JUDGEMENT :- The 1st accused in Sessions Case No. 61/68 on the file of the Court of the Sessions Judge, Trichur is the appellant. He has been convicted and sentenced to 10 years rigorous imprisonment under S.304, Part I, I.P.C., for causing the death of one Ittyara by beating him with a stick M.O. 1 on his head in the afternoon of 21-6-68 at about 3.30 P.M. 2. The facts of the case in brief are stated as follows : P.W. 1, Chathappan, was the salaried labourer of P.W. 6, Thomas, whose younger brother was deceased Ittyara. Ittyara used to supervise the agricultural operations of P.W. 6 in his paddy fields some place near to the place of occurrence. On the afternoon of 21-6-68 Ittyara gave some instructions to P.W. 1 while he was working in the paddy field and thereafter he came to the Panchayat road which lies east-west at the place of occurrence. Before he proceeded along that road towards east, he happened to get into the tea-shop of P.W. 7, Unnichekkan, to take a cup of tea. While so, the appellant and the 2nd accused, who had been acquitted by the Court below of the offence, were already at the tea-shop taking tea. P.W. 1 had also followed Ittyara towards the Panchayat road and after taking tea, the appellant and the 2nd accused went towards east along the road while Ittyara and P.W. 1 went behind them, P.W. 1 following in close quarters of Ittyara. When they reached in front of one Lakshmy's house on the road side, the appellant and the 2nd accused jumped out of a purayidom crossing over a fence and the appellant beat Ittyara on his head two or three times with M.O. 1 stick which he had in his hand. P.W. 1 seeing the incident expressed grief at the condition of Ittyara, who had then fallen down at the spot and died due to the head injuries sustained by him as a result of beating by the appellant. The appellant and 2ndaccused ran towards south while P.W. 1 ran towards west to give information to P.W. 6, the brother of Ittyara. P.W. 2 was alleged to have seen the incident while he was working in the purayidora of P.W. 5, Kochappan. The appellant and 2ndaccused ran towards south while P.W. 1 ran towards west to give information to P.W. 6, the brother of Ittyara. P.W. 2 was alleged to have seen the incident while he was working in the purayidora of P.W. 5, Kochappan. P.W. 3, who was on his way to his brother-in-law's house, saw the appellant and 2nd accused running away towards south of the road, the 1st appellant carrying M.O. 1 stick in his hand. P.W. 3 had also seen P.W. 1 running towards west from the Panchayat road. P.W. 4 not the appellant at about 3.30 p.m. on the date of the incident some distance away from the place of occurrence when the appellant had M.O. 1 stick in his hand. He had also seen that the shirt worn by the 1st appellant then was bloodstained. On information being given to P.W. 6 by P.W. 1, P.W. 1 came back to the place of occurrence along with P.W. 6, and thereafter P.W. 1 gave first information to P.W. 21, Sub-Inspector, Irinjalakuda at 8.30 p.m. which was recorded by P.W. 21 in Ext. P-1. On the basis of a crime registered by P.W. 21, investigation was taken up by him in the absence of P.W. 20, Circle Inspector. P.W. 21 could not conduct the inquest on the same night. But, it was held at 7.30 a.m. on the next day morning and prepared Ext. P-3 inquest report at the spot. Ext. P-4 postmortem certificate was prepared by P.W. 12, Asst. Surgeon on examination of the dead body. The appellant and 2nd respondent were said to be absconding. However, they surrendered before the Court on 8-8-1968. On 12-8-1968 P.W. 21 seized M.O. 1 stick from the compound of one Govindan on the basis of the information furnished by the appellant. It was taken into custody under Ext. P-3 mahazar which was attested by P.Ws. 8 and 9. On completion of the investigation, charge was laid against the appellant and the 2nd accused. 3. The 2nd accused denied the entire incident while appellant admitted that there was an encounter between him and the deceased Ittyara at about 3.30 p.m. on 21-6-1968 when, he stated, there was none else present. 8 and 9. On completion of the investigation, charge was laid against the appellant and the 2nd accused. 