Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THE appellants! A-1 and A-2 have filed this appeal, challenging the Judgment in S. C. No. i20 of 1986 on the file of the II Additional Sessions, -Judge. Trichy, convicting the appellants for the offences under Section 302 read with 34 I. P. C. , (two counts), and Section 324 read with 34 I. P. C. and sentencing them to undergo life imprisonment for each count under Section 302 read with 34 I. P. C. and to undergo RI, for two years for the offence under Section 324 read with 34 I. P. C. while convicting and sentencing the i st appellant for the offence under Section 324 read with Sii I. P. C. also to undergo RI, for one year. The substantive sentences were directed to run concurrently. ( 2 ) THE accusation against the accused! appellants is that on 14-3 i986 at about ii. 00 A. M. at Sundankudi Thattankurichi village, Ariyalur Taluk. A-1, the first appellant herein by means of a bala-knife (M. O. i) on being handed over by A-2, attacked the is deceased (D-1) Chandrakasan by cutting on the back side of his head, stabbed on the 2nd deceased (D-2) Karuppaiah, on his left forearm, left leg and abdomen, caused injuries on P. W. 2 Chellakkannu on his right leg and also attempted to attack P. W. i Govindaraj, as a result of which D-1 and D-2 fell down and died at the spot and P. W. 2 sustained simple injuries. ( 3 ) THE brief facts of the prosecution case are as follows: (a) The appellants are brothers. D-1 Chandrakasan and P. W. 2 Chellakkannu are the brothers of P. W. i Govindaraj. D-2 Karuppaiah is the paternal uncles son of P. W. 1. P. W. 5 Pitchai Moopanar is a paternal uncle of P. Ws, 1 and 2. The appellants are pangaalis of P. Ws. i and 2. Both the appellants and the prosecution parties hail from the same village called Sundakudi. Both the parties have got their own lands at Thattaankuzhi village situate at the eastern side of the house of the prosecution parties. (b) P. W. 5 Pitchai Moopanar married one Saradam as his third wife, since his other two wives had no issues out of the said wedlock. Saradam gave birth to three children, In the course of time. Both the parties have got their own lands at Thattaankuzhi village situate at the eastern side of the house of the prosecution parties. (b) P. W. 5 Pitchai Moopanar married one Saradam as his third wife, since his other two wives had no issues out of the said wedlock. Saradam gave birth to three children, In the course of time. A-1 had developed illicit intimacy with the said Saradam. When this was known to the villagers, A-1 was called and severely warned by P. Ws. i, 2 and others. (c) P. W. 5 getting angry over the affairs of the said Saradam with A-1, beat her one day. On knowing this, A-1 abused P. W. 5 and threatened him by saying that if he would further beat her, he would kill him. Then P. W. 5 informed this incident to P. Ws. 1, 2, D i and D-2. Thereafter, P. Ws. i and 2 went to A-1 and asked him to sever his connection with the said Saradam. But A-1 did not care. (d) P. W. 5 gave a complaint against A-1 with reference to this incident in Keelappalur police station. P-W. 12 Rengaraj, the Head Constable, after receiving the complaint EX. P. 3 from P. W. 5, called both the parties and warned A-1, not to have any more connection with the wife of P. W. 5, EX. P. 4 is the compromise muchalika, written by both the parties in the police station. (e) Thereafter P. W. 5 fearing that his life was at stake and expecting danger at the hands of A-1, settled his property in favour of D-2 Karuppaiah, his brothers son, in order to enable him to take care of his three children, after his life time. This also created a grudge in the mind of A-1. In retaliation to this, A-1, through the said Saradam arranged to send legal notice to P. W. 5, objecting to the above settlement. In this background, the fateful occurrence had taken place on 143- i986. (f) P. W. 3 Selvam is the son of P. W. 1 Govindarajan. In the early morning of 14-3-1986, at about 7. 30 A. M. Di, D2 and P. W. 2 went to their respective fields at Thattankurichi village for ploughing. P. W. 1 also went to his field for cutting the bund. (f) P. W. 3 Selvam is the son of P. W. 1 Govindarajan. In the early morning of 14-3-1986, at about 7. 