Judgment : GOVARDHAN, J. ( 1 ) APPELLANTS who were accused 1 and 2 in S. C. No. 22/1987 on the file of the learned Sessions Judge, Dindigul, challenged the correctness of their convictions under Section 302 I. P. C. , and under Sections 302 read with 109 I. P. C. respectively and the consequential sentence of imprisonment for life accorded and imposed in the afforestated Sessions Case, on conclusion of trial. ( 2 ) THE deceased Ponraj was the son of PW 1 Pappathi. The accused 1 and 2 are father and son. The deceased was, living at Muniappan Kovil Street, R. V. Nagar, Dindigul with his parents. The accused are also living in the same street. On 17. 7. 86, PW 1 Pappathi was informed by a boy by name Muthu that the accused and the son of the first accused one Shankar are quarrelling with her son near the house of the first accused. She went there and questioned the accused why they were quarrelling with her son. She was informed that her son Ponraj was found talking with one Vasanthi (PW 5) who belongs to their community. The first accused threatened to do away with her son. Shankar brought a chisel and said that he will cut her son with the same even if had to go to jail for the same. PW 1 then took her son to her house where he had his lunch and gone for work. PW 2 the neighbour of PW I who is her relation on 17. 7. 86 at about 3 p. m. had heard the second accused telling the first accused pointing to Ponraj. The first accused asked the second accused who is that fellow. The second accused then informed the first accused. The deceased questioned the second accused about the same. The brother of the second accused. Shankar came there and asked the deceased whether he did not talk to Vasanthi near Mariamman temple and an altercation arose between them. PW 2 had separated them and went to fetch water. On her return, after taking water, she found Shankar bringing a chisel and telling that he would kill the deceased and does not mind to go to jail. PW 2 again intervened and separated them. ( 3 ) ON 18. 7. 86, the deceased came home for lunch and after taking lunch went away with his friends. On her return, after taking water, she found Shankar bringing a chisel and telling that he would kill the deceased and does not mind to go to jail. PW 2 again intervened and separated them. ( 3 ) ON 18. 7. 86, the deceased came home for lunch and after taking lunch went away with his friends. Pappathi viz. , PW 1 heard some noise outside and apprehending that there was again some dispute between her son and the accused party, rushed outside and saw the accused 1 and 2 pushing her son by holding his neck in front of the house of the first accused. According to PW 3 one of the friends of the deceased, when Ponraj and himself are going along with Pandiaraj and Sivaraman, the second accused stopped the deceased, picked up quarrel with the deceased and questioned him whether he has brought men to beat them on that and slapped Ponraj. PW 2 who heard the noise outside the house, also rushed up and found the accused taking out the deceased by holding his neck. PW 1 who came and found the accused pushing her son, questioned them as to why they were beating Ponraj and at that time, the second accused caught hold of her Saree, tore it and pushed her down. An altercation arose between the accused party and Ponraj and his mother and friends in which the first accused fell down. PW 1 also fell down. At that time, the second accused caught hold of Ponraj by his neck and held him firm. The first accused got up and in the kneeling position stabbed Ponraj on his stomach with M. O. 1 pen knife which he took from his waist. He also gave a second stab on the left side of chest of Ponraj. The shirt and Banian of PW 3 and the Saree of PW 2 who went to rescue of Ponraj got stained with blood. According to PW 4 the Municipal Councillor of that street; the first accused had complained to him about the behaviour of the accused with Salve Vasanthi (PW 5) and on the date of occurrence is about 6. 00 a. m. while PW 6 was going to answer her calls of nature, she found the accused 1 and 2 and Shankar sitting in a cot in front of the house. 00 a. m. while PW 6 was going to answer her calls of nature, she found the accused 1 and 2 and Shankar sitting in a cot in front of the house. On her return, she heard the second accused shouting that even if he does not go to work, it does not matter and he can attend to his other work only after finishing Ponraj. According to Vasanthi who has been examined as PW 5 about one year ago, when she went to the house of the first accused to call his daughter Parameswari to accompany her to Muthalagupatti, she found the accused Ponraj, Pandi and another man sitting in a car and talking with each other. According to PW 7 on 17. 6. 86 at about 2. 