JUDGMENT : ANNA CHANDY, J. 1. Antony, the appellant in this case, stands convicted under S. 302 I.P.C. and sentenced to undergo rigorous imprisonment for life, for having caused the death of one Vareed Paulose alias Pylo by stabbing him with a dagger. 2. The incident took place on 16-4-1959 at about 9 P. M. inside a toddy shop. Pw. 3 went to the toddy shop which belongs to Pw. 6, for a drink. Pw. 1, the brother-in-law of the deceased was also there taking a drink when the accused came there and there was an exchange of words between the accused and Pw. 1. A criminal prosecution which was started against the accused by Pw. 7 ended in acquittal, the previous day. That prosecution was conducted by Pw. 1 who was a friend of Pw. 7. Another complaint was filed by the deceased at the instance of Pw. 1 that a necklace belonging to his wife was stolen by the accused. That case had also shared the same fate. The prosecution alleges that the accused questioned Pw. 1 about all these abortive attempts made by them to molest him. After an exchange of hot words the accused gave a slap on Pw. 1’s cheek. Just then the deceased Pylo, entered the shop and caught hold of the accused. The prosecution case is that in the course of the scuffle the accused gave a stab to Pylo with M.O.1 dagger. The grappling continued and the deceased fell down on the floor and then cried aloud that he was stabbed. Meanwhile Pw. 3 caught hold of the accused. Hearing the cry of the deceased Pws. 2, 4 and 5 who were also drinking toddy in the adjacent room came and sent the accused away from the place. According to the accused the incident took place in a different manner. He stated that after the day’s labour he went over to the toddy shop to have a drink. When he went in, Pw. 1 who was there beat him on his cheek declaring that he was waiting for him. When he attempted to catch hold of Pw. 1, the deceased Pylo, came and caught hold of him. They grappled and fell down. While they were grappling on the ground the deceased caught hold of the accused’s testicles and squeezed them. 1 who was there beat him on his cheek declaring that he was waiting for him. When he attempted to catch hold of Pw. 1, the deceased Pylo, came and caught hold of him. They grappled and fell down. While they were grappling on the ground the deceased caught hold of the accused’s testicles and squeezed them. At that time to extricate himself he took a small pen-knife which he had with him and stabbed Pylo on the hand. It was then that the deceased called out that the accused had stabbed him. He then left for his house. He denied having used M.O. 1 dagger and alleged that it was planted at the place from which it was later recovered. 3. The death of Pylo and the cause of it admit of no doubt. Pw. 15 is the doctor who treated him in the hospital and after death conducted the postmortem examination. Three injuries were noted on the deceased. (1) An oblique incised wound 1” x 1/4” x 1/2”, 1” below the last rib on the left side. (2) An incised wound 1/2” x 1/8” skin deep on the left forearm and (3) a contusion on the middle of the right leg. Corresponding to injury No. 1 there was an internal injury which had torn the kidney. The doctor gave evidence that injury No. 1 was sufficient in the ordinary course of nature to cause death and the cause of death was syncope due to haemorrhage and shock as a result of the injury. 4. In this case the accused does not deny that it was he who inflicted the injuries on Pylo and the vital question for determination is whether the injuries were inflicted by the accused under the circumstances alleged by the prosecution or whether Pws. 1 and 4 were in the aggressive and the accused had only acted in self defence. As mentioned already according to the prosecution the accused was in the aggressive and picking up a quarrel with Pw. 1 slapped him on the cheek. When Pylo came into the shop to stop him from doing further harm to Pw. 1 he stabbed Pylo. The grappling between them and Pylo’s falling to the floor were subsequent events. However according to the accused, Pylo, and Pw. 1 slapped him on the cheek. When Pylo came into the shop to stop him from doing further harm to Pw. 1 he stabbed Pylo. The grappling between them and Pylo’s falling to the floor were subsequent events. However according to the accused, Pylo, and Pw. 1 who were smarting under the disgrace caused by the acquittal of the accused the previous day were actually waiting for him at the toddy shop where he usually goes for a drink after the day’s work. According to him, it was Pw. 1 who was in the aggressive, who abused him and beat him declaring that he was just waiting for him. It was when the accused attempted to catch hold of Pw. 1, that the deceased Pylo who was nearby caught hold of him. Then they grappled and fell down and the stab was actually inflicted while they were grappling on the ground. The question to be decided is which of these versions is true when viewed in the light of the evidence and probabilities. 