30 A. M. Di, D2 and P. W. 2 went to their respective fields at Thattankurichi village for ploughing. P. W. 1 also went to his field for cutting the bund. P. W. 3 Selvam, who also went along with P. W. i was grazing the cattle near the field of the appellants. D-2 Karuppaiah also grazing his cattle in his field at that time. (g) At that point of time cattle belong to P. W. 1 went into the appellants field. The ist appellant, who was present then drove out the cattle from his field, beat P. W. 3, and pushed him aside. P. W. 3 fell down and sustained injury on his left knee. A-1 asked him to in form this to P. W. 1. So. P. W. 3 went to the field of P. W. i, who was cutting the bun d then, and intimated about what had happened. P. W. 1 pacified him saying that he would lookafter the same and asked him to take care of the cattle. It was at about ii. 00 A. M. (h) The land belongs to A-1 is situate at the extreme southern side. The lands of D 1 D-2. P. W. 1 and P. W. 2 are situate at the extreme northern side. In between these hinds, there is a land belonging to one Murugaiah Moopanar. (i) A-1 from his field came to wards north, where P. Ws. i and 3 were standing. When he came there, he was shouting and abusing. On seeing the arrival of A-1, P. W. 1 had asked A1 as to why he beat P. W. 3. A-1 in turn replied that P. W. 3 abused him, and so he also gave him back by beating at him. Then P. W. i objected to his beating, by abusing him in filthy language. At that juncture, A-1 shouted during the course of this quarrel, P. W. 2 Chellakannu, D-1 Chandrakasan and D-2 Karuppaiah, came there from their respective fields and asked both P. W. 1 and A-1, not to have any more quarrel. During that time, A-2 Somu, the elder brother of A-1 came at the spot and handed over M. O. i bala-knife to A-1, and asked him to finish them all. During that time, A-2 Somu, the elder brother of A-1 came at the spot and handed over M. O. i bala-knife to A-1, and asked him to finish them all. Then, A-1 after taking the bala-knife from A-2 attempted to attack P. W. 1. At that time, D i intervened and asked them not to indulge in violence. However, A-1 while attempting to attack P. W. 1 with M. O. i bala-knife, hit D-1 on the backside of his head, on receipt of which injury D-1 fell down. (j) D-2 came running near A-1, asking him not to cut. At that time, A-1 stabbed D2 Karuppaiah, and D-2 warded off the said attach with his left hand and the cut fell on his left palm, A-1 again with M. O. 1, bala-knife stabbed on the left leg of D2, and while D-2 was standing aghast. A-1 stabbed on the lower abdomen of D-2, with the result, the intestine came out and D-2 fell down on the ground. (k) On seeing this glory sight, P. W. 1 Govindaraj and P. W. 2 Chellakannu tried to catch the appellants. When P. W. 2 went ahead of A-1, and tried to catch him. A-1 stabbed him on his right leg. Even then, P. W. 2 -Chellakannu, caught A-1. But again A-1 stabbed with bala-knife on the right leg of P. W. 2. The bala - knife hit on the leg of P. W. 2 and then gone into the earth. Thereafter in order to prevent A-1 from removing the bala-knife from the earth, both P. Ws. 1 and 2 caught hold of the knife. A-1 and A-2 tried to remove it. In the mean time, P. W. 3, who was grazing the cattle then, on seeing the incident cried aloud The persons, who were working in the nearby fields, on hearing the noise came to the spot. Thereafter, both the appellants leaving their grip over bala-knife took to their heels. (I) Then P. W. 1 took both the victim, by putting them in two cots to General Hospital at Ariyalur. But on the way, both died. Therefore, he asked others to take P. W. 2 to Ariyalur Hospital. He took back the bodies of the deceased to the village. (m) At 2. 30 P. M, on 14-3-1986, P. W. 1 went to Keelapazoor police station and gave Ex. But on the way, both died. Therefore, he asked others to take P. W. 2 to Ariyalur Hospital. He took back the bodies of the deceased to the village. (m) At 2. 