30 p. m. when he came to his house for taking meals, he found the accused in the company of Pandi and another man playing a tape recorder in the car in which they came in front of the house of the first accused. ( 4 ) PW 3 who was in the scene of occurrence, at the time of occurrence, brought an ambulance and took the victim to the hospital where he was pronounced dead by the Medical Officer ten minutes after admitting the injured. ( 5 ) PW 10 the Medical Officer attached to Government Hospital, Dindigul has examined Ponraj on 18. 7. 86 at about 3. 40 p. m. for certain injuries said to have been caused on 18. 7. 86 at 3. 15 p. m. and to be due to assault with knife and found the following injuries:1. An incised wound in the left hypochondrium extending to the same region about 6 cm. x 2 cm. depth to be assessed. 2. An incised wound in the chest left side in the 3rd inter costal space above and medial to the nipple 3 cm. x 2 cm. depth to be assessed. According to PW 10, patient was brought unconscious and was gasping for breath and died at 3. 50 p. m. Ex. P-4 is the wound certificate issued by him and Ex. P-5 is the death intimation sent by him to the police. ( 6 ) IMMEDIATELY after the occurrence, PW 1 went to the Police Station and gave a complaint Ex. 50 p. m. Ex. P-4 is the wound certificate issued by him and Ex. P-5 is the death intimation sent by him to the police. ( 6 ) IMMEDIATELY after the occurrence, PW 1 went to the Police Station and gave a complaint Ex. P-1 to PW 14 the Sub-Inspector of Police attached to Dindigul Town South Police Station and he recorded it and registered the same in Crime No. 462/1986 under Section 302 I. P. C. Ex. P-10 is the express First Information Report sent by PW 14 to the Judicial Second Class Magistrate, Dindigul. ( 7 ) PW 17 Inspector of Pot ice, on receipt of the information about the case at 5. 15 p. m went to Dindigul Police Station, got the copy of the First Information Report, visited the scene of occurrence at 5. 45 p. m. and prepared the observation mahazar in the presence of PW 7. Ex. P16 is the rough sketch prepared by him. He had also seized blood stained earth, ordinary simple earth and one pair of chappals from the scene of occurrence. Inquest over the dead body of Ponraj was held between 7 a. m. to 10 a. m. on 19. 7. 86 and Ex. P-17 is the inquest report. PW 17 sent the body for postmortem through PW 9. PW 9 seized the shirt, jatti and pant of the deceased from the body of the deceased and produced them in the Police Station. ( 8 ) PW 11 Medical Officer attached to the Government Hospital, Dindigul conducted autopsy over the dead body of Ponraj on the requisition given to him by PW 17 and found the following external injuries:1. Incised wound 21/2 cms x 11/2 cms on the left side of the chest wall on the 3rd inter costal space 1 cm. medial to the left nipple horizontally placed. 2. Incised wound 41/2 cms x 4 cms left side of abdomen 4 below the costal margin 2 way from the umbilicus horizontally placed with tapering edge on the right side of abdomen 4 below the costal margin 2 way from the umbilicus horizontally placed with tapering edge on the right side. On internal examination, on exploration of wound No. 1 there were clots along the tract of the wound. No injuries to the rib. On internal examination, on exploration of wound No. 1 there were clots along the tract of the wound. No injuries to the rib. The tract is going through the intercostal space and entered the left atrium of the heart leaving 1 cm. length horizontally slit opening the pericardium and myochardium. 400500 ml. of collected blood in the pericardium cavity was seen. About 200-300 ml. of blood was seen in the left side plural cavity. On exploration of wound No. 2 it was found superficial 12 cms. deep muscles injured. The peritoneum was intact. Stomach was 250 gms. with 50 ml. digested food material. Intestines were just distended. Other organs like lungs, liver, spleen, kidneys, brain meanings were not injured and pale looking. According to PW 11 the injury Nos. 1 and 2 corresponding with the internal injuries could have been caused by a weapon like M. O. 1 and injury NO. 1 with corresponding internal injuries, is necessarily fatal to cause the death of the deceased. ( 9 ) ACCORDING to prosecution, the accused were absconding and the first accused was arrested on 20. 7. 86 at 4 p. m. in the presence of PW 13 and another. The first accused then gave a confession statement the admissible portion of which is Ex. P-8. In pursuance of the statement, he had also taken the Inspector and his party to a place near Adhi Parasakthi temple and took out a knife M. O. 1 which was kept concealed in between two stones and it was seized by the Inspector under a mahazar attested by PW 13. ( 10 ) SINCE the first accused had injuries, he was sent to the Government Hospital for treatment by PW 17. PW 12 Doctor who treated the first accused, found the following injuries on him:1. An incised wound 2 cms x 1/4 cms on the right palm inner side wound is healing, no bleeding. 