Judgment :- 1. Appellant Sudhakaran alias Aniyan Kunju aged 24 was accused 1 in Sessions Case No. 22 of 1981 before the Sessions Judge, Kottayam. He has been convicted under S.302, I.P.C. and sentenced to imprisonment for life. Accused 2 who was prosecuted with him has been acquitted. 2. The prosecution case is as follows: The deceased Thomas, his wife pw.1 and children pw. 2 and Beena were residing in the Chettiyath house marked 2 in the plan Ext. P-6. To the north-west of this house is the house of accused No. 2 marked 1. Accused 1 who is the cousin of the 2nd accused's wife also resided with him to look after his affairs as the 2nd accused was mostly away being employed in the railway. On the northern side of the compound of the 2nd accused is a public pathway running east and west. It touches the compound of one Rajan pw. 3 on the west. From the public pathway there is a foot-path leading to the house of accused 2. The relationship between Thomas and accused 2 was not happy as Thomas spread a story that accused 2 had committed theft of coffee-beans from the land of one Namboodiri, a neighbour. On 18-8-1980 at about 6.45 p. m., Thomas left his house and proceeded west along the public pathway for going to the house of pw. 3 for looking up pw. 3's brother-in-law who was ailing. When he came near the entrance to the compound of accused 2, accused 2 came out and forcibly dragged Thomas into the compound against his resistance. In the course of the scuffle he pushed Thomas down to the ground. Accused 1 who was nearby inflicted stabs on the abdomen of Thomas with the Malappuram Knife M. 0.2 and when on receiving the injuries Thomas turned, he inflicted further stabs on his back. The accused then ran away. 3. pws.1 and 2 and others who were attracted by the noise from the scene saw what had happened to Thomas. They carried him to his house and then took him to the Medical College Hospital at Kottayam. He was examined by a Medical Officer pw. 4 who has issued the wound certificate Ext. P3 pursuant to an intimation Ext. 3. pws.1 and 2 and others who were attracted by the noise from the scene saw what had happened to Thomas. They carried him to his house and then took him to the Medical College Hospital at Kottayam. He was examined by a Medical Officer pw. 4 who has issued the wound certificate Ext. P3 pursuant to an intimation Ext. P.5 sent from the hospital Pw.7 a Head Constable of the Gandhi Nagar Police Station came to the Hospital and at 10.30 a. m. on 19-8-1980 recorded the first information statement Ext. P1 given by pw.1.On this he registered a case for the offences under S.342 and 324 read with S.34 I.P.C. under the F. I. R. Ext. P. 7. pw. 8, the Sub-Inspector of the Station took up the investigation and at 1 p. m. he prepared the scene mahazar Ext. P8. When the investigation was in progress Thomas died on 19-8-1980 at 5 p.m. On receiving information about the death pw. 8 sent a report Ext. P11 to the court substituting S.302 for S.324 in the case. In the wake of the alteration of the Section, pw. 9, the Circle Inspector, assumed charge of the investigation. He proceeded to the hospital and conducted the inquest upon the dead body of Thomas from 8.30 a. m. to 10.30 a. m. on 20-8-1980. After the inquest pw. 5, Professor of Forensic Medicine and Police Surgeon, did the post-mortem examination between 11.30 a. m. and 12.30 p. m. on 20-8-1980. Ext. P1 is the relative certificate issued by him. The accused who were absconding appeared before pw. 8 on 10-9-1980. Accused 1 produced the knife M.O.2 before him. pw. 8 seized M. 0.2 under the mahazar Ext. P12. pw.9 completed the investigation and submitted the charge-sheet against the two accused. 4. The accused pleaded not guilty in the court below. The prosecution examined pws.1 to 9 and marked Exts. P1 to P14 and M. Os.1 and 2. The accused did not give any evidence either oral or documentary. 5. When questioned on the prosecution evidence under S.313, Criminal Procedure Code, the 1st accused gave the following version of the incident. While he was standing in the court-yard, Thomas came to the front of the house uttering abusive words. He retorted in the same language. At this time Thomas rushed up and tried to beat him with a stick. 5. When questioned on the prosecution evidence under S.313, Criminal Procedure Code, the 1st accused gave the following version of the incident. While he was standing in the court-yard, Thomas came to the front of the house uttering abusive words. He retorted in the same language. At this time Thomas rushed up and tried to beat him with a stick. He avoided the blow when Thomas aimed a second blow on his head. Thereupon he stabbed Thomas. He was not aware of the further details. He admitted that after the event himself and accused 2 were absconding until 10-9-1980 when they appeared before the police and he produced the knife. Accused 2 merely stated that while he was in the back-yard he heard some hubbub in the front and on running up saw Thomas lying on the ground. 6. The prosecution examined pws.1 to 3 in order to prove the charge. Of them pw. 3 turned hostile and was cross-examined by the Public Prosecutor on his statement to the police. pws.1 and 2 spoke in terms of the prosecution case. The arguments on behalf of the defence were directed towards establishing the right of private defence set up by accused 1 and the plea of alibi taken by accused 2. The defence also sought support for their version from the statements elicited from pw. 3 during the cross-examination on behalf of the accused. The learned judge did not accept the evidence of PW. 3 which was sought to be so used by the defence. He did not also accept the evidence pws.1 and 2 that Thomas was dragged into the compound by accused 2. He held that Thomas had gone on the land of accused 2 on his own and was therefore a trespasser whom accused 2 had right to remove. In this view the learned judge found that in pushing down Thomas after his entry into the compound, accused 2 had not committed any offence. However the learned judge held the evidence of pws.1 and 2 in so far as it implicated accused 1 with the infliction of stabs on Thomas could be safely accepted. As for the right of private defence set up by him the judge held that there was no evidence of the attempted assault by Thomas and the excuse which accused 2 had in trying to eject Thomas was not available to him. As for the right of private defence set up by him the judge held that there was no evidence of the attempted assault by Thomas and the excuse which accused 2 had in trying to eject Thomas was not available to him. In this view the learned judge held that accused 1 was liable for the injuries on Thomas and that in the nature of the injuries and the weapon, he was guilty under clause Thirdly of S.300. 