Judgment VENKATACHALA ( 1 ) PUSHPARAJAN, the appellant in C. A. No. 57 of 1988 and Murali, the appellant in C. A. No. 248 of 1986 were respectively accued 3 and accused 4 in Sessions Case No. 112 of 1981 in the Sessions court of Quilon. They along with accused 1 and accused 2, after trial, were convicted for offences under S. 302 and 324 Indian Penal Code read with Section 34 thereof and each of them was sentenced to undergo imprisonment for life by judgment dated 12/02/1982 of the Sessions court. All the accused preferred a common appeal from thatjudgment before the High court of Kerala, which by its judgment dated 6/04/1984 dismissed that appeal by affirming the judgment of the Sessions court. The present appeals are filed by accused 3 and accused 4, individually and separately, on special leave. ( 2 ). The case of the prosecution was this: That at about 11 p. m. on the moonlight night of 18/07/1981 accused 1 to 4 along with three others, armed with deadly weapons, formed themselves into an unlawful assembly with the common object of murdering one Divakaran. They, by pelting stones on the house of Divakaran made him come out of his house, attacked him, stabbed him with daggers and beat him with sticks. The injuries so inflicted on him by A 1 to A 4 made him fall on the ground and succumb to those injuries in a short time thereafter while his brother-in-law Sivaprasad, Public Witness 1 and his sister Ponnamma, Public Witness 2 and others who had gathered there were attempting to remove him to a nearby hospital for treatment by securing a motor car. Public Witness 1, Public Witness 2 and others, who had gathered there placed the body of the deceased Divakaran in a compound adjacent to the house of Public Witness 2 till police who were to be informed of the death, could reach the place. ( 3 ). By 7. 30 a. m. on 19/07/1981, the next day, the Sub-Inspector of Police at Adoor Police Station, who received the information of the incident from Public Witness 1, recorded the first information statement and registered the crime. The investigation of the crime was, thereafter, done by Public Witness 14, the Circle Inspector of Police of the same station. By 7. 30 a. m. on 19/07/1981, the next day, the Sub-Inspector of Police at Adoor Police Station, who received the information of the incident from Public Witness 1, recorded the first information statement and registered the crime. The investigation of the crime was, thereafter, done by Public Witness 14, the Circle Inspector of Police of the same station. He, on completion of the investigation, laid the charge-sheet against accused 1 to 7 for the crime, before the Judicial First Class Magistrate, Adoor, who committed the case to the Sessions court, Quilon for trial. ( 4 ). In the trial, while 14 witnesses were examined, 16 exhibits were marked and 7 M. Os. were produced in support of the prosecution case, 8 exhibits were marked in support of the defence of the accused. ( 5 ). Public Witness 1, who is the husband of Nalini, the sister of the deceased Divakaran, gave evidence as an eyewitness to the occurrence of the incident. He is examined as the main witness to support the case of the prosecution inasmuch as it is he who had given the police the first information relating to the occurrence of the incident. According to his evidence, at about 11 p. m. on the fateful night, he having had his dinner in the house of his second wife Nalini, when he was in the vicinity of the house of the deceased Divakaran on his way to the house of his first wife Bhargavi, found A 2, A 3 and A 4 pelting stones on the house of Divakaran and heard cries of Divakarans wife, Karthyayani and her children from that house. Ponnamma, Public Witness 2, the sister of Divakaran and her husband Krishnankutty residing in the house situated immediately to the east of Divakarans house, who also heard the cries of Divakarans wife and her children, came out into the courtyard of their house. By then,he saw A 1, A 5, A 6 and A 7 standing at the corner of A 2s property. When a stone out of the stones which A 2, A 3 and A 4 were pelting on the house of Divakaran struck Ponnamma, Public Witness 2, she is said to have given a loud cry. Hearing her cry, Divakaran is said to have rushed towards her. But he had come to be chased by A 2, A 3 and A 4. Hearing her cry, Divakaran is said to have rushed towards her. But he had come to be chased by A 2, A 3 and A 4. Nalini, the second wife of pw 1, who was in her house in the neighbourhood, on hearing the cries, is said to have run up to her husband standing near the house of Divakaran, and cried out aloud. That cry having drawn the attention of her brother, Divakaran, he is said to have attempted to reach his sister Nalini by crossing along the western corner of the property of A 2. Divakaran, it is said, was not allowed to reach Nalini because of the obstruction offered by A 1, A 5, A 6 and A 7. Divakaran is said to have been stabbed then in his stomach and on the nape of his neck by A 1 with a dagger. He is also said to have been stabbed on the left side of his neck and on his left and right shoulders by A 2 with another dagger. He is said to have been further beaten by A 3 and A 4 with sticks while A 5 brandishing his chopper is said to have prevented anyone going for the rescue of Divakaran. All the accused are said to have left the place of occurrence of the