JUDGMENT Anna Chandy, J.- The appellant Govindan Sreedharan stands convicted for the murder of one Raghavan and sentenced to undergo rigorous imprisonment for life. The incident took place at about 10 o’clock on the night of 7th January, 1961, the scene of occurrence being a foot-path leading to the Aroor Shertallai road. Raghavan had pledged a purse to P.W. 8 for 8 annas. He wanted the accused to get back the purse for him from P.W. 8 and the accused failed to comply with the request. There was a quarrel between Raghavan and the accused at about 10-30 p.m. on the date of the incident. It took place in front of the Bhavani Talkies in the Shertalla town. There was a ceremony in the house of Velu, a relation of Raghavan in connection with his pilgrimage to Sabarimala. The accused's brother, Thankappan, who was on his way to Velu's house along the foot-path was belaboured by Raghavan. The hue and cry raised by him attracted several persons including P.Ws. 1 to 3 to the scene and Thankappan left the place. The prosecution case is that after thai when Raghavan was talking to P.W. 1 the accused rushed up with a knife and stabbed him on the chest saying “have you beaten my brother also.” P.W. 1 informed the police about the incident who recorded his statement and registered a case. The accused was arrested by P.W. 14 on 8th January, 1961 from the house of P.W. 10 a relation of his and on information furnished by him M.O. 1 knife was recovered from the compound where P.W. 10 was residing. As the accused had some marks of injuries on him he was sent for medical examination. P.W. 13 examined him and issued Exhibit P-8 certificate. The case was charged on 23rd January, 1961. The accused admits that he is responsible for the injury and his case is that he inflicted the same in the exercise of his right of private defence. According to the accused the deceased who was a bully and drunkard made a wanton attack on him in front of the Bhavani Talkies earlier in the night when P.W. 7 intervened and got him free and he ran away after striking the deceased from behind. The deceased chased him for some distance and then stopped. According to the accused the deceased who was a bully and drunkard made a wanton attack on him in front of the Bhavani Talkies earlier in the night when P.W. 7 intervened and got him free and he ran away after striking the deceased from behind. The deceased chased him for some distance and then stopped. The deceased who was fully drunk was in a mood for retaliation and was waiting in the foot-path for him. When he and his brother Thankappan were proceeding to the house of Velu he stopped to collect plantain leaves to be used in connection with the ceremony. Thankappan who went ahead was belaboured by the accused. Attracted by his brother's cries the accused rushed to the spot. Then the deceased turned on him shouting I was waiting for you and caught hold of him by his throat and was attempting to kill him when he used the knife to save his life. It is not in dispute that Raghavan died as a result of the injury sustained by him. P.W. 13 is the Doctor, who conducted the autopsy and issued the post-mortem certificate Exhibit P-7. There was a penetrating wound 1½12; ' × 1' × 3' on the left side of the chest starting from the upper end of the nipple running medially and downwards cutting the rib and pericardium and injuring the pleura, lung and the auricle. The injury was necessarily fatal and the victim died almost instantaneously. The accused admits having stabbed the deceased but under different circumstances. Hence the crucial question for decision in this case is what were the circumstances under which that accused came to inflict the injury. The witnesses to the incident are P.Ws. 1 to 4. They have given evidence that it was after the deceased and Thankappan were separated and Thankappan had left the place and the deceased was actually engaged in conversation with P.W. 1 that the accused rushed up with the knife and stabbed him asking why he had beaten his brother. However, there are various factors, which indicate that the incident in all probability must have taken place under the circumstances given by the accused. It is in evidence that the deceased was a bully and a registered rowdy of the Shertallay Station. He was also fully drunk at the time. However, there are various factors, which indicate that the incident in all probability must have taken place under the circumstances given by the accused. It is in evidence that the deceased was a bully and a registered rowdy of the Shertallay Station. He was also fully drunk at the time. At 10-30 in the night he had indulged in a wanton attack on the accused and P.W. 7 had to come to the accused's rescue. The accused then hit the deceased on the back from behind and bolted from the place. The deceased pursued him for some distance evidently to retaliate. It is in this background that the deceased met the accused and his brother who were admittedly on their way to the house of Velu a relation of theirs to take part in the ceremony. Though there is no positive evidence in support of the accused's case that the deceased was waiting for him, there is nothing in the prosecution evidence to indicate why the deceased came there at the particular moment. Whatever that be, as soon as he met Thankappan the deceased began to belabour him without any provocation. The attack continued for some time. Thankappan was