7. That Thomas died of the injuries received by him on the evening of 18-8-1980 is amply established and has not been challenged before us, nor it appears before the court below. The nature of the injuries on Thomas is proved by Pw.4, the Medical Officer who first examined him and issued the certificate Ext. P3 and in greater detail by pw. 5, the Professor of Forensic Medicine, who did the post-mortem examination and gave the certificate Ext. P5. The learned judge had set out the contents of the two certificates in Para.18 of the judgment. Ext. P3 shows that Thomas had 4 incised wounds and 1 lacerated injury. The evidence is that the incised injuries could be caused by stabbing with the knife M.O.2 and that the lacerated injury could be caused by falling on rough surface. pw. 5 says that injury Nos.1 and 2 in Ext. P-3 correspond to injury Nos. 3 and 7 in Ext. P5 and he agrees with pw. 3 that they could be caused by stabbing with M.O.2. He has also given further evidence that the injuries could be caused while the victim was lying on the ground even though he added under cross-examination that they could be caused while he was standing as well. He has further deposed that injuries 1 and 2 (3 and 7 in Ext. P5) are sufficient in the ordinary course of nature to cause death. We accept the evidence on the nature of the injuries and the cause of death. 8. Counsel for the appellant raised two contentions before us, that there is no acceptable evidence to prove the prosecution version of the incident and alternatively that the defence theory of the right of private defence of person should be accepted. We accept the evidence on the nature of the injuries and the cause of death. 8. Counsel for the appellant raised two contentions before us, that there is no acceptable evidence to prove the prosecution version of the incident and alternatively that the defence theory of the right of private defence of person should be accepted. As part of the latter argument he contended that in any event, accused 1 was also entitled to the right of private defence of property and that at the worst he was only guilty of having exceeded that right rendering him liable for culpable homicide and not for murder. We shall proceed to consider the contentions. 9. Counsel pointed out some discrepancies in the evidence of pws.1 and 2 as sufficient to doubt their testimony. He supplemented this contention by submitting that the learned judge himself rejected part of their evidence where they implicate accused 2 with having dragged Thomas into the compound and that after having rejected the evidence on the origin of the incident, the learned judge ought not to have accepted the evidence on the later part of the incident. He pointed out that pws.1 and 2 are very much interested in Thomas being his wife and son. He argued that pw. 2 the son, is a child witness aged only 11 years and that the court below was not alive to the inherent infirmity of the evidence of a child witness. He brought to our notice that the learned judge had committed an irregularity in not setting out the actual questions put to Pw.2 and the answers given by him. He also submitted that pw. 2 had not been questioned whether he appreciated the solemnity of oath or affirmation before administering the affirmation. Besides these submissions he raised a broader contention that the prosecution has been unfair to the defence in not examining two strangers, Mathai and Pareed even though cited as occurrence witnesses. According to counsel even though pw. 3 had not supported the prosecution that was no excuse to deny the court and the defence the benefit of whatever version either Mathai or Pareed was willing to give. 10. pws.1 and 2, no doubt, are related to Thomas; but that by itself is no ground to reject their testimony. According to counsel even though pw. 3 had not supported the prosecution that was no excuse to deny the court and the defence the benefit of whatever version either Mathai or Pareed was willing to give. 10. pws.1 and 2, no doubt, are related to Thomas; but that by itself is no ground to reject their testimony. They live in the immediate vicinity, in fact in the next door compound and in the normal course they would be the first to be attracted to the scene of the incident. No suggestion has been made much less any material produced that pw.1 or pw. 2 was away from the house at the time. This means that both the mother and the son were natural and probable witnesses to the incident. The rejection of their evidence relating to the earlier part of the incident does not necessarily involve the rejection of the entire evidence if the later portion is found acceptable. It is not clear why Mathai and Pareed were not examined. It may be that they threatened to prove hostile as pw. 3 did or the prosecution believed that the case was satisfactorily established by pws.1 and 2. The defence has also not cared to ask any of the investigating officers on the omission to examine either of these witnesses. The learned judge who had the benefit of seeing them believed pws.1 and 2 except of course on the entry of Thomas into the compound. We were taken through the evidence in full and we heard counsel's arguments at length but we are not inclined to reject pws.1 and 2. 