5. The prosecution relies on the evidence of Pws. 1, 3 and 6 the occurrence witnesses, Ext. P-9, the dying declaration of Pylo recorded by the Magistrate and Ext. P-14, the First Information Statement recorded by the Police from Pylo. Pw. 1 swears that he had gone to the toddy shop to take a drink and was seated, on a bench in the room. He found Pw. 3 seated on another bench drinking toddy. When he had just purchased a bottle of toddy the accused came inside the room and stood in front of him. The accused asked him whether he knew that the criminal case filed by Pw. 7 ended in acquittal the previous day. The accused again asked him whether he remembers another attempt made by them to get him involved in a theft case which also had a similar result. The witness then asked the accused to clear out. Retorting, that he was not for going out, the accused slapped him on the left cheek. On getting the blow he fell down on the floor. Then, Pylo who was standing outside the toddy shop, ran up to the place and caught hold of the accused’s hand and asked him why he was beating the witness. Retorting, that he was not for going out, the accused slapped him on the left cheek. On getting the blow he fell down on the floor. Then, Pylo who was standing outside the toddy shop, ran up to the place and caught hold of the accused’s hand and asked him why he was beating the witness. Then the accused turned towards Pylo and asking him whether he wanted to know the reason why he beat the witness shook off Pylo’s hold and taking out a dagger from his waist stabbed Pylo on the left flank. Immediately Pylo caught hold of the accused and as Pylo’s leg hit against the bench he tumbled down. By that time Pw. 3 ran up and caught hold of the accused. The accused then gave two or three kicks to the deceased who was still on the ground. Hearing the commotion two or three persons who were standing outside ran into the room when the accused shouted “I will finish the whole lot of you”. Those who came inside the shop, viz., Pws. 2, 3 and 4 caught hold of the accused and took him out. When he was taken out the accused uttered some obscene words. He then left the place. With the help of Pw. 4 and others the witness removed Pylo to the Police Station where his statement was recorded by the police. The witness also gives evidence about the motive He swears that a gold chain belonging to Pylo’s wife was lost and they had filed a petition to the police mentioning the accused as the thief. The police arrested the accused, but the case could not be charged for want of evidence. In the criminal case filed against the accused by Pw. 7 the accused was under the impression that the witness was spending the money for the conduct of the case. According to him it was due to this enmity that the accused attacked him in the toddy shop. When cross-examined, he stated that the slap on his cheek had left a mark but admitted that he did not show it to the police though he had accompanied Pylo to the police station. He did not also complain about the assault on him. When cross-examined, he stated that the slap on his cheek had left a mark but admitted that he did not show it to the police though he had accompanied Pylo to the police station. He did not also complain about the assault on him. The suggestion that he and Pylo had gone over to the shop to attack the accused and it was he who started the trouble by slapping the accused on the cheek, was denied by him. The further suggestion that he kept back at the gate of the police station without going in, since he himself was in the aggressive was also denied. He admitted that he did not state anywhere before, that Pylo was waiting outside the toddy shop and came in only after he (the witness) was attacked. According to him there was a scuffle between Pylo and the accused which lasted for about two or three minutes though he denied the fact that they had fallen down on the ground. To the police he had stated that there was no grappling between Pylo and the accused, but when questioned about it he said that the grappling was only after the stab. He was sure that Pylo cried out that he was stabbed only after he had fallen down on the ground. The definite case of the defence is that Pylo cried out that he was stabbed after the fall, because the stab was actually effected while the accused and Pylo were grappling on the ground. The witness was questioned by the police the next day and according to him even then the mark left by the blow was on his cheek and he mentioned about it to the police. But it is admitted by the Circle Inspector who questioned him that that fact was not mentioned to him at all. When the witness was questioned in the lower court whether he slapped the accused on the cheek he did not come out with a definite denial as in the Sessions Court, but only gave the evasive reply that he was not sure about it. Pw. 3 is the next eye-witness. He had also gone to the toddy shop for taking a drink and according to him he was seated on the bench in the room of Pw. 6 when the incident took place. He gave evidence in the same terms as Pw. 1. Pw. 3 is the next eye-witness. He had also gone to the toddy shop for taking a drink and according to him he was seated on the bench in the room of Pw. 6 when the incident took place. He gave evidence in the same terms as Pw. 1. He swears that after the stab when Pylo had fallen down he (Pw. 3) caught