3. The 2nd accused denied the entire incident while appellant admitted that there was an encounter between him and the deceased Ittyara at about 3.30 p.m. on 21-6-1968 when, he stated, there was none else present. According to him, while he was going along the road, he was given a severe blow on his shoulder by Ittyara with a stick which he had in one hand while he had M.O. 4 umbrella in the other hand. Though the umbrella fell down, Ittyara again gave a blow to the appellant with the stick when the appellant caught hold of the stick and wrested it from him. It was then, according to the appellant, that Ittyara caught hold of the appellant by his loins and again struck him. While so, it is alleged that he gave one or two blows on Ittyara with a stick which he had wrested from Ittyara's hand. Thereafter the appellant was alleged to have thrown away the stick into the southern compound, while Ittyara again caught hold of the appellant the result being a scuffle between the two when again Ittyara gave two hits on the appellant with M.O. 4 umbrella. Later, the appellant was said to have run away to the western side of the road leaving Ittyara on the road. 4. The fact of the death of Ittayara on the afternoon of 21-6-1968 at about 3.30 P.M. lying on the panchayat road near about the residence of one Lakshmy admits of no doubt. The cause of death was also not disputed. It was seen from Ext. P-4 postmortem certificate that there were 4 injuries on the skull of Ittyara. Of those injuries, injury No. 3 was caused as a result of injury No. 1. So, actually there were only three injuries due to the beating thrice with M.O. 1 as a result of which Ittyara died. The description of the external injuries with reference to the internal injuries recorded in Ext. P-4 revealed that the injuries ware so dangerous that they were sufficient in the ordinary course of nature to cause death. As a result of the injuries, the brain matter was congested and scattered. P.W. 12, Asst. Surgeon remarked the cause of death as due to syncope caused by shock and haemorrhage. P-4 revealed that the injuries ware so dangerous that they were sufficient in the ordinary course of nature to cause death. As a result of the injuries, the brain matter was congested and scattered. P.W. 12, Asst. Surgeon remarked the cause of death as due to syncope caused by shock and haemorrhage. It cannot be disputed that Ittyara died as a result of these injuries. 5. It is relevant to point out that the learned Sessions Judge disbelieved the entire eye witness account of the prosecution case with regard to the incident and his conclusion is reproduced in his own words as follows :- "On the whole the oral evidence of P.Ws. 1 to 7 looks suspicious. P.Ws. 6 and 7 were examined by the prosecution to lend strength to the testimony of P.Ws. 1 to 4. It is not possible to resist the conclusion that P.Ws. 1 to 4 were fixed up by the police as eye witnesses to cover the lacuna in the investigation." On the basis of these observations, he came to the conclusion that the evidence of P.Ws. 1 to 4 was untrustworthy and cannot be acted upon. P.Ws. 1 and 2 are the two witnesses who witnessed the actual occurrence which brought about the death of Ittyars while P.W. 3 saw the appellant running away towards south after the incident with M.O. 1 stick in his hand and P.W. 4 saw the appellant at some place away from the place of occurrence carrying M.O. 1 in his hand wearing a blood stained shirt. If the evidence of P.Ws. 1 to 4 was discarded, there was no evidence to connect the appellant to the crime except the circumstantial evidence. One of the alleged circumstantial evidence relied upon by the learned Sessions Judge to convict the appellant was the circumstance that the appellant was absconding after the incident. The next circumstance pointed out by the learned Sessions Judge was the recovery of M.O. 1 stick on the basis of the information furnished by the appellant on 13-6-68. Apart from these two circumstances, there was nothing to connect the appellant to the crimes. Before I discuss the evidence, I may point out that the learned Sessions Judge was not justified in relying upon these flimsy circumstances to bring home the guilt of the appellant. Apart from these two circumstances, there was nothing to connect the appellant to the crimes. Before I discuss the evidence, I may point out that the learned Sessions Judge was not justified in relying upon these flimsy circumstances to bring home the guilt of the appellant. First of all, the absconding of an accused after the incident by itself is no evidence in the case. In this regard, reference may be made to Raghav Prapanna Tripathi v. State of Uttar Pradesh AIR 1963 SC 74 where it is held that the mere absconding, however, may lend weight to the other evidence especially in the guilt of the accused, but by itself is hardly an evidence of guilt. The learned Sessions Judge relying upon the decision reported in Kuttappan v. State of Kerala, 1960 Ker LJ 1273 made use of the observation in that decision to find the 2nd accused not guilty as according to the learned Sessions Judge the absconding by this 2nd accused cannot by itself be considered as proof of guilt while the learned Sessions Judge did not accept the same reasoning so far as the appellant was concerned. There was no justification, in the circumstances of the present case, in holding that the absconding by the appellant was a proof of his guilt as he had already found that the evidence in the case was not trustworthy. In the light of the Supreme Court decision, I am of the opinion that in the circumstance of the unreliable evidence on hand, which was adduced in the case, the allegation that the appellant was absconding cannot be used as a piece of evidence. 