accused. He has not invoked S.34 of the Indian Penal Code, and it would therefore follow that even if the deceased were alive at the time of the second incident, and even if the injuries inflicted during the second incident were injuries causing death, it cannot be said which of the two accused, accused 1 and 4, was guilty of causing the death. 17. So much on the assumption that the evidence of PWs 1 to 4 regarding the second incident is substantially true. 17. So much on the assumption that the evidence of PWs 1 to 4 regarding the second incident is substantially true. For my part, however, I am inclined to think that that evidence is artificial and unworthy of credence. It would appear from the evidence of these alleged eyewitnesses that a number of persons, estimated variously from 100 to 300, gathered at or about the spot soon after the first incident, but, it is said, that out of fear no one went near the deceased or attempted to give him any help. That with such a large number of persons crowded round the deceased, the 1st and 4th accused should return to the scene half an hour later and deliberately proceed to beat the deceased to death like a dog and that no one in the crowd should interfere seems to me improbable. It has also come out in the evidence that PWs 1 to 4 are, in a manner of speaking, partisans of the deceased in that, they as well as the deceased, belong to labour unions sponsored by the Communist Party. PW 4 is the brother of PW 2, and PWs 3 and 4 are attached to the same toddy shop as the deceased and belong to the Labour Union to which the deceased belonged. I find it difficult to believe that, even after the accused had left the place after the first incident, these four persons who are obviously persons interested in the deceased, should have chosen to remain transfixed at the spot where they had stationed themselves instead of going to the deceased's assistance, in anticipation as it were of a further spectacle, that they should have remained there for 20 or 30 minutes and that they should have thought of having a closer look only after accused 1 and 4 had returned to their prey and finally despatched him. In this connection it is well to remember that in Ext. P. 1, which narrates the entire prosecution case, including the motive portion, in some detail, there is no mention whatsoever of two separate incidents, and the entire assault on the deceased with the iron rod, chopper and tapper's knife is said to have taken place when the deceased attempted to use his tapper's knife on the accused, it being further alleged that the accused wrested this knife from the deceased and used it on him. It is true enough that PW 5 who made Ext. P. 1 was not an eyewitness, but his evidence as well as that of PW 1 shows that PW 1, who was an eyewitness, narrated the 'entire incident to him in full detail and that what he reported in Ext. P. 1 was what PW 1 told him. It would therefore appear that the splitting up of the occurrence into two separate incidents with an interval of about 20 or 30 minutes was an afterthought designed to deprive the accused of a plea of private defence, and in this context the failure of the alleged eyewitnesses, PWs 1 to 4, to come forward and give evidence at the inquest acquires some degree of suspicion. 18. I am inclined to hold (in the event of my discrediting the prosecution case of two separate incidents) that all the injuries on the deceased were inflicted in the course of a single incident, and on that basis affirm the finding of the learned Sessions Judge. But that would be to build up a new case in support of which there is no evidence whatsoever. 19. It would appear that in this State nothing can happen without its possessing (or being retrospectively given) a political tinge. This case follows that pattern, but in view of the fact that the accused are admittedly supporters of the Congress, the criticism that, of the hundreds who are said to have seen the occurrence only PWs 1 to 4 who are supporters of the Communist Party, should have been available to speak it and that their evidence should therefore be viewed with caution, seems legitimate. 20. Counsel for the accused has been at pains to point out that PWs 1 to 4 (though they were, according to their own evidence, at some considerable distance from the scene) have pretended to have observed with great particularity where exactly and how each of the accused persons inflicted injuries on the deceased, but that nevertheless their evidence in this regard is not in accord with the medical evidence regarding the injuries actually sufferred by the deceased. In the view I have taken of the evidence of PWs 1 to 4, it is unnecessary for me to go into this matter, but I might advert to the complaint of counsel for the accused that whenever any of the so - called eyewitnesses gave an incomplete answer or an answer not to the liking of the Public Prosecutor with regard to the injuries attributable to each of the accused, the Public Prosecutor was allowed to elicit answers to his liking by the simple expedient of putting leading questions to the witness. This complaint I find is well founded, and I must take exception both to the conduct of the Public Prosecutor in having put such questions and of the learned Sessions Judge in having allowed them. 21. I allow the appeal, set aside the conviction and sentences recorded against accused 1 and 4, and acquit them.