JUDGMENT Anna Chandy, J. 1. Ramaswami and Narayanan the two accused concerned in Sessions Case No. 48 of 1960 of the Trivandrum Sessions Court are the appellants. The former has been convicted under Section 302, I. P. C. and sentenced to undergo rigorous imprisonment for life for causing the death of one Janappan and the latter under Section 324 to undergo rigorous imprisonment for six months for causing hurt to Jnanapans's brother Johnson. 2. The first accused Ramaswami aged 25 is the son of the second accused Narayanan. They are blacksmiths by profession living in Roadrikathu Vadakumkara Puthen Veedu, Cherukulathoor with second accused's wife, a daughter aged 35 and a daughter-in law aged 18. P. W. I Rayappan a catechist of the Roman Catholic Church of the Kotturthachankonam was living with his two sons Jnanappan (the deceased) and Johnson (P. W. 2) in a house less than half a furlong away from the house of the accused. It is alleged by P. W. 1 that the entrusted a damaged lock to the second accused for repair with a sum of Rs. 2/- some two months before 13-10-1960. Repeated demands to get the lock back were futile and so on 13-10-1960 at about 7 P. M. while returning from Nellayani estate P. W. 1 called accused 2 and asked him for the lock. Exchange of hot words developed into bandying of abuse which resulted in the pelting of stones by accused 2 at P. W. 1 P. W. 1 can away crying out that accused 2 was stoning him, when his two sons Jnanappan and Johnson joined him and all three went to the accused's house-front to take him to task for pelting stones. The prosecution alleges that no sooner than P. W. 2 asked a question to the second accused from the road why he stoned his father, accused 2 arraed with an iron rod came out into the road from his house followed by his son accused 1. Accused 2 then hit P. W. 2 on his arm tussled with him. At this juncture Jnanappan reached the southern side of the road about five feet away and accused I rushed towards him and stabbed him on the neck with pen-knife. He fell down. Then all the three, P. W. 1, 2 and accused I struggling with each other fell down on the road side. At this juncture Jnanappan reached the southern side of the road about five feet away and accused I rushed towards him and stabbed him on the neck with pen-knife. He fell down. Then all the three, P. W. 1, 2 and accused I struggling with each other fell down on the road side. When they got up the accused returned to their house with their weapons. 3. P. W. 1 removed his injured sons to the Kattakada Hospital in a car. Jnanappan died on the way at about 9 P. M. P. W. 1 then lodged the First Information with the Kattakada Police who registered the case and began the investigation which was completed by the Circle Inspector of Police P. W. 11 on 28-10-1960. 4. The death of Jnanappan and the injury on P. W. 2 are amply proved and not disputed by the accused. P. W. 3 who conducted the autopsy certified that Jnanappan died of syncope due to haemorrhage as a result of the penetrating injury sustained by him on the neck. P. W. 2 sustained two injuries, a contusion below the left shoulder and an abrasion on the back of the chest as mentioned in the wound certificate Ext. P. 7 and accused 1 had also two abrasions one on the left elbow and the other 2t above the elbow as noted in the wound certificate Ext. P. 8 5. Both the accused pleaded not guilty. The first accused stated that at 9 P. M. on 13-10-1960 when he was sleeping in the kitchen with his father, their women folk who were sleeping in the main building raised a hue and cry that somebody pulled the leg of second accused's daughter-in-law in her sleep and when they got up and searched the place they found Jnanappan stepping down from the verandah. He was forcibly detained by them to be handed over to the police. P. Ws. 1 and 2 who got scent of it came with some others in a body for releasing Jnanappam and in the courts of the melee that followed Jnanappan and Johnson sustained injuries. Accused 2 denied the lock repair story and supported accused 1's version. He denied the pelting of stones attributed to him and added that he was unable to do any manual work. 6. The direct evidence in this case is furnished by P. Ws. Accused 2 denied the lock repair story and supported accused 1's version. He denied the pelting of stones attributed to him and added that he was unable to do any manual work. 6. The direct evidence in this case is furnished by P. Ws. 1, 2, 4 and 5, of these P. W. 1 is the father and P. W. 2 is the brother of the deceased Jnanappan. P. Ws. 4 and 5 are the alleged independent eye-witnesses. Before discussing the prosecution evidence two striking improbabilities in the prosecution story may be referred to. 7. The story of giving a lock for repair and demanding its return does not