6. The recovery of M.O. 1 by itself is also not a circumstances to be used against the appellant. It is admitted case that M.O. 1 had been used by the appellant for beating Ittyara. There was no trustworthy evidence to hold that M.O. 1 stick belonged to the appellant. The attempt on the part of P.W. 4 to establish that M.O. 1 stick was found with the appellant even prior to the incident did not carry any conviction. As a matter of fact, the learned Sessions Judge had discarded this evidence on that point as P.W. 4 had no such case during the investigation. The attempt on the part of P.W. 4 to establish that M.O. 1 stick was found with the appellant even prior to the incident did not carry any conviction. As a matter of fact, the learned Sessions Judge had discarded this evidence on that point as P.W. 4 had no such case during the investigation. Even P.W. 7 did not see M.O. 1 stick with the appellant when he came to the tea-shop just before the incident. If the appellant used to carry a stick there was no reason that he should not have that stick with him when he came to the tea-shop of P.W. 7. There was no evidence to show that at any time prior to the incident the appellant had M.O. 1 stick with him. The appellant's case was that he wrested M.O. 1 stick from Ittyara himself. Anyhow, when it is conceded that it was with M.O. 1 stick that Ittyara was beaten in retaliation by the appellant, there was no force in the argument that the recovery of M.O. 1 at the instance of the appellant will establish his guilt apart from other circumstances in the case. The evidence of D.W. 1 that he found a stick with Ittyara prior to the occurrence is a circumstance to uphold the appellant's case more probable than the prosecution case. I am, therefore, of the opinion that the recovery of M.O. 1 by itself is no evidence to establish the guilt of the appellant. 7. Having found that neither the recovery of M.O. 1 nor the absconding of the appellant after the incident is a clinching circumstance to connect the appellant to the crime, it was wrong to conclude that the appellant beat Ittyara in the manner as the prosecution wants to establish its case. It was also wrong on the part of the learned Sessions Judge to stress upon one part of the statement of the appellant under S.349, Criminal P.C. and to exclude the remaining part. The entire statement of the appellant in S.342 should have been taken as a whole. The learned Sessions Judge concludes that the appellant admits in his statement under S.342 that he beat Ittyara with M.O. 1 stick and, therefore, there was an admission on his part of his guilt. The learned Sessions Judge was misdirected himself in coming to the above conclusion. The learned Sessions Judge concludes that the appellant admits in his statement under S.342 that he beat Ittyara with M.O. 1 stick and, therefore, there was an admission on his part of his guilt. The learned Sessions Judge was misdirected himself in coming to the above conclusion. It is well-settled that Court cannot accept the inculpatory part and reject the exculpatory part of the version of the accused given under S.342, Criminal P.C. Reference may be made to a decision reported in Yusufally Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147 . Even otherwise, the appellant had a case that he was beaten by Ittyara in the first instance once or twice and it was only than that he wrested the stick and beat him in return. There was a scuffle between the two and the apprehension of the appellant was that he would be done away with. In this regard, I may refer to the previous incident which took place on 19-6-68. The appellant's case was that P.W. 1, P.W. 6, Ittyara and others attempted to kill him on that day and so he filed Ext. D-7 petition before the Sub-Inspector, Irinjalakuda on 20-8-68. This petition was enquired into and both parties were warned by the Sub-Inspector on the morning of 21-6-68. The instant incident took place on the afternoon of the same day. It was, therefore, clear that there was previous enmity between the parties. This is a double-edged weapon which could be used by either side. Therefore, it cannot be said in the absence of any evidence that the appellant was the aggressor when he beat Ittyara. The learned