2. Multiple small abrasion each measuring 2 x 2 cms. on the front of right knee joint with scab formation on bleeding. The abrasions are healing. 3. Multiple small abrasions each measuring 2 X 2 cms. on the front of left knee joint with scab formation and- healing. 4. An abrasion 5 X 5 cms. with scab formation on right buttock. 5. Three abrasion each measuring 2 X 2 cms. with scab formation on the back of right elbow joint 6. The abrasions are healing. 3. Multiple small abrasions each measuring 2 X 2 cms. on the front of left knee joint with scab formation and- healing. 4. An abrasion 5 X 5 cms. with scab formation on right buttock. 5. Three abrasion each measuring 2 X 2 cms. with scab formation on the back of right elbow joint 6. Three abrasions each 1 X 1 cm. with scab formation on the back of left hand. According to PW 12, the injuries are simple in nature and he had given the certificate under Ex. P-7 for the same. He has also given his opinion that injury No. 1 is possible by a weapon like M. O. 1 and injuries 2 to 6 are possible by coming into contact with rough surface and that all the injuries could have been caused at the time and manner alleged. ( 11 ) PW 17 had given a requisition to the Judicial Second Class Magistrate, Dindigul to send the material objects for chemical examination. The Chemical Examiner who has received the material objects, has given a report stating that except the tarred earth taken for sample, blouse and torn saree, blood was detected on the other items. The Serologist Report is to the effect that human blood was found in all the material objects sent for examination and 0 group blood was found in the pant, shirt and jatti of the deceased and the result of grouping test is inconclusive in respect of the other material objects. After completion of investigation, PW 17 Inspector had sent the final report to the Judicial Second Class Magistrate, Dindigul on 22. 7. 86. ( 12 ) DURING the examination under Section 313 of the Code of Criminal Procedure, with regard to the incriminating circumstances appearing against the accused in evidence, they have denied their complicity in the crime, but however, they have not chosen to examine any witness on their behalf. ( 13 ) THE learned Sessions Judge, on assessment of oral and documentary evidence was satis, fled that the prosecution has proved the charges under Section 302, I. P. C. against the first accused and under Section 302 read with 109, I. P. C. against the second accused and in that view, dealt with them in the manner stated earlier. ( 13 ) THE learned Sessions Judge, on assessment of oral and documentary evidence was satis, fled that the prosecution has proved the charges under Section 302, I. P. C. against the first accused and under Section 302 read with 109, I. P. C. against the second accused and in that view, dealt with them in the manner stated earlier. The learned Judge has also found that the second accused not guilty under Section 323 I. P. C. for causing injury to PW 1 and acquitted him of the aforesaid charge. ( 14 ) MR. K. N. Basha, on behalf of the appellants contended that if the scuffle between the accused party on the one hand and the deceased, his mother and friends on the other, two injuries are said to have been caused to the deceased by the first accused and one injury has been caused to the first accused by knife and there is no explanation by the prosecution for this injury sustained by the first accused and the evidence of the prosecution shows that there is no pre-meditation for the accused to do away with the deceased and it all occurred on account of the conduct of the deceased in talking with Vasanthi PW 5 and at the most, first accused could be said to have committed the offence in exercise of his right of private defence or self-defence and it cannot be stated that he had intentionally committed the murder of the deceased Ponraj and the second accused had abetted, the same. The learned Public Prosecutor Mr. Sriramulu has, on the other hand contended that it is not as if the injury on the palm of the first accused has not been explained by the prosecution and the evidence would show that he had sustained the same in his attempt to prevent the attack made on him by the deceased. ( 15 ) AFTER hearing the arguments of the learned Advocate for the appellants and the learned Public Prosecutor for the State, we have gone through the evidence of the prosecution with due care. The evidence led in on behalf of the prosecution to prove the charge of Section 302, I. P. C. against the first accused and the charge of Section 302 read with 109, I. P. C. , against the second accused may be summarized briefly as follows: On 17. 