impress us as sufficient reason to provoke the 52 year-old blacksmith and his son into homicidal activities of whose families had no previous grouse against each other. The insistence of the 52 year old catchist on the return of the lock then and therein the night and another 52 year old blacksmith pelting stones on his neighbor and customer after an exchange of silly words, both appear to be artificial. Though the stones did not hit him, he would come back with his two young hot-blooded sons promptly to question the blacksmith. After having gone to take the blacksmith to task why P. W. Iand his sons should meekly allow the blacksmiths to come down leisurely on to the road and beat them and stab them before they did anything to prevent such an anticipated attack also looks rather strange. If there had been sufficient light as is alleged, P. W. I and his sons could have seen the second accused who pelted the stones earlier climbing down seven or eight narrow steps armed with a two-feet long iron rod, accompanied by his young son of 25 opening a knife leisurely to stab and it is strange that P. W. 1 and his two sons would remain rooted to the road to be injured and killed by them. Surely P. W. 1 and his sons did not expect that these angry men with arms were approaching them to apologise for talking disrespectfully and for stoning P. W. 1. The natural inference is that these things could not have happened as represented by the prosecution. 8. Again, it appears to us that a twist has been given to the sequence of events and that affects the bona fides of the prosecution story. The natural inference is that these things could not have happened as represented by the prosecution. 8. Again, it appears to us that a twist has been given to the sequence of events and that affects the bona fides of the prosecution story. The prosecution would have it that accused 2 came leisurely with an iron rod and beat P. W. 2 on his arm and then Jnanappan who had just arrived was stabbed by accused 1 without the slightest provocation. It is strange that P. W.1 and accused 1 who brought about the trouble should come out unscathed and an innocent man who simply accompanied the father and was standing aloof without even opening his mouth should be stabbed to death. The tussle is stated to have taken place only after the beating and stabbing were over and after Jnanappan had actually fallen down. It is unlikely that P. W. I and his sons who overwhelmed by provocation went to take the accused to task would have allowed themselves to be injured in a leisurely manner without the least attempt to resist. The scuffle must have and 5 to that effect. These striking improbabilities lend support to the defence contention that the full picture of the original of the incident was not placed before court. 9. P. W. 4 Chellan gave evidence that when he was going eastwards along the road he saw P. W. 1 running in the opposite direction from near the accused's hous crying out that he was being stoned. He also saw P. W. 2 and Jnanappan who were behind him running up and P. W. 2 asking Accused 2 why he stoned his father. An altercation ensued and accused 2 came down with an iron rod and beat P. W. 2 on the left shoulder. P. W. 2 then caught hold of accused 2 when accused I approached Jnanappan who was standing a little to the south. Seeing that Jnanappan attempted to catch hold of accused 1 he drew out his knife and stabbed 1 and a tussle ensued and all three of them fell down on the road. When admittedly living three miles away from the place but says he chanced to see the incident on his way back from his sister's house. P. Ws. 1 and 2 knew him well for the last seven or eight years. When admittedly living three miles away from the place but says he chanced to see the incident on his way back from his sister's house. P. Ws. 1 and 2 knew him well for the last seven or eight years. He is also stated to have carried a hurricane lantern with him. If so, P. W. 1 must have seen him and recognized him. Neither in P. W. 1's First Information Statement nor in the inquest is he mentioned as an eyewitness. P. W. 1 would say he mentioned the name of Chellan to the Sub-Inspector, but the records prove the contrary. His cross-examination has undone him. In his case diary statement and before the Committal Court (vide Ext. D-1) he has not stated that he witnessed the early stages of the incident and has spoken only about the actual beating and stabbing. However in the trial he was prepared to improve upon his earlier version. He admitted in cross-examination that while he was at the Chapel (which according to the plan is 380 feet away from the scene) he heard the cry of women from the house of the accused though according to him the cry was only Don't gout for a quarrelt. He was questioned by the