crying out and that brought the neighbours who were fast asleep to the scene, as also the accused who was in a nearby compound collecting the plantain leaves. That the accused had a bundle of plantain leaves with him at the time is admitted by P.W. 2 and the scene mahazar prepared the next day also notes the presence of plantain leaves at the scene. It is only natural that the deceased who attacked the accused's brother without any provocation should turn on the accused against whom he had a grudge, as soon as the accused came up. The doctor who examined the accused noted a scabbed abrasion just to the right of the trachea about the middle and that supports the accused's case that he was attempted to be throttled by the deceased. Besides that injury, two abrasions were found inside the right palm and they must have been caused while the accused was handling the knife. The learned Public Prosecutor would contend that the accused himself had no case when he was taken to the doctor that the injury on the neck was caused by an attempt to throttle. Besides that injury, two abrasions were found inside the right palm and they must have been caused while the accused was handling the knife. The learned Public Prosecutor would contend that the accused himself had no case when he was taken to the doctor that the injury on the neck was caused by an attempt to throttle. The argument is evidently based on the note made by the doctor in the certificate, that the injuries were alleged to be caused while handling the knife. However, the doctor in his evidence only stated that the accused represented that the injuries on the palm were caused while handling the knife. The evidence of P.W-16 the Investigating Officer shows that he did not even note the existence of the injury on the neck and naturally no investigation was made to find out the cause of it. When P.W-2 was asked in cross-examination whether the deceased caught hold of the accused by the neck, he gave the evasive answer that he saw the deceased catching hold of the accused but he is not aware whether it was on the throat. This witness was permitted to be declarer hostile and to be cross-examined with reference to his case diary statement, because of this unwilling admission made by him in cross-examination. The learned Sessions Judge was in error in permitting the witness to be declared hostile and to be confronted with the case diary statement. It was but a detail which was brought out in cross-examination and not a contradiction. The witness has stated that he was not asked about it either by the police or in the enquiry Court. There is also no suggestion that there was any motive for the witness to favour the accused. The defence is perfectly justified in relying upon this significant admission made by the witness. The case of the accused is also not a belated one. He had come forward with it even in the enquiry Court. The deceased is seen to be a well-built and sturdy man who had double the strength of the accused. He had already attached the accused's brother and if he turned against the accused and attempted to throttle him the accused had every justification to use the knife and he used it but once. P.Ws. The deceased is seen to be a well-built and sturdy man who had double the strength of the accused. He had already attached the accused's brother and if he turned against the accused and attempted to throttle him the accused had every justification to use the knife and he used it but once. P.Ws. 1, 2 and 4 do not support the accused's case that he was attempted to be throttled by the deceased. It is seen from the evidence of P.Ws-1 and 3 that they were the friends of the deceased and were interested in him, though the suggestion that both the witnesses were employees under one M.R. Joseph whose body guard the deceased was, was denied by him. P.W-1's evidence indicates that he was inclined to help the prosecution. Though in Exhibit P-1 he stated that when he went up hearing the cry he met the deceased and the accused's brother Thankappan at the scene of incident, he went to the extent of denying that he saw Thankappan at the scene at all evidently to avoid the slightest support to the defence case that both the accused and his brother sustained injuries at the same time. P.W-3 also exhibited his inclination to help the prosecution by giving evasive answers when asked about material particulars like the presence of a bundle of plaintain, leaves with the accused and the accused being caught hold of by the deceased. As lor P.W-4 even his presence is doubtful. P-1 does not mention his presence and P.Ws-1, 2 and 3 in their evidence do not make any reference to him. According to him he witnessed the incident from a distance of about 60 feet. There was a thick growth of trees in between and that must naturally have obstructed his vision even if it was possible to see things distinctly from that distance in the moonlight. He does not give any explanation why he was present at the place. He was questioned by the police only on the 9th though it is seen that he was available to be questioned on the 8th itself.‘On an anxious consideration of the evidence and circumstances, the accused's case appears to us more probable than the prosecution version of the incident. The conviction and sentence against the accused are therefore set aside and he is acquitted. He will be set at liberty forthwith. M.C.M.-----Appeal allowed.