30 P. M, on 14-3-1986, P. W. 1 went to Keelapazoor police station and gave Ex. P. 1 complaint to P. W. 16 Jayaraman. Sub-inspector of Police. On receipt of Ex. P. 1 complaint, P. W. 16 registered a case in Cr. No. 38 of 1986 for the offence under Section 302 I. P. C. While giving Ex. P. i complaint, P. W. 1 also produced M. O. i bala-knife. Ex. P. i9 is the printed F. I. R. Then. P. W. 16. arranged to despatch these documents to the Court as well as to the senior police officials. (n) In the mean time, P. W. 2, who was taken to General Hospital, Ariyalur, straight away went to the police station at Ariyalur at about 1. 30 P. M. , and gave Ex. P. 2 complaint to P. W. i5 Govindaraj. Head Constable. P. W. i5, on the basis of Ex. P. 2 complaint, registered a case in Cr. No, 52 of i986 on the life of Ariyalur police station for the offences under Sections 302 and 324 I. P. C. and sent P. W. 2 to Hospital for treatment. Ex. P. i8 is the printed F. I. R. after preparation of these documents. P. W. 15 sent Exs. P. 2 and P. i8, to the jurisdictional police station viz. Keelapazoor police station. (o) P. W. 2 went to the General Hospital along with police memo. P. W. 8 Doctor Heera, at 2. 00 P. M. on 14-3-1986, examined P. W. 2 and found a lacerated injury 4 cm. x i cm. just skin deep in the upper medial aspect of right leg and an incised wound 6 cm. x 2 cm. x 3 cm depth over the medial aspect of the right leg above the middle aspect. P. W. 8 Doctor issued Ex. P. 9 wound certificate to P. W. 2 and opined that the Injuries were simple. (p) P. W. 17. Jayaraman, the Inspector of Police, on receipt of Ex. P. i9 F. I. R. at about 3. 00 P. M 4. 00 P. M. and prepared Ex. P. S observation mahazar and Ex. P. 20 rough sketch, in the presence of P. W. 7 Swaminathan. (p) P. W. 17. Jayaraman, the Inspector of Police, on receipt of Ex. P. i9 F. I. R. at about 3. 00 P. M 4. 00 P. M. and prepared Ex. P. S observation mahazar and Ex. P. 20 rough sketch, in the presence of P. W. 7 Swaminathan. At about 4. 45 P. M. P. W. 17 recovered M. O. 2 bloodstained earth and M. O. 3 sample earth under Ex. P. 6 mahazar attested by P. W. 7. At 5. 30 P. M. he came to the house of D-1 and D-2, and prepared another rough sketch Ex. P. 21, and observation mahazar Ex. P. 7 where the dead bodies were lying. Between 6. 30 P. M. and 9. 00 P. M. P. W. 17 conducted inquest over the dead body of D-1 Chandrakasan. The said inquest report is Ex. P. 22. Thereafter he conducted inquest over the dead body of D2 Karuppaiah. The said inquest report is Ex. P. 23. During the course of inquests, the examined P. Ws. 1. 3 and others, There after he sent the dead bodies of the deceased through P. W. 13 Police Constable, for being entrusted to Doctor for conducting postmortem. At 11. 00 P. M. he recovered M. 0. 4 and M. O. 5, two costs under Ex. P. 8 mahazar attested by P. W. 7. (q) On 15-3-1986, at about 6. 00 P. M. P. W. 17, on information, went to Kalloorpalayam, arrested A-2 and brought him to the police station after interrogation he sent A-2 for judicial custody, (r) On 15-3-1986 at about 1. 00 A. M. , P. W. 13 Arokiasamy, Police Constable handed over the dead bodies along with the requisition of the Inspector of Police to the Doctor for conducting post-mortem. At about 10. 45 A. M. , P. W. l1 Doctor Mohamed Iqbal attached to Government Hospital, Ariyalur, commenced postmortem over the body of D-1. Chandrakasan, and found the following injuries: 1. An incised wound of 10 cm. X 1 cm, at the centre, vertically on the scalp, extending from the interparietal region to the occipital bone. Cut edge of the bone is seen through the wound over the entire length. 2. An abrasion of 4 cm. x 3 cm, over the front of the right leg, 3 below right knee. 3. An abrasion of 2 cm. X 1 cm, at the centre, vertically on the scalp, extending from the interparietal region to the occipital bone. Cut edge of the bone is seen through the wound over the entire length. 2. An abrasion of 4 cm. x 3 cm, over the front of the right leg, 3 below right knee. 3. An abrasion of 2 cm. x 1 cm on the front of right leg 2 below injury No. 2. On exploring injury No. 1 a clear cut fracture skull present for 10 cm. length. The fracture extending anteriorly in zig zag manner, towards the right side for 8 cm, Length, over the right parietal bone. Meninges are tom vertically corresponding the injury for 8 cm, length - Collection of blood on the brain under the meninges was present, corresponding to injury No. 1. TI P. W. 11-Doctor issued Ex. P. 12 postmortem certificate for D-1. He opined that D-1 would appear to have died of shock and haemorrhage due to the injury sustained by him. (s) P. W. 18-Doctor kuppusamy attached to Govt. Hospital. Ariyalur, commenced post-mortem on the dead body of D-2 Karuppaiah at 1. 