Circle Inspector only on the 16th. The delay in P. W. 4 developing into an eye-witness is suspicious. The learned defence counsel suggests that only on 15-10-1960 when the prosecution though of the necessity of introducing a hurricane light into the story and somebody had to be pitched upon and P. W. 4 a cooly at the beck and call of P. W. 1 came in handy. Any way we are not inclined to believe this chance-witness who is prepared to improve upon his statements to oblige the prosecution. P. W. 5 is another chance witness who while returning from his brother-in-law's house heard the women's cry and saw accused 2 coming out to the road with an iron rod and hitting P. W. 2 on his arm and accused 1 stabbing Jnanappan on his neck and the subsequent scuffle and fall. He a native of Kalikadu ten miles away from the place is alleged to have been living at a place a mile away from the scene of the incident at the relevant time. He a native of Kalikadu ten miles away from the place is alleged to have been living at a place a mile away from the scene of the incident at the relevant time. He is also a cooly who very easily adds to and improves upon his earlier statements where he only mentions having seen the incident from the stage of the actual beating and stabbing and has nothing to say about hearing the cry and the accused coming out of their home with the iron rod. He made a significant admission in cross-examination that the very first thing he saw was scuffle and that was between P. Ws. 1 and 2 and Narayanan Maistry (accused 2) and that Jnanappan was at that time at a distance of 10 to 12 feet. As this admission was contrary to the definite case of the prosecution that there was no such scuffle before the incident and that the scuffle was after Jnanappan had sustained the injury and fallen down and also that accused 2 had not taken part in the scuffle an attempt was made in the re-examination to get over it but the admissions are too definite and clear to be explained as mistakes. In this connection the admission made by P. W. 4 before the committal court (vide Ext.D1) that accused 2 whom he refers to as Maistry also fell down may also be taken into account. It is the definite case of the accused that the witness's brother Thomas had married Ammukutty one of the daughters of P. W. 1 .Though the witness denied the suggestion the evasive answers given by P. Ws. 1 and 2 when questioned about it, the former in trying to make out that he has no daughter by name Ammukutty and the latter in pleading ignorance that Ammukutty's husband's name is Thomas would seem to suggest that there is some truth in the suggestion. 10. The evidence of P. Ws. 1 and 2 may now be referred to. P. W. 1 says he was pelted with stones by accused 2 because he insisted on the return of the lock then and there and that led up to an altercation. He says he was by the side of his sons when the occurrence took place. 10. The evidence of P. Ws. 1 and 2 may now be referred to. P. W. 1 says he was pelted with stones by accused 2 because he insisted on the return of the lock then and there and that led up to an altercation. He says he was by the side of his sons when the occurrence took place. He then enumerates what he had done after the event when he removed his sons to the hospital and he gave Ext. P. 1 statement. P. W. 2 supports the version given by his father. Their evidence is in strict accordance with the prosecution case. The learned Public Prosecutor pointed out that the evidence of persons interested in the deceased should not be disregarded on that ground. No one can take objection to that proposition. Near and dear relations of the deceased will be the last persons to exculpate the guilty and substitute innocent persons, but when pressed with a necessity to exculpate themselves from aggressive acts near relations are not above giving false twists to the nature and sequence of events. It was further argued that the case as put forward at the earliest opportunity within three hours of the incident has to be taken to be true. However in this case due allowance has to be given to the fact that the incident took place in front of the house of the accused, that the provocation was for P. W. 1 and his sons to be on the aggressive and actually they had come up to the place to take accused 2 to task for insulting P. W. 1 and P. W. 1 as his evidence discloses is not new to criminal courts having himself figured as accused and witness in more than one case. He was fully aware of the significance of the incident having taken place in front of the accused's house and was competent to shape his statement in such a manner as to make out that the accused had no appear to be averse to giving false evidence when it suits their purpose. P. W. 1 and not given the name of Chellan as an eye-witness in the First Information Report and the inquest and yet he would accuse the Sub-Inspector of being responsible for the omission to not it. P. W. 1 and not given the name of Chellan as an eye-witness in the First Information Report and the inquest and yet he would accuse the Sub-Inspector of being responsible for the omission to not it. Again to get over the suggestion that P. W. 5 is related to his son-in-law, P. W. 1 tried to prevaricate when he was asked about his daughter Ammukutty and P. W. 2 when questioned about Ammukutty's husband Thomas. 