11. On the plea of right of private defence of person expressly set up by accused 1, there is no evidence that Thomas was armed with a stick or that he attempted to beat accused 1 with it. pw.8 the Sub Inspector who visited the scene the following day and prepared the mahazar Ext. P8 found no stick at the place. It is not the defence case that Thomas had carried the stick with him after the incident or that it had been removed surreptitiously or mischievously by someone interested in Thomas after the incident. The scene of incident was the compound of accused 2 and had a stick been used and left there, the chances are that it would have remained at the scene when pw. 8 arrived. The scene of incident was the compound of accused 2 and had a stick been used and left there, the chances are that it would have remained at the scene when pw. 8 arrived. Counsel argued that even in the absence of any positive evidence the court could accept the statement of the accused under S.313 as constituting evidence in his favour. But the point is not whether it could be so accepted or not but whether there is either material or circumstances which render its acceptance reasonable. "We are not satisfied that there are circumstances in the case which would make it possible to accept that statement as a reasonable one. The plea of right of private defence of person must therefore fail. 12. The right of private defence of property and the argument in Favour of culpable homicide not amounting to murder, they could be considered under one head. In Para.16 of the judgment, the learned judge specifically found; "The deceased had no reason to enter the property belonging to the second accused. The second accused is justified in sending the deceased away from his property. For sending him away he can use that much force that is required under the said situation. So even if the second accused has pushed Thomas down, it cannot be said that he has done anything illegal." The learned judge repeated the same idea in Para.22 as well. "From the evidence above discussed, it is clear that the deceased Thomas entered into the compound belonging to the second accused, that the second accused caught hold of the deceased and pushed him down". After entering these findings the learned judge held that whatever right accused 2 might have had against Thomas, accused 1 had no such excuse in dealing with him. We are afraid that the learned judge has forgotten the rights of accused 1 when he came to deal with the latter's liability. The same right of private defence which accused 2 had in relation to the property was available to accused 1 as well, even though the property did not belong to him. The right of private defence of person or property is not confined to one's own person or one's own property as is clear from the terms of S.97, IPC. The same right of private defence which accused 2 had in relation to the property was available to accused 1 as well, even though the property did not belong to him. The right of private defence of person or property is not confined to one's own person or one's own property as is clear from the terms of S.97, IPC. If accused 2 had a right of private defence of property as the court below has held so had accused 1. It was wrong to have upheld the right in one and denied the right in the other. But accused 1 had no right to inflict the 3 stab injuries and cause the death of Thomas. In so doing he had clearly exceeded the right of private defence of property and rendered himself liable for culpable homicide not amounting to murder. To that extent we accept the arguments of counsel for the appellant. However considering the nature of the injuries and the manner of inflicting them we have no doubt that the act of accused 1 falls under S.304, Part I and not Part II under which counsel for the appellant wanted us to put his case. 13. Before concluding we would like to comment upon the manner in which the learned judge had proceeded to record the evidence of the child witness, pw. 2. The witness was then aged II years old and the learned judge has recorded as follows at the beginning of his testimony: "I have put certain general questions to the witness. From the answers given by him I am satisfied that he is a competent witness to give evidence in court". The questions were obviously put as the judge's note states, to test the competency of the witness under S.118, Evidence Act. He has not however cared to set out the actual questions put by him and the answers given by the witness, either in the deposition or in any other record for the possible use of the appellate court as was pointed in Varkey Joseph v. State of Kerala 1960 KLT. He has not however cared to set out the actual questions put by him and the answers given by the witness, either in the deposition or in any other record for the possible use of the appellate court as was pointed in Varkey Joseph v. State of Kerala 1960 KLT. 430 "It is very desirable that a trial judge should preserve on record, apart from the evidence of a child witness in a case, the questions he put to the witness in the preliminary examination and the answers which would help the appellate court to come to the conclusion whether or not the trial judge's decision in regard to the competency of the child witness was right or wrong". The learned judge has also overlooked the provisions of S.5 of the Indian Oaths Act which mandates that oath or affirmation shall be made, among others, by all witnesses who are examined by a court. The proviso to the Section lays down, so far as relevant, that where the witness is a child under twelve years of age and the court is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation the foregoing provisions of S.5 and the provisions of S.6 which permit, in certain circumstances, an affirmation instead of an oath, shall not apply to such a witness, but the absence of an oath or affirmation shall not render inadmissible his evidence. The learned judge's note only indicate at the best that he tested the competency of the witness to testify but not his understanding of the oath or affirmation. The two are different and not synonymous. Without testing this latter understanding the learned judge as the deposition shows, administered affirmation to pw. 2. This is an irregular procedure even though it will not affect the validity of the testimony. On the merits we have accepted the evidence of pw. 2 which is corroborated by pw.1 but nevertheless we have thought it necessary to make these observations for general guidance. We set aside the conviction and sentence of the accused under S.302 and convict him under S.304, Part J and sentence him to rigorous imprisonment for 7 years. The appeal is allowed to this extent. Allowed.