00 P. M. on 15-3-1986. and found the following injuries: 1. A deep lacerated injury over the left leg upper part lateral aspect 7 cm, x 1 cm. x 3 cm, depth. No injury over the knee joint. 2. A deep incised wound in the lower part of the abdomen inguinal region left side about 10 cm, x 4 cm. with deep penetration. Bevelled edges, There was protrusion of intestinal contens. 3. Abrasions found on the left upper arm, right shoulder. On internal examination, corresponding to injury No. 2, in abdomen there is protrusion of lower part of small intestine through the vent in the inguinal region left side about 10 cm. in length 4 cm in breadth, bevelled edges. The protruded intestine will be around 2 cm. in length. There was extension of 1000 ml. blood collection in the lower part of the abdomen, two fracture seen in the mesentry with tear of the mesentric blood vessels. A deep rint in the lower part of small intestine 3 cm. In diametre present. Corresponding to injury No. 1, deep lacerated injury over the left leg upper part lateral aspect 7 cm. x 1 cm. x 3 cm, depth. P. W. 18-Doctor issued Ex. P. 24-post mortem certificate for D-2 Karuppaiah. A deep rint in the lower part of small intestine 3 cm. In diametre present. Corresponding to injury No. 1, deep lacerated injury over the left leg upper part lateral aspect 7 cm. x 1 cm. x 3 cm, depth. P. W. 18-Doctor issued Ex. P. 24-post mortem certificate for D-2 Karuppaiah. He was of the opinion that D-2 Karuppaiah would appear to have died of hyper volamia shock due to internal bleeding. t. after post-mortem. P. W. 13 Police Constable recovered M. Os. 6 and 7, the clothes of D1 and M. Os, 8 to 10, the clothes of D-2, from the respective bodies and handed over the same at the Police Station, and entrusted the dead bodies to the relations. u. On 1-4-1986 at about 6. 00 A. M. on information P. W. 17 Inspector of Police went to Chettythirukonam, and arrested A-1. He was brought to the police station at 9. 00 A. M. and since he was found with some injuris in his leg. P. W. 17 sent A-1 to the Government Hospital. v. P. W. 10Doctor Gandhimathi, attached to Government Hospital. Jayankondam, at 8. 15 P. M. , on 1-4-1986 examined A-1 and found a healed wound of 6 cm. x 1/2 cm. over the sole of the left foot extending between the 2nd arid 3rd toe. A-1 informed P. W. 10 Doctor that he sustained the said injury on 14-3-1986 at 12. 00 noon while he tried to snatch a bala-knife from one Govindaraj (P. W. 1 ). Ex. P. 11 is the wound certificate issued by P. W. 10 to A-1 according to which the injury was simple in nature. w. In the meantime, P. W. 17 Inspector of Police on 20-3-1986 sent Ex. P. 14-requisition to the Court, to send the M. Os, for chemical analysis. On receipt of EX. P. 14 requisition the M. Os, were sent by P. W. 14 - Head Clerk along with the original of Ex. P. 15 letter of the Judicial Magistrate for forensic examination. Ex. P. 16 is the chemical analysts report and Ex. P. 17 is the serologists report. x. Though on the date of occurrence, P. W. 17 arranged to send P. W. 3 Chellakannu, who sustained injury on his knee for treatment. P. W. 3 has not taken treatment. P. 15 letter of the Judicial Magistrate for forensic examination. Ex. P. 16 is the chemical analysts report and Ex. P. 17 is the serologists report. x. Though on the date of occurrence, P. W. 17 arranged to send P. W. 3 Chellakannu, who sustained injury on his knee for treatment. P. W. 3 has not taken treatment. So On 1-5-1986, on the requisition of P. W. 17, the Doctor Sridharan - P. W. 9 examined P. W. 3 and issued Ex. P. 10 accident register extract. However he found no external injury on P. W. 3, who informed the Doctor, that he was assaulted at about 10 A. M. , on 14-3-1986 Friday, by known person with hands. After finishing investigation. P. W. 17 filed the charge sheet on 4-6-1986 against the appellants, for the offences referred to above. ( 4 ) THE trial Court, after committal, framed charges against the appellants