11. In cases of this nature the origin of the trouble is of paramount importance to find out who was the aggressor. Here this is shrouded in doubt. There is no corroboration for P. W.1's lock repair story or the exchange of hot words and the stone throwing. Except P. W. 1 nobody says anything about the exchange of abusive words. Witness Narayana Pillai the closest neighbor living within 75 feet of the scene of incident who is seen to have been present from the very beginning and who could have given cogent evidence about the antecedent events and the beginning of the actual attack has been kept back from the witness box though he was cited in the charge-sheet as an eye-witness and was actually present in the Sessions Court on two successive days to give evidence. It is not as if the prosecution did not feel the necessity to adduce independent evidence about that part of the incident. If so they would not have attempted the task of making P. Ws 4 and 5 to improve upon their Case Diary Statements by speaking about it. The giving up of Narayana Pillai even after the prosecutor realised that his attempt to bring out the early part of the incident through P.Ws. 4 and 5 proved futile cannot be justified. 12. No doubt the prosecutor has the discretion to choose his witnesses, but if he misuses the discretion he does it at his own risk. Accused has the right to demand the proof against him to be that of the most competent and best witnesses. The burden of proving all the relevant facts and circumstances is always on the prosecution. Here, after leaving the origin of the quarrel in doubt the Public Prosecutor fails to examine the most material witness whose name is mentioned in the First Information Report and who was available in court. The burden of proving all the relevant facts and circumstances is always on the prosecution. Here, after leaving the origin of the quarrel in doubt the Public Prosecutor fails to examine the most material witness whose name is mentioned in the First Information Report and who was available in court. The omission looms all the more large when it is seen that the prosecution attempted to justify their action by coming out with an unacceptable explanation. The Circle Inspector would say that the witness had a defective hearing. It is unlikely that, this defect which evidently did not prevent the witness being questioned by the police and hearing the several mahazars attested by him when read out would have stood in the way of his examination before court. The failure to examine this witness has left a gap in the evidence which no other witness has been able to fill. In the absence of reliable evidence regarding the beginning stages of the occurrence, it is not possible for the court to come to a definite finding that the accused began to hit out on being merely questioned by P. W. 2. This difficulty could have been easily avoided by examining Narayana Pillai. 13. As this is not the first instance which has come to our notice where the prosecution failed to place before court the evidence of material witnesses, we wish to emphasis the principles which ought to guide the prosecution in this matter. The matter has been considered in all its aspects by the Supreme Court in the case reported in Narain v State of Punjab (A. I. R 1959 Supreme Court 484)wherein the following conservations have been made:- It is an accepted rule as stated by the Judicial Committee in Stephen Senevirtne v The King (A. I. R. 1936 P. C. 289) that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution.t It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is witness essential to the unfolding of the narrative on which the prosecution is based.t Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses. Narayana Pillai, without doubt, is a material witness, a witness whose testimony is essential to the unfolding of the narrative on which the prosecution is based and his non-examination cannot therefore be justified. 