7. The evidence led in on behalf of the prosecution to prove the charge of Section 302, I. P. C. against the first accused and the charge of Section 302 read with 109, I. P. C. , against the second accused may be summarized briefly as follows: On 17. 7. 86, the deceased Ponraj along with his friends, has come in a car, parked it in front of the house of the first accused and played a tape recorder at about 2. 30 p. m. , and at that time PW 5 Vasanthi a friend of the daughter of the first accused Parameswari had come to the house of the first accused to take Parameswari with her to Muthalagupatti, Parameswari was not willing to join her to go to Muthalagupatti. PW 5 was leaving the house of the first accused. She had then seen the deceased Ponraj and his friends Pandi and another laughing and, she went away under the impression that they are laughing among themselves. PW 7 who was also a resident of the same street, who came to his house for taking lunch, had seen the deceased Ponraj and Pandi playing the tape in front of the house of the first accused and on seeing the same, the son of the first accused by name Shankar quarrelled with them. PW 2 a neighbour of PW 1 who is also related to her had seen the deceased in front of the house of the first accused and has heard the second accused telling his father the first accused and for that, the first accused inquired the second accused who he is, and the second accused informed him According to PW 2, the deceased questioned the second accused as to what they are talking about him. At that time, his younger brother Shankar came there and questioned the deceased as to whether he was not talking to Vasanthi behind the Mariamman temple for which, the deceased asked him whether he had seen him. Shankar had asked the deceased as to whether he can put off the camphor in Muniappan Temple if really he did not talk to Vasanthi, and informed him that if does not agree for that he would do away with him. Shankar had asked the deceased as to whether he can put off the camphor in Muniappan Temple if really he did not talk to Vasanthi, and informed him that if does not agree for that he would do away with him. PW 2 has pacified them and advised them not to quarrel with each other and it can be negotiated in the presence of the parents of Vasanthi. ( 16 ) ACCORDING to PW 1 on 17. 7. 86 at about 3. 00 p. m. while she was in her house, a boy named Muthu came to her house and informed her that the accused and Shankar are quarrelling with her son and upon hearing it she went there taking her sister with her and questioned her son as to what is the matter for which, he had replied that Shankar and accused are abusing him. It is also stated by her that she questioned the accused as to why they should abuse her son for which they have replied that the deceased is restraining Vasanthi on her way and is making fun of her and laughing at her, and further informed her to see what he will do to her son before that night. According to PW 1 Shankar brought a chisel and informed her that even if he happens to go to jail, it does not matter and he will do away with her son with a chisel. According to PW 4, the Municipal Councillor of that street, on the date of occurrence viz. 18. 7. 86 at about 10. 00 a. m. the first accused came to him and informed him that the deceased Ponraj is bringing a van near his house and is playing tape recorder and a girl of his community is smiling at him and that he has got two girls in his house and that they belong to one community while the deceased belongs to another community and therefore PW 4 has to enquire the same with the deceased saying that if it is complained to the family of the deceased, they come to quarrel with him. PW 4 had advised him not to quarrel and that he will make enquiry on that night. PW 4 had advised him not to quarrel and that he will make enquiry on that night. The evidence of PW5 1, 2, 4 and 5 thus indicate that the deceased Ponraj has brought a van and parking it in front of the house of the first accused, was playing a tape recorder and at that, Vasanthi, a girl belonging to the community of the first accused happened to be near the house of the first accused and the conduct of the deceased was not relished by the accused 1 and 2 and the other son of the first accused since there are two girls in the house of the first accused and since they belong to one community and the deceased belongs to another community. It also further shows that in order to mend the deceased, first accused had even requested the Municipal Councillor of that street to interfere and make enquiry with the deceased. This evidence of these witnesses would thus indicate that the accused 1 and 2 as well as Shankar wanted to prevent the deceased from making fun of the girls belonging to their community and eve teasing them. As far as the conduct of the accused and Shankar are concerned with regard to the incident dated 17. 