Judgment :- 1. This appeal by the accused Thami is directed against his conviction and sentence under S.302 IPC. passed by the Sessions Judge, Palghat Division for causing the death of one Madhavan Nair on 3-9-1964 at about 11 p.m. by stabbing him with a dagger-knife. 2. The prosecution case is that Madhavan Nair and Pw. 3 were employed by Pws.1 & 2 land-owners as night watchmen to guard their arecanuts against thefts for the year 1964. On 3-9-1964 at about 11 p.m., Pws.1 and 2 brothers awoke suddenly from their sleep at the cry of "thief! thief! catch him" shouted out by Madhavan Nair. They got out with a torch and a bamboo stick (M.O.9) and followed the fleeing someone and the chasing Madhavan Nair. Near the banyan tree standing on the boundary all the four happened to arrive together when the deceased Madhavan Nair caught hold of the accused who inflicted stabs on Madhavan Nair with a dagger-knife. Pw.1 tried to wrest the knife in vain. Both Pw.1 and his brother Pw. 2 beat the accused with sticks. Madhavan Nair fell down and the accused went to his father's nearby house. Both Madhavan Nair and Pw.1 were removed to Ponnani Hospital when the accused's people removed him also to that hospital. Madhavan Nair died on the way to the hospital. The doctor intimated the police about the arrival of the injured. The Sub-Inspector Pw. 9 reached the hospital, recorded Pw. 1's statement first and that of the accused afterwards. Both cases were investigated by the Circle Inspector Pw. 10, who referred the accused's case under S.324 as a non-cognizable offence under S.334 IPC. and filed the charge in the murder case. 3. The factum of Madhavan Nair's death is amply proved and not disputed. His death due to shock and haemorrhage was caused by the injuries especially the one to the lung. Pw.1 had six injuries on the fingers, palm and thumb of his right hand, the sixth a lacerated wound on the front of his left knee. The accused had nine injuries, one incised wound just outside the right eye, several lacerated woundsall except one on the forehead, nose, eyebrow and top of the scalp and an abrasion on the back. 4. The accused had nine injuries, one incised wound just outside the right eye, several lacerated woundsall except one on the forehead, nose, eyebrow and top of the scalp and an abrasion on the back. 4. In this case the accused had as soon as he was taken to the hospital from the scene given a clear and unambiguous version of how he happened to sustain the injuries and under what circumstances he happened to stab Madhavan Nair. Unless the prosecution is able to prove beyond doubt the circumstances under which Madhavan Nair and the accused sustained injuries the version which is given by the accused and which appears to be reasonable has to be accepted. 5. If the accused's version is true he is protected by the right of self-defence. Hence the crucial question for determination is the circumstances under which the accused was arrested. This would also lead us to the question whether the arrest of the accused from a place near his house by a private individual was legal. 6. It is well settled that for an arrest by a private individual under S.59 Criminal Procedure Code he must have necessarily seen the accused committing a non-bailable cognizable offence "in his view". The words "in his view" in S.59 Criminal Procedure Code are significant. It means "in the presence of" or "within sight of". Arrest by a private individual on mere suspicion or inference or opinion or information will be illegal. The right of the private individual to arrest is more restricted in India than in England and the legislature must have done it with a purpose. The scope and content of the words "in his view" has been considered by the Patna High Court in Gokul Tatwa v. Emperor AIR. 1926 Patna 53, Abdul Aziz v. Emperor AIR. 1933 Patna 508 and the later decision reported in Durga Singh v. Mohammed Isa 1963 (1) Criminal Law Journal 827 (Pat.). The same is the view taken by the Lahore High Court in Alwal v. Emperor AIR. 1922 Lahore 73 and by the Calcutta High Court in Bolai De v. Emperor ILR. XXXV Calcutta 361. In the Calcutta case one Jadu Bagdi, on seeing one Radhanath Dey cutting and removing some plantain trees from his garden and placing them on a cart waiting outside, cried out that his plantain trees were being stolen away. 1922 Lahore 73 and by the Calcutta High Court in Bolai De v. Emperor ILR. XXXV Calcutta 361. In the Calcutta case one Jadu Bagdi, on seeing one Radhanath Dey cutting and removing some plantain trees from his garden and placing them on a cart waiting outside, cried out that his plantain trees were being stolen away. The duffadar on hearing the cry ran to the spot and saw a cart loaded with five or six freshly-cut plantain trees being driven away by Radhanath along the road next to the garden, and being followed by Jadu who told him that the trees had been cut from his garden by Radhanath. The duffadar seized the latter and proceeded with him and the cart-load of plantain trees a short distance towards the thana, when the petitioners came up and rescued Radhanath with the cart and the plantain trees from his hands. The petitioner, Bolai, ordered the duffadar to be beaten, and the petitioner Gokul, raised his lathi to strike him, but the blow was averted by one Sital who happened to be then present. The accused were convicted by the Magistrate under S.353 and 225 of the IPC. but were acquitted by the High Court in revision accepting the defence plea that the accused were not legally arrested. Their Lordships observed: "that the duffadar was not justified in arresting Radhanath Dey because under S.39, Clause (2) of Act VI of 1870 (BC.) he was only entitled to arrest a person for theft committed in his presence. It is clear that the theft the present case had been completed before he came up and the offence is not a continuing one." In Kartar Singh v. State AIR. 1956 Punjab 122 a Division Bench of that Court following the decision of the Calcutta High Court in Kalai v. Kalu Chowkidar, ILR. 27 Calcutta 366 held that: "A person may be certain in his mind that the accused who is running away had committed a non-bailable and cognizable offence because of the statement of his neighbour which he believes and because of what he himself sees immediately after the commission