under Section 302 read with 34 I. P. C. (two counts) for having committed the murder of D-1 and D-2, under Section 324 read with 34 I. P. C. , for having attacked P. W. 2 -Chellakannu. And against the 1st appellant under Section 324 read with 511 I. P. C. , for having attempted to attack P. W. 1. When the charges were read over and explained to he accused/appellants, they pleaded not guilty, and claimed to be tried. ( 5 ) THE prosecution in order to prove its case, examined P. Ws. 1 to 18, filed Exs, P. 1 to P. 24 and marked M. Os. 1 to 10. ( 6 ) AFTER the evidence was over, the appellants were questioned by the trial Court, under Section 313. Cr. P. C. , to explain the incriminating circumstances found against them available in evidence brought on record. The 2nd appellant chose to deny his complicity in the crime. However, the 1st appellant filed a written statement, admitting his presence at the time of occurrence and his having attacked D-1 and D-2 by way of self defence, since all P. Ws. 1. 2, D-1 and D-2 with bala -knives attempted to attack him. A-1 would also say that A-2 was not present during the course of occurrence. However, the 1st appellant filed a written statement, admitting his presence at the time of occurrence and his having attacked D-1 and D-2 by way of self defence, since all P. Ws. 1. 2, D-1 and D-2 with bala -knives attempted to attack him. A-1 would also say that A-2 was not present during the course of occurrence. ( 7 ) ON conclusion of trial, the learned Sessions Judge, on elaborate consideration of the materials adduced by the prosecution, and the statement of the accused, came to the conclusion that the prosecution has established its case beyond doubt, and convicted and sentenced them as referred to above. Challenging the convictions and sentences, the present action has been resorted to by these appellants, by filing this criminal appeal before this Court. ( 8 ) MR. T. Sudanthiram, learned counsel appearing for the appellants meticulously took us through the entire evidence and strenuously contended that there are lot of infirmities, which have been overlooked by the trial court while rendering judgment, and so the benefit of doubt, which accrued due to, pitfalls, is to be given to the appellants, and as such they are entitled to acquittal. In a nutshell, we could categories the submissions made by learned counsel for the appellants in the following three heads:i The consistent stand that has been taken by A-1, from the beginning that the occurrence had not taken place in the manner as alleged by the prosecution. But when Al was attempted to be attacked by P. Ws. i, 2. D-1 and D-2, with bala-knives. A-1 in order to save himself has exercised his private defence by snatching one of the bala knives and attacked D-1 and D-2. There fore, the appellants are entitled to acquittal under Section i00 I. P. C. II. The admission made by the witnesses during the course of cross-examination, the suggestions put by the accused, and the written statement filed by A-1, would make it clear that in the alternative, at the most it could be said that A-1 has exceeded his right of private defence, and as such he is liable to be convicted by invoking exception 2 to section 300 I. P. C. under Section 304 Part 1 I. P. C. III. At any rate, even according to the prosecution, the occurrence had taken place out of a sudden quarrel in a heat of passion, and as A-1 had caused only single injury on both the deceased, by invoking Exception 4 of Section 300 I. P. C. , an offence under Section 304 Part II I. P. C. could be said to have been made out against A-1, and not an offence under section 302 I. P. C. ( 9 ) LEARNED Additional Public Prosecutor has countered the above submissions made by learned counsel for the appellants. ( 10 ) BEFORE considering the submissions made by learned counsel for the appellants, let us now delve in the process of appreciating the evidence adduced by the prosecution witnesses, more particularly, with regard to the proof of motive and occurrence. (a) Regarding motive, we have got the evidence of P. Ws. I, 2, 3 and 5. P. W. 5 Pitchai Moopanar, who is the paternal uncle of P. Ws. 1 and 2 was threatened by A-1, that he would kill him, if he would further