Sessions Judge has no material before him to come to the conclusion that the appellant was the aggressor. The evidence, in this regard, of P.Ws. 1 and 2, as I have already pointed out, cannot be accepted. P.W. 1 was a party to the incident on 19-6-68. He is a labourer under P.W. 6 as well as under Ittyara. The evidence of P.W. 1 was therefore tainted with prejudice. The wife of P.W. 4 was a servant of Ittyara. P.W. 2 was evicted from his homestead by the brother of P.W. 6. Evidently, he was on inimical terms with P.W. 6 and Ittyara on that account. P.Ws. He is a labourer under P.W. 6 as well as under Ittyara. The evidence of P.W. 1 was therefore tainted with prejudice. The wife of P.W. 4 was a servant of Ittyara. P.W. 2 was evicted from his homestead by the brother of P.W. 6. Evidently, he was on inimical terms with P.W. 6 and Ittyara on that account. P.Ws. 3 and 4 appeared to be chance witnesses who had no previous occasion to tell others whether they had met the appellant after the incident. Yet they did not reveal to the large number of persons who collected at the spot soon after the incident that they had seen the appellant going with M.O. 1 in his hand. P.Ws. 2 to 4 were questioned by the police only on 26-6-68. They had no case before the police that they had occasion to reveal the incident to any one else before they gave the statement to the police. But, they were confronted at the trial Court with regard to the long delay in giving the statement to the police. They stated that they had informed some other persons including the son of P.W. 6 as regards the incident. But, that part of the evidence of P.Ws. 2 to 4 cannot be accepted. They stated to the police that they revealed their version of the case first time only to the police on 26-6-68, P.W. 1 was present at the time of the inquest on the morning of 22-6-68. But, his evidence was not recorded at that time though he gave Ext. P1 first information on the previous night to P.W. 21, Sub-Inspector. Serious doubt had been expressed by the learned Sessions Judge with regard to the maintenance of Ext. D8 general diary wherein Ext. P-1 was found recorded. The learned Sessions Judge states that the relevant page in which Ext. P1 was recorded in the diary had been tampered with. On a perusal of Ext. D8, I find that the diary in relation to Ext. P1 statement had not been properly maintained. If that be so, there was serious doubt as to whether Ext. P1 was recorded on the night of 21-6-68. As a matter of fact Ext. P1 was received by the Sub-Magistrate only on 23-6-68. There could not have been any delay for the receipt of Ext. P1 statement had not been properly maintained. If that be so, there was serious doubt as to whether Ext. P1 was recorded on the night of 21-6-68. As a matter of fact Ext. P1 was received by the Sub-Magistrate only on 23-6-68. There could not have been any delay for the receipt of Ext. P1 by the Sub-Magistrate since the police station and the Sub-Magistrate's Court are situated adjacent to one another. There was no eye witness account furnished at the time of the inquest implicating the appellant to the crime by any of the 11 witnesses examined by P.W. 21 during the inquest. P.W. 6 though examined had given only a hearsay version which he got from P.W. 1. The presence of P.W. 1 should have been availed of by P.W. 21 to record his statement as he was present at the spot. The absence of the statement of P.W. 1 at the time of the inquest is another circumstance to show that Ext. P1 could not have been recorded before the inquest was held. A large number of contradictions have been recorded by the trial Court in the evidence of P.Ws. 1 to 4. Each of these contradictions is a material contradiction which affects the truth of their version. I am unable to accept their evidence as conclusive proof to establish the guilt of the appellant beyond a reasonable doubt. Once the evidence of these witnesses was excluded, there was nothing on record to connect the appellant to the crime. I am, therefore, of the opinion that the prosecution has failed miserably to establish that the appellant committed the crime. There was, therefore, no ground to eschew any part of the statement of the appellant under S.342, Criminal P.C. His explanation appears to be more probable than the prosecution version of the case. Anyhow, the prosecution having failed to establish a crime against the appellant, it is difficult to hold that the appellant is guilty of the offence as found by the learned Sessions Judge. I find that the appellant is not guilty. 8. In the result, the appeal is allowed. The conviction and sentence of the appellant are both set aside. The appellant is set at liberty. He will be released forthwith. Appeal allowed.