JUDGMENT Anna Chandy, J. 1. Bhaskaran the appellant in Criminal Appeal No. 220 of 1966 stands convicted by the Sessions Judge, Kozhikode under section 302, I.P.C. and sentenced to life imprisonment for having caused the death of one Velayudhan Nair by beating him on the head with an iron rod. His two brothers who were charged under section 302 read with section 34 were acquitted and the State has filed Criminal Appeal No. 290 of 1966 against their acquittal. 2. The prosecution case is as follows:- Bhaskaran, accused 1 and his two brothers accused 2 and 3 were not on good terms with the deceased Velayudhan Nair due to disputes regarding the rent of the shop building leased out by the accused father to Velayudhan Nair, and also because of the mismanagement of a co-operative ration shop conducted by Padmanabhan Nair a cousin of the deceased which was brought to light by accused 1 and, ultimately ended in the dismissal of Padmanabhan Nair from the shop. At about 12 noon on 27th December 1965 when the deceased passed along the road in front of the accused shop, he (the deceased) brandishing a knife declared that it could be used to cut not merely the twigs but the trunk also. An hour later the deceased was again walking past the accused shop when accused 1 called out to him and asked him as to what it was that he (the deceased) had said earlier. Hearing this the deceased went up to the courtyard of the shop whereupon the three accused rushed out towards him, accused 1 shouting knife, knife. The accused caught hold of the deceased and there was a struggle between them for the knife which was kept in a sheath in the waist-band of the deceased dhoti. Suddenly accused 1 released his hold on the deceased, rushed into his shop and coming out with M.O. 1 iron rod hit the deceased with it on the head. The deceased fell down and all the accused ran away from the place. Accused 2 was then carrying a sheathed knife in his hand and there was blood on his hands as well as those of accused 1. Velayudhan Nair was removed to the Calicut Medical College Hospital but was declared dead on arrival. The deceased fell down and all the accused ran away from the place. Accused 2 was then carrying a sheathed knife in his hand and there was blood on his hands as well as those of accused 1. Velayudhan Nair was removed to the Calicut Medical College Hospital but was declared dead on arrival. P.W. 1 Bhaskaran Nair who had accompanied the deceased to the hospital went to the Nadakavu Police Station and lodged the first information statement. The accused were arrested on 29th December 1965. 3. The third accused denied any involvement in the incident while accused 1 and 2 give a different version of the occurrence. They admit the ill-feeling between them and the deceased. According to them when the deceased passed in front of their shop a second time accused 1 who did not quite catch what the deceased had said earlier asked him what it was whereupon the deceased came into the shop saying who wants to knowt and stabbed accused 1. The stab was warded off. When the deceased was about to stab a second time accused 1 and 2 caught hold of him and in the ensuing struggle all of them fell down. They maintain that they do not know what happened after that. 4. Velayudhan Nair death or its cause is not disputed. At the autopsy it was revealed that Velayudhan Nair had a small incised wound near his left elbow and 3?t long wound on the top of the head. The skull had been fractured and the brain covered with blood clots. P.W. 4 the Medical Officer who conducted the postmortem examination was of the opinion that the wound on the head was necessarily fatal and could have been caused by a weapon like M.O. 1. 5. In this connection it may be noted that all the three accused also had injuries on them. Accused 1 had four incised injuries on the palm and fingers of his left hand two had to be stitched and one of which was profusely bleeding even when he was seen by the Doctor at 4 p.m. and accused 2 had two incised wounds on the index finger of his right hand while accused 3 had an area with skin peeled off on his right thumb and an abrasion on his right forearm. 6. 6. Even at the outset it must be pointed out that there are certain circumstances which throw serious doubt on the truth of the prosecution version of the incident. There has been a definite attempt to suppress the part played by the deceased knife in the incident from the very start. In Ext. P-1 the first information statement given by P.W. I an eye-witness there is no mention at all of the knife in the deceased possession, the struggle over it or of the injuries sustained by the accused. The explanation attempted is that they were not mentioned as the Police Head Constable who recorded the statement instructed P.W. 1 to be brief even before he started giving the statement. We do not think the learned Sessions Judge was right in accepting this explanation. The hollowness and the want of good faith in the explanation is evident from the fact that the Head Constable (P.W. 6) who is said to have given P.W. 1 this out of the way advice is Bhaskaran not even asked about it. The statement is far from brief. It is quite a lengthy and full narrative giving all the details including the full name of the deceased, his alias, his age, the name of his house and of his father. The incident itself is described fully giving such details as the fact that no word was uttered during the incident. The name of the persons who removed the deceased from the scene as well as their mode of transportation has been given. It is strange that in a statement so wealthy in details such important facts as to how the occurrence started with a struggle over the deceased knife which caused injuries to the accused as also the deceased should not find a place. The first information statement may not be an encyclopedia but once it assumes the character of an encyclopedia by dealing with unimportant details its studied silence about such significant factors as the starting of the incident by a struggle over the deceased knife between the deceased and the three accused should have put the court on the guard. In this case one cannot resist the conclusion that the omission was purposeful. However, since the injuries could not be simply ignored the prosecution has now put forward a case which is quite improbable and artificial. In