beat his third wife Saradam, with whom A1 had illicit intimacy. On knowing this illegal affairs, P. Ws. i, 2, D-1 and D-2 questioned A-1 and warned him. This aspect is also being spoken to by another witness viz. P. W. i2, through whom Exs, P. 3 and P. 4 were marked, (b) It is clear from a reading of Ex. P. 3 - complaint given by P. W. 5, against A-1 long prior to the occurrence, stating that A-1 threatened P. W. 5. P. W. 1, P. W. 2, D-1, D-2 and others by saying that he would kill them all, and A-1 entered into their house and caused damage. It is also seen from Ex. P. 3, that since P. W. 5 apprehended danger to his life at the hands of A-1, he executed a settlement deed in favour of D-2 Karuppaiah. In pursuance of Ex. P. 3 complaint, enquiry was conducted by P. W. 12-Head Constable attached to Keelappalur police station, and both parties were advised not to indulge in any more violence, for which Ex. P A muchalika was written. Therefore, it is clear that motive part has been clearly established through the oral evidence of P. W. 5 and P. W. 12, and the document tray evidence of Exs. P A muchalika was written. Therefore, it is clear that motive part has been clearly established through the oral evidence of P. W. 5 and P. W. 12, and the document tray evidence of Exs. P. 3 and P. 4, This aspect of evidence has been corroborated by the evidence of P. Ws. 1 and 2. (c) Furthermore, the evidence of P. W. 3, who speaks about the first incident, that had taken place in the field of A-1, would throw some light about the motive. When the cattle belonged to P. W. 1 entered the field of A-1, P. W. 3 Chellakannu was beaten by A-1, due to which he fell down and sustained injuries. At that time, A-1 asked P. W. 3 to inform his father, P. W. 1. This would go to show that A1 has not exposed his grudge against these persons, but he waited for an opportunity to finish them all, in order to take revenge, since A-1 has lost connection with his concubine, the third wife of P. W. 5, and the property, which has been settled by P. W. 5 in favour of D-2 Karuppaiah. ( 11 ) IN the above background, we have to analyse the evidence of P. Ws. i. 2 and 4, with reference to the main occurrence: (a) Admittedly the occurrence had taken place in the field belonging to one Murugaiah Moopanar. It was neither at the field of P. W. 1 nor at the field of A-1. It is quite clear that the main occurrence had taken place, in sequence to the first incident, which has been narrated by P. W. 3. According to P. W. 3, as soon as he informed P. W. 1, about the first incident, P. W. 1. asked P. W. 3 to take care of the cattle, and then he went towards A-1, who was coming towards the field of P. W. i. According to the prosecution the time of occurrence was at about ii. OO A. M. As soon as P. W. 1 saw A-1, he shouted at him, as to why he beat his son P. W. 3. Then there was a wordy quarrel. OO A. M. As soon as P. W. 1 saw A-1, he shouted at him, as to why he beat his son P. W. 3. Then there was a wordy quarrel. A-1 would also say that they were responsible for the property of-P. W. S being settled in favour of D-2 Karuppaiah, for the severing of his connection with the said Saradam, the third wife of P. W. S, and he challenged that he would kill them. This aspect of evidence is spoken to by P. Ws. i and 2. (b) At that juncture, A-2 Somu, came to the spot, and handed over M. O. 1 - balaknife to A-1. Then only A-1 attempted to attack P. W. 1 and caused injuries on D-1, D-2 and P. W. 2. The injuries sustained by D-1 and D-2, as narrated by P. Ws. i and 2 have been corroborated by the medical testimony adduced, by P. Ws. i3 and 24. and the evidence relating to the injuries sustained by P. W. 2, was corroborated by the medical evidence of P. W. B. 8 (c) Furthermore, A-1 also sustained injury while he tried to remove the Bala-knife from the hand of P. W. 1. This as pect of evidence adduced by the ocular witnesses has been corroborated by P. W. 10 Doctor, who treated A-1 for his simple injury. So, the evidence of these witnesses viz, the ocular testimony corroborated by the medical testimony, would go to show that the occurrence had taken place in the manner alleged by the prosecution. ( 12 ) OF course, there are some con traditions as