hold of the accused from behind when the accused shook him off and gave one or two kicks to Pylo who was on the ground. He admitted that he was a friend of the deceased Pylo. Admittedly his house is one mile away from the toddy shop and there are toddy shops near his house from where also he used to drink toddy. When he was asked a pointed question as to whether Pw. 1 beat the accused he did not make a straight denial but only evasively answered that he did not see it. This witness also stated that it was only after Pylo had fallen down that he had cried out that he was stabbed. In Ext. D-2 his statement in the committing court he too admitted that there was a scuffle between the accused and Pylo for about two to three minutes though when questioned about it he would add that the scuffle took place only after the stabbing. Pw. 6 is the only other eyewitness. He is the vendor of toddy in the shop. He states that when Pw. 1 was in the shop for a drink the accused came in and asked Pw. 1 about the previous case and when Pw. 1 asked him to clear out the accused slapped him on the cheek. The rest of the incident is narrated by him in the same terms as Pws. 1 and 3. According to him, while Pylo and the accused were on their feet grappling after the stab, Pylo was crying out to the accused not to stab him again. This is an innovation which is not spoken to at all by the other eye witnesses who are definite that Pylo cried out only after he fell down. He too would say that Pylo was kicked twice after the fall. Another embellishment made by the witness is that when the accused left the place after the incident he declared his intention to deal properly with all those present. He too would say that Pylo was kicked twice after the fall. Another embellishment made by the witness is that when the accused left the place after the incident he declared his intention to deal properly with all those present. This is not spoken to by Pws. 1 and 3 or by any of the other witnesses who saw the accused going out of the toddy shop and is a clear indication of the hostile attitude of the witness towards the accused. Restated at first that M.O. 1 dagger was not the weapon used by the accused, though later by suggestive questions the Prosecutor made him identify it as the weapon used by the accused. He is seen to have stated to the police that as soon as Pw. 1 fell down from the bench the accused took out the dagger and it was then that Pylo came and caught hold of him. He had also stated there, that it was when the accused attempted to stab Pylo a second time that Pylo caught hold of the accused and Pylo fell down and cried out that he was stabbed. But in the Sessions Court he came out with another version that it was while they were on their feet grappling that the deceased cried out that he was stabbed. This version was evidently given with a view to meet the definite suggestion made by the defence to Pw. 1 that it was because that the accused was stabbed only when accused and Pylo were grappling on the ground, that he cried out from the ground that he was stabbed. The witness admitted that the version given by him that Pylo asked the accused not to stab him again was not given by him either to the police or in the committing court. The fact that the accused while he was going out of the shop declared that he had made up his mind to deal with all of them properly was also not mentioned by him either to the police or in his evidence in the committing court. 6. A comparison of the evidence of these witnesses with the statements given by the deceased himself in Exts. 6. A comparison of the evidence of these witnesses with the statements given by the deceased himself in Exts. P-9 and P-14 would indicate that they have made certain embellishments with the definite object of making out that the accused was in the aggressive & thus depriving him his right of private defence. According to the deceased Pylo’s statement in Ext P-9 while the accused was talking to P.w. 1 and had slapped him on the cheek, he went in. Then the accused questioned him about the previous case and beat him and then stabbed him. He stated that the accused had stabbed him several times and after he was stabbed on the abdomen he became unconscious. The fact that he was kicked while on the ground was not mentioned by him. In Ext. P-14 which is the earlier statement, he had stated that while he obstructed the accused after he slapped Pw. 1 on the cheek, the accused turned towards him and stabbed him on the side. Immediately he fell down when the accused beat him and fisted him with the hand three or four times. The fact that he was kicked while on the ground is not mentioned even there. 