7. 86, it can only indicate that they went to preserve the prestige of their family as well as the prestige of the girl Vasanthi who belongs to their community and had taken steps to safeguard the same not only by picking up a quarrel with the deceased, but also by making a request to PW 4 who is an important person of that locality being the Councillor of the street. Anyhow that has been said to be the motive of the incident which followed the next day. ( 17 ) ACCORDING to PW 1, the next day at about 3. 00 p. m. , her son Ponraj had left the house after taking food at 3. 00 p. m. along with his friends Abbas, Pandi and Sivaraman. Anyhow that has been said to be the motive of the incident which followed the next day. ( 17 ) ACCORDING to PW 1, the next day at about 3. 00 p. m. , her son Ponraj had left the house after taking food at 3. 00 p. m. along with his friends Abbas, Pandi and Sivaraman. Abbas who has been examined as PW 3, has stated that after the deceased had taken food in his house, himself, the deceased and his other friends Pandiarajan and Sivaraman were going in front of the house of the first accused and on seeing them, the second accused asked the deceased as to whether he has brought men to beat them saying that he had picked up a quarrel on the previous day and on account of thus quarrel by the second accused, a wordy quarrel arose between the second accused and the deceased. He would also say that the second accused slapped the deceased on his cheek and himself, Pandi and Sivaraman separated them and at that time, the accused 1 and 2 were pushing Ponraj by holding his neck and PW5 1, 2 and Chandra came there, PW5 1 and 2 would say that on 18. 7. 1986 at about 3 p. m. , while they were in the house, they heard a commotion in the road and on hearing the same, they rushed out of the house since the deceased had a quarrel with the accused on the previous day, at the same time and they found the accused taking Ponraj by holding his neck and PW 1 pulled Ponraj by holding his hand to separate him from the accused. PW5 1 to 3 would also say that the second accused caught hold of the Saree and beat her on the neck and pushed her down and she fell down. The evidence of PW5 1 to 3 would thus indicate that on 18. 7. 86 at about 3 p. m. , the second accused questioned the deceased as to whether he has brought men to beat them in pursuance of the quarrel they had the previous day which resulted in a wordy quarrel and the slapping of the deceased by the second accused. The wordy quarrel has become a scuffle. 7. 86 at about 3 p. m. , the second accused questioned the deceased as to whether he has brought men to beat them in pursuance of the quarrel they had the previous day which resulted in a wordy quarrel and the slapping of the deceased by the second accused. The wordy quarrel has become a scuffle. The accused 1 and 2 were pushing Ponraj by holding his neck and PW 1 was pulling him to separate him from the accused and which resulted in PW 1 falling down on the ground and the first accused also had fallen down. The questioning of the second accused on seeing Ponraj in the company of three other persons in front of the house cannot be said to be an unreasonable one, since they have already quarrelled on the previous day on account of the behaviour of the deceased. In the scuffle and melee that ensured, the first accused as well as PW 1 had fallen down. It may be noted that the deceased was accompanied by three youngsters when they happened to come near the house of the first accused and in the scuffle, the first accused who is an aged person had fallen down. It was at this juncture, the second accused has caught hold of the deceased. P. W. 2 has stated even in chief examination that the second accused stopped the deceased Ponraj by catching hold of his neck on account of his father falling down. This evidence of PW 2 indicates that the second accused had caught hold of the deceased in order to prevent him from assaulting his father who has already fallen down. It was at this juncture, the first accused who had fallen down, tried to get up and in the kneeling position, took the pen knife from his waist and stabbed the deceased first on his stomach, then on his left chest. PW-2 had rushed to hold the deceased and she also fell down when Ponraj fell down after receiving the stab and in that process, her Saree has also been soaked with blood. The dress of PW 3 has also been stained with blood of Ponraj who had sustained the injuries due to stabbing. PW-2 had rushed to hold the deceased and she also fell down when Ponraj fell down after receiving the stab and in that process, her Saree has also been soaked with blood. The dress of PW 3 has also been stained with blood of Ponraj who had sustained the