pointed out by learned counsel for the appellants, which are so minor and in our view they could not affect the core of the prosecution. M. O. i-Balaknife is of the size of 61, in which the blade portion is ii. P. Ws. 13 and 24, who conducted postmortem over the bodies of D-1 and D-2 respectively would say that the injuries found on the deceased would have been caused by means of M. O. i-knife. So, there is no difficulty in coming to the conclusion that P. W. 2 and D1 and D-2 were attacked by the hands of A-1, as narrated by the eye -witnesses in this case. ( 13 ) MR. So, there is no difficulty in coming to the conclusion that P. W. 2 and D1 and D-2 were attacked by the hands of A-1, as narrated by the eye -witnesses in this case. ( 13 ) MR. Sudanthiram, learned counsel for the appellants would effectively contend that there was enmity between the prosecution witnesses and the deceased on one side and A-1 on the other side, and that therefore, the version given by the prosecution witnesses with reference to the occurrence, would be a coloured version, which has to be viewed with care and caution, in the light of the written statement filed by A 1, pleading self defence while he was questioned under section 313 Cr. P. C. Learned counsel would further submit that A-1 need not establish his case beyond doubt, but it is enough for him to show his case by preponderance of probability. ( 14 ) LET us now consider the statement of A-1, filed during the course of the proceedings under Section 313 Cr. P. C. in order to see whether the case of the defence has been established at least by preponderance of probability. The contents of the statement filed by A-1 are as follows: On the date of occurrence, P. W. 3 allowed his cattle to graze the field belonging to me. I questioned him. But he used abusive language and insulted me. Then I hit him and drove out the cattle from my field. Thereafter I went to my field. At that time, P. W. 1. P. W. 2, D-1 and D-2 came from all the four sides, carrying Bala-knives in their hands and surrounded me. I got afraid, and went southeast. When they began to come near me, I ran by crossing the field of Murugaiah Moopanar. At that time D-2 attempted to attack me. Then I caught the rod portion and prevented the same from hitting against me. In that process that Bala-knife had gone into the earth D-2 immediately removed it from the earth and again attacked me. I bowed down, but the hit fell on the leg of D-2. In the meantime, P. W. 1 came and attacked me with Bala-knife. When I prevented the same, I received, injury on my leg. Thereafter I snatched away, the Balaknife. D-1, with the knife stabbed me. I bowed down, but the hit fell on the leg of D-2. In the meantime, P. W. 1 came and attacked me with Bala-knife. When I prevented the same, I received, injury on my leg. Thereafter I snatched away, the Balaknife. D-1, with the knife stabbed me. In order to prevent the said attack, I used the knife, which inflicted injury on the head of D-1. Again D-2 attempted to attack me with Bala-knife, and when I defended the said attack, accidentally, my Bala knife fell on his abdomen. P. W. 2 also with Bala knife came and attacked me, and as self-defence I stabbed of his leg and then ran away. ( 15 ) OF course, to establish the defence theory, by at least the preponderance of probability, some materials must have been placed before the Court. According to A-1, all the four persons, P. W. 1, P. W. 2, D-1 and D-2 surrounded him with Bala-knives and attempted to attack him. If that was so, while A-1 tried to prevent the attack made by one person, the other three persons would have attacked A-1, who was unarmed then Furthermore, the version of A-1 to the effect that he only caused injury on the leg of P. W. 2, as in the way of his exercising self-defence, reflects the artificiality. Moreover, if such an incident had happened, as put forward by A-1, there is no reason as to why A-1 was absconding for a long number of days, till he was apprehended on 1-4-1986 by P. W. 17, the Inspector of Police. So, in these circumstances, we are not able to accept the version of the defence, when we accept the ocular testimony adduced by P. Ws. 1 to 4, with reference to the main occurrence against A-1, which