7. A careful analysis of the statements given by the deceased himself, the early versions given by the witnesses and later embellishments made by them to the detriment of the accused makes it clear that the prosecution has not placed a true picture of the happenings of the day before the court. A decided attempt is seen on the part of the witnesses to make out that the accused was in the aggressive when he stabbed Pylo. The later additions about the accused’s attempt to stab Pylo again and again, the alleged kicking of Pylo by the accused after the fall and above all, the declaration alleged to have been made by the accused that he would wreak vengeance on the whole lot are sure indications that the prosecution witnesses are out to give a distorted version of the incident. The truth of the case that P. w. 1 was slapped on the cheek becomes doubtful in the light of the evidence that P. w. 1 had not cared to go into the police station and show the mark left by the blow to the police. The truth of the case that P. w. 1 was slapped on the cheek becomes doubtful in the light of the evidence that P. w. 1 had not cared to go into the police station and show the mark left by the blow to the police. His case that he mentioned the fact to the Circle Inspector of Police when the latter questioned him the next day is falsified by the evidence of the Circle Inspector. The fact that Pylo had cried out that he was stabbed only when he was on the ground would also indicate that the stabbing took place only after Pylo had fallen down. We have also referred to the admissions made by the witnesses that there was a grappling between the accused and Pylo though they would add that the grappling was while they were standing and after the actual stabbing. All these facts taken together would indicate that the accused’s version that the stabbing took place while they were grappling on the ground is the more reasonable and probable one. Another significant circumstance to be noted is that the reason to be aggrieved and the motive to be in the aggressive was for Pylo and Pw. 1 and not for the accused. Successive attempts made by them to implicate the accused in criminal cases failed and one of the cases actually ended in an acquittal on the day previous to the incident. They must have been smarting under the disappointment caused by the acquittal and would have been waiting for an opportunity to teach the accused a more effective lesson by taking the law into their own hands. It is in evidence that the accused used to go to that shop to take a drink after his day’s labour and the defence suggestion that Pylo and Pw. 1 who were living at a distance had come there with the definite object of meeting the accused and teaching him a lesson does not appear to be without force. Even if it is taken that they happened to come there casually, there is no gain saying the fact that as soon as they saw the accused they would have been reminded of the recent disappointment they had to suffer and therefore could very well have started the trouble by abusing the accused and attacking him, as stated by the accused. 8. 8. In a case where the accused does not deny the act but puts forward the definite plea of private defence there should be reliable and unimpeachable evidence of the circumstances under which the incident took place. It is the duty of the prosecution not to suppress any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his right of private defence, and it is the paramount duty of the court to sift and scan the evidence carefully with a view to finding out the circumstances under which the accused had to use the weapon. In such a case the brief statements made by the deceased without specifying the circumstances in which the incident took place and the evidence of witnesses who seem to have made decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot be safely be acted upon by the court. On an anxious consideration of the evidence and probabilities of the case, we feel that the prosecution has not placed before us a true picture of the incident and that the accused’s version appears to be more reasonable and probable. 9. It is the definite case of the accused that M.O. 1 does not belong to him and that he used only a small pen-knife which was with him. According to the prosecution M.O. 1 was recovered from the house of the accused on the information supplied by the accused. Exhibit P3 is the mahazar and Pw. 10 is the attestor who is examined to prove the recovery. Ext. P7, the report of the Chemical Analyst, shows that no blood was seen on either the dagger or its sheath. Pw. 10 admits that the accused who was handcuffed was taken inside the house by the police officers and it was only after they came out with the accused on to the varandah that he found the dagger with the sheath in the accused’s hands. The police officer then took out the dagger, opened it and showed it to him. His evidence will not prove from where the dagger was taken or whether it was the accused who actually took it out. The police officer then took out the dagger, opened it and showed it to him. His evidence will not prove from where the dagger was taken or whether it was the accused who actually took it out. In this state of evidence it is not possible to find that it was M. O. 1 dagger that was used by the accused to stab Pylo. 10. Thus it is not possible for the court on the evidence placed before it to come to a positive conclusion that the accused was in the aggressive or that the incident took place in the manner alleged by the prosecution. The probabilities are that it was Pylo and Pw. 1 who started the trouble and that the accused had to use his knife in his self-defence. The only