this case one cannot resist the conclusion that the omission was purposeful. However, since the injuries could not be simply ignored the prosecution has now put forward a case which is quite improbable and artificial. According to the prosecution there was a tussle for the knife between the deceased and the accused during which the accused must have sustained the injuries on their hands. The knife itself was in its sheath and the two eye-witnesses are positive that it was never taken out. If that is true it is difficult to imagine how the accused hands were cut in trying to get hold of it. Moreover the deceased who was also tussling for the knife as much as the accused did not get any injuries on his palm. The number and location of the injuries on the palm and fingers of accused 1 right hand far from indicating a struggle for a sheathed knife show that he must have caught hold of the naked blade of the knife which was being weilded by somebody else. And that is exactly what he had told the doctor (P.W. 5) to whom he went soon after the occurrence and who examined him at 4 p. m. The doctor opines that judging from the nature of the injuries it is more probable that they could have been caused while attempting to ward off a stab than in an attempt to wrest the knife and that a sheathed one forcibly. Moreover if the prosecution evidence is to be accepted the deceased was held in a firm grip with both his hands pinioned by accused 2 and 3 in which case there was absolutely no necessity for a struggle either by accused 1 or by the other two for the knife which could have been taken with ease from the waist-band. All things told this theory of a struggle over the knife has only to be ruled out. The knife itself belongs to the deceased and he had only an hour before the incident brandished it at the accused with the significant remark that it can be used to cut not only the branches but also the trunk a reference probably to his capacity and readiness to take care of the accused and their father with whom he was not on good terms. The incident shows that the deceased was something of a braggart and would not have hesitated to make a show of his knife. 7. It is in this background that we have to analyse the evidence of P. Ws. 1 and 2 and assess its worth. P.W. 1 is one who is admittedly living two furlongs away from the place and says he had gone over to the place in search of a fisherman who owed him money and whom however he could not find. According to him while the deceased was passing along the road in front of the accused shop, the accused called him and asked him something and when the deceased walked up to the courtyard of the shop and reached a place about four feet from the shop, accused 2 and 3 came out of the shop and held him in a firm grip Malayalam followed by accused 1 who got out crying knife, knife and held the deceased by the waist. However he immediately went back to the shop and came out with M.O. 1 iron bolt and gave a blow on the head of the deceased which felled him. Accused 2 and 3 then let go their hold on the deceased and all the accused left the place. Then he saw the knife with its sheath on in the hands of accused 2 and blood on the hands of accused 1 and 2. He does not even say how the accused got injured but just wants the court to infer that they must have been injured in the course of the scuffle. He admits that none of the accused was armed with any weapon when they came out of the shop. That is surest indication that none of them intended any harm to the deceased. One cannot also appreciate the purposeless vent of accused 1 to catch hold of the deceased who was already in the firm grips of his brothers just for a moment only to let go the grip and rush back to get the bolt to give him the deadly blow. It looks as if the sole object of accused 1 was to get injured in the palm. It looks as if the sole object of accused 1 was to get injured in the palm. We have already dealt with the significant omissions made by the witness the first information statement and the advice given by the Head Constable which prompted him to omit them-an advice which the giver himself seems to be not aware of. If we go by the first information it is a simple case of accused 2 and 3 coming out of the shop and getting old of the deceased and accused 1 coming out armed with the bolt and dealing the deadly blow without any provocation. He takes particular care to specify that there was not even so much as a talk at the time. In short it was case of a premeditated and concerted attack by the three brothers. The case that the attack was premeditated and concerted one has now been found against by the learned judge himself. The first information statement is also absolutely silent about accused 1 catching hold of the deceased. It was only accused 2 and 3 who caught hold of the deceased and accused 1 part was only to come down with the iron bolt and just deal one straight blow on the head. It is too patent for anyone to overlook that the present development that accused 1 also caught hold of the deceased is made for specific purpose of explaining the injuries on his palm. Several other material variations are also made by the witness to fall in with the prosecution case in its present shape. Though in the first information statement he said that the deceased was caught hold of by accused 2 and 3 in the courtyard of the shop and the first accused beat him from the verandah, he would say in court that the deceased was standing at a distance of four feet from the shop and the blow itself was given from the thinna. Nor is this a purposeless variation. The witness admits that it was impossible for accused 1 to beat the deceased standing at a distance of four feet from the verandah and that accounts for bringing down accused 1 from the verandah to the thinna. Nor is this a purposeless variation. The witness admits that it was impossible for accused 1 to beat the deceased standing at a distance of four feet from the verandah and that accounts for bringing down accused 1 from the verandah to the thinna. The consistent case put forward by the accused is that the deceased had actually walked up to the verandah and cut accused 1 and that gains support from the presence of blood on the verandah though the prosecution would try to explain it by saying that the accused had got back to the verandah