of the offence, and yet, he has no right to arrest the alleged culprit. It would be extremely dangerous to allow a private person to arrest another person under S.59 (1) on the basis of his mere opinion, however definite it may be, that the offender had committed a non-bailable and cognizable offence. It would be dangerous to allow a private person to arrest an alleged offender on the basis of his opinion even if it is based on unimpeachable evidence as it would be open to serious misuse." Here Madhavan Nair did not and could not have seen the accused committing or attempting to commit the theft. He did not accuse the accused of any offence before arrest nor did he explain to the witness why he arrested the accused. It was admittedly a dark night being the third day before new moon. Madhavan Nair had also no torch with him. Nobody knows what provoked Madhavan Nair to cry out "thief! thief!" The accused was not found by anybody in possession of any stolen property nor was he seen climbing up the areca tree or getting down. He was also not seen anywhere near the place where the plucked arecanuts were found the next day. Even the case of having seen someone being chased by Madhavan Nair from the compound is spoken to by Pw.1 alone. No wonder the Circle Inspector frankly admitted when cross-examined that he did not charge a case of theft of arecanuts against the accused as there was not sufficient material to do so. The whole thing looks like a "tragedy of errors". It might be that Madhavan Nair who somehow became suspicious of a thief chased someone in utter darkness and managed to get hold of the accused who happened to be in the lane near his house at that late hour going to the place of his duty as stated by him. Even otherwise if Madhavan Nair did not see the accused committing a cognizable non-bailable offence in his view the chasing of the accused and his arrest on "mere suspicion" or "as a matter of opinion" is illegal. If the arrest is illegal, the accused gets the right to act in self-defence. It cannot be said that he acted in excess of the right when he an one-eyed man was caught hold of and attacked by three or four persons armed with sticks and chopper. 7. If the arrest is illegal, the accused gets the right to act in self-defence. It cannot be said that he acted in excess of the right when he an one-eyed man was caught hold of and attacked by three or four persons armed with sticks and chopper. 7. It is also not a case in which the evidence of Pws.1 to 4 can be said to be entirely acceptable. Pws.1 to 3 besides being interested, had good reason to safeguard their interests in a case where they had been accused by the accused even at the inception of having seriously man-handled him without any justification, and Pw. 4 is admitted by Pw. 2 to have reached the scene only after Madhavan Nair had fallen down. In the nature of this case it is not safe to act on the uncorroborated evidence of Pws.1 to 2. Mohammed a disinterested neighbour who was cited in the charge as an eye-witness was given up by the prosecution for reasons best known to them. It looks highly improbable that the accused who was a watcher of the garden himself could have selected such a comparatively early hour to commit theft of arecanuts from the garden where two watchers were residing and if Pw. 4 is believed has was actually talking with Pw. 3 in Pw. 3's watch-shed. The accused if he were the thief would have escaped into the fields and would not have slowed down near the baniyan tree for his pursuer with chappals and with no torch light to overtake. It is also not a case in which the witnesses place a true account of how the accused sustained the injuries. The incised injury near his right eye which was attributed by the accused from the very start to have been caused by a cut with a chopper is sought to be explained away as the result of an accidental contact with the chopper Pw. 3 was wielding when he pushed the accused. It seems to be one of such cases where the police excited by a misplaced sympathy for the dead capriciously explained away the accused's injuries and refer his counter case on untenable and whimsical grounds as a matter of policy. 3 was wielding when he pushed the accused. It seems to be one of such cases where the police excited by a misplaced sympathy for the dead capriciously explained away the accused's injuries and refer his counter case on untenable and whimsical grounds as a matter of policy. One curious feature about the accused's injuries is that those who arrived with areca splinters, bamboo stick and chopper aimed no blow at the right hand of the accused even when they saw him stabbing Madhavan Nair with the right hand. Seven out of nine injuries of the accused are inflicted on his head. This is a circumstance that indicates that the whole thing took place in darkness. None could have seen the occurrence. The whole case appears to have been reconstructed afterwards because a man died of injuries. It cannot also be said that it was proper for the Circle Inspector of Police to have referred the accused's case which was registered under S.324, IPC. (a cognizable offence) as a non-cognizable one under S.334 on the ground that the accused in that case were acting under grave and sudden provocation. If the accused's arrest was illegal and the accused was acting in private defence he could certainly have afforded no provocation to his assailants so as to justify the conversion of an offence under S.324 into one under S.334, IPC. In any case the Circle Inspector need not have usurped the functions of the Court to decide subtle questions of law to the prejudice of the accused who was in custody all along and who was too poor to have gone in for legal assistance. Both the case and the counter could well have been sent up to the court leaving the court to take a proper decision. So long as the prosecution could not place before the court a true and impartial story, we are not prepared to be jealous of the one-eyed Harijan cooly because by using the knife in self-defence he managed to be alive to-day. In any view of the case, it is not possible to sustain the conviction and the accused is entitled to an acquittal. The conviction and sentence entered against him are therefore set aside and he is directed to be set at liberty forthwith. Allowed.