14. A word about the defence version may also be mentioned. Though we are not impressed with the truth of defence theory the story is also not free from infirmity. It is the case of the accused that the incident took place at about nine after they had gone to sleep, consequent on Jnanappan invading the women's quarters. According to the prosecution Jnanappan and P. W. 2 were standing near the Chapel at 7 P. M. in their way back home after the day's work when they chanced to hear their father's cry and rushed to the spot. Now if the autopsy had provided any evidence regarding the contents of the deceased's stomach we could have fixed the time of the occurrence in relation to the last meal, whether it happened before the meal when he was on his way home after his day's work or whether it occurred after the meal while on a nocturnal adventure. However such evidence here is conspicuous by its absence. P. W. 3 has made short-work of the autopsy by certifying that both chambers of the heart are empty, all the internal organs are pale. This type of post-mortem certificate is not of help to the court and is objectionable. Noting the contents of the stomach if of great importance. The medical officer's primary duty in conducing the autopsy is to give information about the cause of death and the time of death and noting the stomach contents makes the latter an easy task. This type of post-mortem certificate is not of help to the court and is objectionable. Noting the contents of the stomach if of great importance. The medical officer's primary duty in conducing the autopsy is to give information about the cause of death and the time of death and noting the stomach contents makes the latter an easy task. Modi in his book on Medical Jurisprudence (vide 10th Edition page 57) gives a copy of the report of the postmortem examination. Item 6 in the internal examination of the abdomen is stomach and its contentst and item No. 15 is Additional remarks with, where possible, medical man's deduction from the state of the contents of the stomach as to the time of death and the last meal. Thus the stomach and its contents and the time of death and the last meal are not matters to be left in doubt. We wish to emphasis this matter for the guidance of medical men conducting autopsy. 15. Thus the prosecution must fail due to a combination of circumstances. The improbabilities of the case as put forward by the prosecution, the total absence of acceptable evidence as to the origin of the quarrel and the circumstances under which the deceased and P. W. 2 came to sustain the injuries, the withholding of the best evidence on the point by the failure to examine Narayana Pillai, the inability of the court in acting upon the uncorroborated and the interested evidence of P. Ws.1 and 2 about the origin of the quarrel and the attendant circumstances compel us to acquit the accused. That the accused were responsible for the injuries has been proved but the circumstances under which they were caused are in doubt. The fact that the deceased and his father and brother were unarmed or that the accused sustained no serious injuries cannot deprive the accused of their valuable right of self-defence. More important than dangerous weapons and the number of injuries is the dangerous situation in which the accused might have been placed by the deceased and party. The beginning of the quarrel is of supreme importance. If the prosecution has suppressed that, they have only themselves to thank for the acquittal of the accused. 16. In the result, we allow the appeal and set aside the conviction of the appellants. They will be set at liberty forthwith. The beginning of the quarrel is of supreme importance. If the prosecution has suppressed that, they have only themselves to thank for the acquittal of the accused. 16. In the result, we allow the appeal and set aside the conviction of the appellants. They will be set at liberty forthwith. S. Velu Pillai, J. 1. I agree that the prosecution has to fail. While I am not impressed with the theory of the defence, I must also state, that it is difficult to accept the evidence adduced by the prosecution, that P. Ws. 1 and 2 and Jnanappan came to the scene only to interrogate the accused and not to retaliate on them. P. Ws. 1 and 2 are apt to suppress the parts played by them and Jnanappan, and P. Ws. 4 and 5 stand discredited by their case diary statements, with which they were confronted, when they professed to have witnessed the earlier part of the incident. The examination of Narayana Pillai, an independent witness, who was summoned and who attended Court. Was essential to the unfolding of the narrative on which the prosecution was based and no valid reason was adduced for giving him up. The evidence which P. Ws. 4 and 5 might be prepared to offer on a material part of the occurrence being defective from the inception, the rule against duplication of the same evidence, however wholesome, cannot justify the failure of the prosecution to examine Narayana Pillai. Ialso agree with the comments made by my learned brother on the post-mortem certificate.