injuries due to stabbing. PW 3 had brought the ambulance from the nearby Fire Station and took Ponraj to the hospital where he died within 10 minutes after being admitted as spoken by the Medical Officer PW 10. PW 10 has given the wound certificate under Ex. P-4 for the injuries found on the body of the deceased and he had also sent the death intimation. Two incised wounds as detailed in Ex. P-4 were found by PW 10 on the body of the deceased. ( 18 ) ON receipt of the First Information Report PW 17 has visited the scene of occurrence and after conducting usual investigation, and holding the inquest, the next day he had sent the body of Ponraj to the hospital for post-mortem. PW- 11 the Medical Officer attached to the Government Hospital, Dindigul has conducted the autopsy on the body of the deceased Ponraj and he has found the injuries which are more fully described in the post -mortem certificate under Ex. P-6. According to PW 11 injury Nos. 1 and 2 with the corresponding internal injuries could have been caused by a weapon like M. O. 1 and injury No. l with corresponding internal injuries are necessarily fatal to cause the death of the deceased. M. O. 1 has been recovered by PW 17 during the course of his investigation after the arrest of the first accused on 20th July, 1986 at about 4 p. m. in pursuance of the confession statement given by him the admissible portion of which is Ex. P-8 PW 17 had also sent the first accused to the Government Hospital for treatment since there were injuries on him. PW s 1 and 2 have categorically stated in their evidence that the first accused who had fallen down, had taken the pen knife from his waist and after opening it, had given a stab on the stomach of the deceased. PW 1 in particular, has stated that M. O. 1 penknife was with a key-chain. PW s 1 and 2 have categorically stated in their evidence that the first accused who had fallen down, had taken the pen knife from his waist and after opening it, had given a stab on the stomach of the deceased. PW 1 in particular, has stated that M. O. 1 penknife was with a key-chain. The stabbing of Ponraj by the first accused was with the pen knife he had in his waist attached to a key-chain is not in dispute in view of the evidence of PW s 1 and 2. The evidence of PW 11 the Medical Officer who has conducted the post-mortem, is specific in stating that the injuries 1 and 2 with corresponding internal injuries found on the deceased could have been caused by a weapon like M. O. 1. Therefore, when we consider the evidence of PW5 1, 2 and 11, we can come to the safe conclusion that the deceased Ponraj was stabbed by the first accused with a pen-knife M. O. 1 which was in his waist and Ponraj died in pursuance of the stab injuries sustained by him. ( 19 ) IT is only on the basis of the material evidence which we have now seen, we have to decide whether the first accused has committed the offence of murder and the second accused has abetted the same. We have already seen that the conduct of the deceased Ponraj on the previous day was the root cause of the quarrel on that date. We have also seen that even on the date of occurrence, the second accused had questioned Ponraj as to whether he has brought men to beat them in pursuance of the previous days incident since he was found in the company of three of his friends. The evidence of PW s 1 to 3 shows that a quarrel has arisen on account of the pushing of Ponraj by the accused 1 and 2 by holding his neck and PW 1 pulling Ponraj from them. That both PW 1 and the first accused had fallen down is also established by the evidence of PW5 1 to 3. The evidence of PW s 1 to 3 shows that a quarrel has arisen on account of the pushing of Ponraj by the accused 1 and 2 by holding his neck and PW 1 pulling Ponraj from them. That both PW 1 and the first accused had fallen down is also established by the evidence of PW5 1 to 3. The Medical Officer who has attended on the first accused has found one incised wound on his right palm inner side and multiple abrasions were seen on the front side of the right knee and front side of the left knee of the first accused. It may be that these injuries might have been caused when the accused was in the kneeling position at the time of stabbing the deceased. There are three more abrasions on the right buttock, on the back of the right elbow joint and on the back of left hand of the first accused which could have been caused on account of his falling on the ground and may be due to the rolling in the scuffle. The first injury viz. , incised wound cannot be said to have been properly explained by the prosecution, since it was the first accused who was having the pen knife in his hand. It is not the case of the prosecution that the deceased was armed with any weapon at the time of scuffle. Therefore, an inference has to be drawn to the effect