incident, immediately thereafter, saying "divakarans affair is over and we will go away". Public Witness 1, Public Witness 2, Balan, brother of Divakaran, Nalini, Divakarans sister and others who had gathered at the place, it is said, tried in vain to save the life of Divakaran, as he succumbed to the severe injuries, which had been inflicted upon him by accused 1 to accused 4. This evidence given by Public Witness 1 is corroborated in all material particulars by another eyewitness to the occurrence of the incident, namely Ponnamma, pw 2. ( 6 ). After completion of recording of the said evidence of Public Witness 1 and Public Witness 2 and other witnesses on various aspects of the case and of placing of all the material by the prosecution in support of its case and after marking of documents for the defence, all the accused are examined by the Sessions court under Section 313 Criminal Procedure Code and their statements are recorded. A 2 in his statement has admitted about the place of occurrence of the incident alleged by the prosecution and stabbing of the deceased Divakaran by A 1 and himself. ( 7 ). According to Public Witness 1, A 4 had been forced by the deceased Divakaran, to give the share of his sister Janamma in the property in his possion a few days earlier to the incident. Cheriyankunju, Public Witness 3 has revealed in the course of his cross-examination on behalf of the accused that there were certain criminal cases which had been going on between the deceased Divakarans people on the one hand and A 3 Pushparajans people on the other hand, before A 4 had been asked to give away from the property in his possession the share of his sister Janamma. The role played by Divakaran in making A 4 give the share of Janamma, out of the property in his possession, it is said, was the immediate provocation forthe ganging up of A 4 along with other accused to put an end to the life of Divakaran. It has come in the evidence of Ponnamma, Public Witness 2 that A 1 and A 3 were the children of A 5 and A 2, A 5 and A 6 were the brothers of Meenakshi, the mother of A 4. The suggestion made to Public Witness 2 in the course of her cross-examination that there was a complaint of agricultural produce having been stolen from the property where the incident occurred is denied by her. ( 8 ). The Sessions court which examined the evidence of PWs 1, 2 and 3 and also the evidence of other witnesses including that of the evidence of the Investigating Officer, Public Witness 14 and the medical evidence of Public Witness 7, Dr Krishnakumari Amma along with the documentary evidence in the case and the material objects produced before it, on a proper appreciation of the same, found A 1 to A 4 guilty of the offences under S. 302 and 324 Indian Penal Code read with Section 34 thereof, convicted them for those offences and sentenced each of them to undergo imprisonment for life. ( 9 ). ( 9 ). The High court, which heard the common appeal of all the accused, who were convicted and sentenced by the Sessions court, on a proper reappraisal of the entire evidence on record, declined to interfere not only with the finding of guilt of the accused recorded by the Sessions court but also with the sentence awarded to each of the accused on that account. ( 10 ). It was submitted by the learned counsel appearing for the appellant Pushparajan, A 3 that both the courts below should not have found him guilty of the offence under Section 302 Indian Penal Code when the overt acts attributed to him by Public Witness 1 and Public Witness 2, the eyewitnesses to the occurrence of the incident, were the beatings given by him with a stick to Divakaran and hence his conviction has to be altered to an offence under Section 324 Indian Penal Code and sentence imposed for having committed that offence only. The submission, in our view, cannot be accepted. A 3 is the brother of A 1, who even according to the statement of A 2 made under Section 313 Criminal Procedure Code stabbed Divakaran with a dagger at the place of occurrence of the incident. Public Witness 1, eyewitness to the occurrence of the incident, has stated in his evidence that A 3 was one of the persons who was pelting stones on the house of Divakaran before he was made to come out of his house. It is also stated by him that A 3 is one of the accused who chased Divakaran, when he was rushing towards his sister Ponnamma, on hearing her cries and stopped him from proceeding further. His beating of Divakaran with a stick is said to have taken place after Divakaran was stopped and stabbed by A 1 and A 2. It is also stated by him that A 3 is one of the accused who chased Divakaran, when he was rushing towards his sister Ponnamma, on hearing her cries and stopped him from proceeding further. His beating of Divakaran with a stick is said to have taken place after Divakaran was stopped and stabbed by A 1 and A 2. By appreciating the said evidence, relating to the role played by A 3 in the company of A 1, A 2 and A 4 in bringing an end to the life of Divakaran as given by Public Witness 1 and the corroborating evidence, as given by Public Witness 2 another eyewitness to the occurrence of the incident along with other evidence placed on record, both the courts below have found A 1 to A 4 guilty of having committedthe offences under Section 302 and Section 324 Indian Penal Code read with Section 34 thereof, with which they