other point for consideration is whether the accused was acting in excess of that right when he stabbed Pylo with a knife. It is argued by the learned Public Prosecutor that even if the court is inclined to take the view that the accused had to act in self-defence, it is a clear case in which he exceeded the right because his opponents were unarmed and he had no reason to apprehend even grievous hurt from them. 11. The fact that Pw. 1 and the deceased 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 well be caused without the aid of dangerous weapons. The dangerous situation in which the accused person is placed and not the use of dangerous weapons is the deciding factor. The accused’s ease is that as soon as he got into the toddy shop Pw. 1 abused him in filthy language and declared that he was waiting for him. So saying Pw. 1 slapped him on the cheek and when he attempted to catch hold of Pw. 1 Pylo ran up and caught hold of him by both the hands. They fell down and while they were grappling on the floor Pylo caught hold of his testicles and it was then that he had to take out his knife and stab Pylo on the hand so that he may release his hold. 1 Pylo ran up and caught hold of him by both the hands. They fell down and while they were grappling on the floor Pylo caught hold of his testicles and it was then that he had to take out his knife and stab Pylo on the hand so that he may release his hold. Of the three injuries on Pylo one is a skin-deep wound of negligible dimensions on the forearm, another a contusion on the right leg and the third which proved to be the fatal one was on the left side. The location and the nature of the injuries only probabilise the accused’s ‘case that he used the knife while he was engaged in a grapple with the deceased on the floor. He had also examined one witness to prove his case. Dw. 1 is one who lives about a furlong to the south of the toddy shop. He is a salesman in a medicine shop. After his day’s work and on his way home he was about to get into the shop to have a cup of toddy when he heard a quarrel from inside. On looking inside he saw Pw. 1 slapping the accused on the cheek. When the accused attempted to get hold of him Pylo caught hold of the accused by both his hands. They grappled and fell down on the floor where they continued to struggle for about four minutes. He then heard Pylo’s cry that he was stabbed and one George and Leon came and took the accused outside the shop. The learned Sessions Judge has chosen not to accept his evidence. The reasons given are that it was not likely that the witness who had work in his shop till 8 P.M. could have come up to the toddy shop by 9 P.M., that it is not likely that he would have come to that shop at all as there was another shop where he could have gone more conveniently and also that he did not see the actual stabbing of Pylo by the accused or Pylo catching hold of the accused in the manner alleged by him. Had the Sessions Judge used the same standards to weigh the evidence of the prosecution and the defence witnesses, it is unlikely that be would have preferred the evidence of the prosecution witnesses to that of Dw. 1. Had the Sessions Judge used the same standards to weigh the evidence of the prosecution and the defence witnesses, it is unlikely that be would have preferred the evidence of the prosecution witnesses to that of Dw. 1. The witness stated that he had come by bus from his work spot to the Poonkavu junction from where the distance to the toddy shop is only two furlongs. If that is true there is nothing improbable in the witness having reached the toddy shop by 9 P.M. If the existence of nearer toddy shops is a criterion to disbelieve the presence of witnesses in this particular toddy shop there is no justification for accepting the evidence of Pws, 1 and 3 who admit that there were nearer toddy shops which they occasionally used to visit. There is nothing improbable in the witness who was standing at the door step and witnessing the incident which was taking place inside the room not having noticed the details like stabbing of the accused or the particular manner in which Pylo caught hold of the accused especially when they were struggling on the ground. On the other hand it would have been unusual for a person to have noticed such details from that distance. The witness is apparently a respectable man and there is not even -a suggestion why he should favour the accused or give evidence against the prosecution. He is a disinterested witness and there is no reason why his evidence should not be accepted to the extent it goes. Even if the accused has not succeeded in conclusively establishing that his version of the incident is the true one, that cannot justify the rejection of his plea in a case like this, where the prosecution evidence itself is such as to raise a reasonable doubt in the mind of the court that the occurrence might have taken place in the manner pleaded by the accused. The circumstances disclosed also do not warrant the inference that the accused had acted in excess of his right. 12. In the result we set aside the conviction and sentence of the accused and acquit him. He will be set at liberty forthwith. Allowed.