that the first injury on the person of the first accused should have been caused during his attempt to stab the deceased. The question now before us is whether the prosecution has made out a case of 302, I. P. C. , against the accused on the above evidence. It is not the case of-the prosecution that the first accused came to the scene of occurrence armed with any deadly weapon. It is the case of the prosecution that the first accused took out the pen knife attached to a key-chain from his waist and after opening it, gave the stabs to the deceased. There is no evidence on behalf of the prosecution that the deceased was armed with any weapon with which he attempted to attack the accused. On the other hand, it shows that the first accused has committed the offence during the course of the scuffle with the deceased. There is no evidence on behalf of the prosecution that the deceased was armed with any weapon with which he attempted to attack the accused. On the other hand, it shows that the first accused has committed the offence during the course of the scuffle with the deceased. The scuffle between the accused on the one hand and the deceased on the other, the falling down of the first accused, the manner in which he had taken out the knife from his waist and stabbed the deceased after opening it, all go to show that the first accused has caused the stab injuries on Ponraj which resulted in the death of Ponraj without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the first accused having taken undue advantage or acted in a cruel or unusual manner. Exception 4 to Section 300, I. P. C. will stand attracted, on facts. It is not as if the stab injuries have been inflicted on Ponraj by the first accused in exercise in good faith of the right of private defence of his person or property as contended by the learned Counsel appearing for the appellants. The argument of the learned Counsel appearing for the appellants that the accused have committed the offence of culpable homicide not amounting to murder in exercise of their right of private defence, therefore, is not a tenable one. ( 20 ) ON a consideration of the materials placed before us, we came to the conclusion that the conviction of the first accused under Section 302, I. P. C. is, therefore, liable to be set aside and he has to be convicted under Section 304 (Part II) I. P. C ( 21 ) COMING to the part played by the second accused, we have seen that the second accused has caught hold of the deceased after his elderly father, the first accused, had fallen down on the ground. The deceased was accompanied by three of his friends at the time of the incident. In the above circumstances, we are inclined to hold that the holding of the deceased by the second accused would only be to prevent the deceased from attacking the first accused who had already fallen down which may have facilitated the first accused to commit the offence of stabbing. In the above circumstances, we are inclined to hold that the holding of the deceased by the second accused would only be to prevent the deceased from attacking the first accused who had already fallen down which may have facilitated the first accused to commit the offence of stabbing. The intention of the second accused cannot be said to aid the first accused in committing the offence. In this connection, we shall refer to the decision reported in Shri Ram v. State of U. P. wherein the Supreme Court has held as follows: ( 22 ) IN order to constitute abetment, the abettor must be shown to have intentionally aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. ( 23 ) THE evidence placed on behalf of the prosecution has disclosed that the act on the part of the second accused in catching hold of the deceased Ponraj has facilitated the commission of the crime by the first accused. But it has not shown that he had intentionally aided the commission of the crime. It may be that the first accused would not have committed the crime without the interposition of the second accused. But, that is not sufficient to hold that the second accused has intentionally aided the first accused in committing the offence in order to find him guilty under Sections 302 read with 109 I. P. C. Therefore, we hold that the prosecution has failed to prove the charge under sections 302 read with 109 I. P. C. against the second accused. ( 24 ) THE net result is that conviction and sentence imposed on the first accused under Section 302 I. P. C. are set aside and the first accused in convicted under Section 304 (Par II) I. P. C. and sentenced to undergo rigorous imprisonment for five years. The conviction and sentence imposed on the second accused under Section 302 reads with Section 109 I. P. C. are set aside and the second accused is acquitted. With the above modification the appeal is dismissed. Appeal allowed partly.