were charged. On consideration of the material on record we are not satisfied that there is any good reason nor were we shown any, which would warrant our interference with the said finding of guilt of the accused recorded by both the courts below. Consequently sentence awarded to each of them does not call for our interference. ( 11 ). It was then submitted by the learned counsel appearing for the appellant -Murali, A 4 that Divakaran had to be stabbed and beaten by the accused to save their own lives (lives of A 1 to A 4 in exercise of their right of private defence. In support of this submission the learned counsel invited our attention to the admission of Public Witness 1 in his cross- examination that there was agricultural produce, like plantains, ginger, rubber etc. In support of this submission the learned counsel invited our attention to the admission of Public Witness 1 in his cross- examination that there was agricultural produce, like plantains, ginger, rubber etc. , in the land where the incident took place and to the statement made by A 2 on his examination by the Sessions court under Section 313 Criminal Procedure Code wherein he has stated that agricultural produce, as was being stolen from the property where the incident occurred, a watch had been kept for the thieves and on the date of the occurrence of the incident at about 10 p. m. he along with others when had gone to sleep, they heard some sound on the western side to their property and consequently he having got up and gone in that direction found Divakaran uprooting ginger, having already kept with him two stolen plantain bunches. As this situation resulted in heated exchange of words between A 2 and Divakaran, the same is said to have been heard by A 1, who was a neighbour and made him come to the place, where he saw Divakaran trying to cut A 2 with a chopper in his hand. A 2, it is said, felt that Divakaran will cut A 1 and A 2 with the chopper and kill both of them if not prevented. He is said to have, therefore, stabbed Divakaran once or twice, so as to make Divakaran drop the chopper at the place where the ginger had been cultivated and run northwards. A 2, it is said, later came to know that Divakaran had died. This very submission had been advanced on behalf of A 4, as well, before the Sessions court and the High court in appeal. The Sessions court did not accept the statement that the deceased Divakaran had cut two plantain bunches and kept them with him while he had uprooted some ginger in the land of A 2. It did not also believe about the thieving by anybody of plantain bunches and ginger from the land of A 2 where the incident had occurred. It has been stated by the Sessions court that if plantain bunches had been in fact cut and kept with Divakaran, as stated by A 2 in his statement, they would not have missed being noticed by the Investigating Officer, who prepared the scene mahazar. It has been stated by the Sessions court that if plantain bunches had been in fact cut and kept with Divakaran, as stated by A 2 in his statement, they would not have missed being noticed by the Investigating Officer, who prepared the scene mahazar. The theory of private defence set up by A 4, as the reason for inflicting stab injuries by A 1 and A 2 on the deceased Divakaran, was, therefore, discarded by it. When the same submission relating to exercise of private defence by accused as the reason for inflicting dagger injuries by A 1 and A 2 on the person of Divakaran, was made before the Highcourt, it had refused to accept the submission having regard to the scant material available on record. In examining the submission of Divakaran having gone to the place of occurrence of the incident to thieve ginger and having committed thft of plantain bunches, it is pointed out by the High court that the evidence in the case shows that the ginger on the land being hardly of two months crop was not ripe for harvest and there were no plantains in the land which had yielded bunches. The High court has, therefore, said that there was no question of Divakaran going to the place of occurrence of incident to commit theft. It must have been, on the other hand, it is pointed out by the High court, that Divakaran was caught by the accused in the land of A 2, when he was crossing the place to reach his sister Nalini who was standing along with her husband, Public Witness 1 and crying out for him. Thus, the right of private defence said to have been exercised by the accused, A 1 to A 4, as stated by A 2, is rejected. ( 12 ). We are not shown any circumstance or evidence other than those considered and appreciated by courts below in negativing the submission raised on behalf of the accused in respect of the exercise of their right of private defence in killing Divakaran, which could make us take a contrary view in the matter. The submission of the learned counsel is, therefore, untenable. The submission of the learned counsel is, therefore, untenable. There is, thus, no good ground nor are we shown any, which warrant our interference in the finding of guilt of A 3 and A 4 under Section 302 Indian Penal Code read with Section 34 thereof and the sentence awarded thereto by the Sesions court and affirmed by the High court. ( 13 ). In the result, we dismiss these appeals. ( 14 ). The bail granted by this court to the appellant - Pushparajan, A 3 and Murali, A 4 is cancelled.