before they left for their house. It is absolutely unsafe to act upon the evidence of this casual witness who is prepared to hum and ha with the police. P.W. 2 is a tailor who does business in the shop of accused 1 and as such normally not expected to give evidence against the accused. However he could have been easily transformed into a pliable weapon in the hands of the police as admittedly for the first four or five days at least he was under the impression that he too would be implicated in a murder which took place in the precincts of the shop. P.W. 2 speaks of the earlier incident when accused 1 brandished the knife and made the meaningful remark at accused 1 and also the incident proper. He swears that when the deceased was going along the road accused 1 asked him what was it that he said in the morning. Then, when the deceased walked up to the shop and was at a distance of four feet he was caught hold of by accused 2 and 3 and also by accused 1 for a moment when accused 1 left him and brought M.O. 1 and gave the blow. He has also contributed his share in supporting the prosecution by varying the earlier versions given by him. He had stated when he was examined in the preliminary enquiry court that after he saw the knife with the deceased while he was walking along the road he did not again see it with the deceased and he saw the knife thereafter only with accused 3 when he left the scene. He had stated when he was examined in the preliminary enquiry court that after he saw the knife with the deceased while he was walking along the road he did not again see it with the deceased and he saw the knife thereafter only with accused 3 when he left the scene. However before the Sessions Court he says he saw the knife in the waist band of the deceased and there was a struggle for the knife between the three accused and the deceased and it first came into the hands of accused 2 and was thereafter found with accused 3. When cross-examined regarding the knife and the part played by it in the struggle he has come out with a series of contradictory answers which it is not necessary to list. His evidence bears ample proof that he is giving a one-sided picture of the incident and was only too willing to oblige the police in doing so. His evidence also does not inspire confidence. 8. Before parting with the case we wish to say a word about the rather out of the way procedure adopted by the prosecution in giving up all except P.Ws. 1 and 2 out of the nine witnesses cited in the charge to prove the occurrence. Five more were examined in the preliminary enquiry court, and cross-examined too. There is nothing in their evidence to indicate that they had turned hostile nor were they treated as such in that court. However all of them seem to have been given up by the prosecutor, in spite of the objections taken by the defence, on the ground that the prosecutor is informed that they have been won over by the accused. We do not say that the prosecutor is bound to call all the eye-witnesses and duplicate the evidence, or that he should examine witnesses who are likely to support the defence version of the incident. However we should think that this vantage position should not afford an inducement to the prosecution to pick and choose the eye-witnesses in such a manner as to deprive the court of a correct picture of the occurrence especially in a case where the accused has sustained injuries and were putting forward essentially a plea of private defence from the very start. In such a case the court has a duty to see whether the explanation that a good number of the witnesses have turned hostile is a mere cloak for keeping off inconvenient witnesses. The scene of occurrence in this case is a market place studded with shops on either side of the road. They are marked in the plan and it is in evidence that most of the shops were open and the shop-owners were present. In fact some of them are included in the list of nine witnesses cited in the charge and three of them were examined in the Magistrate Court (P.Ws. 2, 4 and 5). It is rather strange that in a case where as many as nine eye-witnesses were cited by a process of elimination we are left with the evidence of P.Ws. 1 and 2 alone of whom P.W. 1 is a casual witness and P.W. 2 was admittedly labouring under the fear that he himself would be implicated in the case. The choice is well justified by the faithful manner in which they have varied and developed their evidence to support the prosecution case of a premeditated and concerted attack by the three accused on the deceased with absolutely no provocation or justification. We should think that it is a typical case in which material evidence which would enable the court to get a correct unbiased picture of the incident is withheld. In this case though the court may have felt helpless to compel the prosecution to examine such witnesses it could have properly exercised the jurisdiction vested in it under section 540 Criminal Procedure Code and examined at least one of them especially when the defence made a timely request to the court to do so. No doubt the accused could also examine the witnesses but then if the prosecution would feel embarassed by the examination of hostile witnesses naturally the defence has all the more reason to avoid taking such a risky course especially when as in this case, the witnesses have actually given evidence in support of the prosecution case. 9. No doubt the accused could also examine the witnesses but then if the prosecution would feel embarassed by the examination of hostile witnesses naturally the defence has all the more reason to avoid taking such a risky course especially when as in this case, the witnesses have actually given evidence in support of the prosecution case. 9. This is a case in which the prosecution has come out with a one-sided version of the incident and in that attempt put forward a case which is improbable in the extreme and sought to prove it by two of the nine eyewitnesses who were only too willing to oblige them, whereas the accused who had sustained injuries have come forward from the start with a version which appears to be more probable if not true. 10. Criminal Appeal No. 220 of 1966 is hence allowed and the conviction and sentence passed against accused 1 are set aside. He will be set at liberty forthwith. The appeal filed by the State is dismissed.