is fully in consonance with the medical evidence let in by the Doctors. ( 16 ) IN order to substantiate the submissions made by him, learned counsel for the appellants cited an unreported decision of a Division Bench of this Court, in Shanmugham v. State. That was a case, in which two persons were murdered. The trial Court though convicted the accused under Section 302. ( 16 ) IN order to substantiate the submissions made by him, learned counsel for the appellants cited an unreported decision of a Division Bench of this Court, in Shanmugham v. State. That was a case, in which two persons were murdered. The trial Court though convicted the accused under Section 302. I. P. C. , this Court in appeal, after considering the facts and circumstances of the case, modified the conviction into one under Section 304 Part I I. P. C. On the strength, of the above referred to decision of this Court, learned counsel would request this Court, not to be influenced by the number of deaths, and if at all the evidence of the ocular witnesses is believed, A-1 could be convicted only under Section 304 Part I I. P. C. , and not under Section 302 I. P. C. In the above referred decision, the accused was working as a - Driver in a Transport Corporation. At the time of occurrence, the started from his house to go to his office, in uniform. At that time P. W. 1 in that case and others stopped and questioned him. There was a wordy quarrel ensued, and in that process. D-1 intervened to protect her husband. P. W. 1, in which event, the accused had chosen to inflict one stab on her. It was held in the said judgment, with reference to D-2 in that case, that the accused had no motive against him. A reading of the said judgment would show that the injuries sustained by D-1 and D-2 were not on vital parts. Therefore, this case could not be made applicable to the facts of the present case, because, as referred to earlier, in this case A-1 had the motive against the entire family of P. W. 1. Furthermore, A-1 used a very long weapon to cause injuries on the vital parts of D-1 and D-2. ( 17 ) LEARNED counsel for the appellants relied upon a decision in Surinder Kumar v. Union Territory. Chandigarh, in order to show that the act committed by A-1 would attract Exception 4 to Section 300 I. P. C. , in order to make A-1 liable to be convicted under Section 304 Part I I. P. C. The principle laid down in that case is as follows: To invoke this Exception, four requirements must be satisfied, namely. Chandigarh, in order to show that the act committed by A-1 would attract Exception 4 to Section 300 I. P. C. , in order to make A-1 liable to be convicted under Section 304 Part I I. P. C. The principle laid down in that case is as follows: To invoke this Exception, four requirements must be satisfied, namely. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion and (iv) the assailant had not taken any undue advantage or acted in a cruel manner The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly. In the instant case, though there was a quarrel, it cannot be said that the act of A-1 was unpremeditated. As discussed earlier, he had the grievance against all of them. With reference to his threatening to kill them all, even long back. And a complaint Ex. P. 3 was given by P. W. 5 to the P. W. 12, apprehending danger to his life and life of D-1. Moreover, D-2 Karuppaiah came to the spot only to request A-1, not to have quarrel with P. W. 1. But A-1 attacked D-2 on the right portion of his abdomen, which resulted in his intestine coming out. This would show that the person (D-2) who was unarmed and came for pacifying A-1 was brutally attacked by A-1. As such, A-1 had acted cruelly. So, in these circumstances, Exception 4 to Section 300 I. P. C. , cannot be invoked, to bring 1997 Page 11 of 12 the offence committed by A-1, under section 304 Part I I. P. C. ( 18 ) LEARNED counsel for the appellants cited another decision reported in Arvind Kumarv. As such, A-1 had acted cruelly. So, in these circumstances, Exception 4 to Section 300 I. P. C. , cannot be invoked, to bring 1997 Page 11 of 12 the offence committed by A-1, under section 304 Part I I. P. C. ( 18 ) LEARNED counsel for the appellants cited another decision reported in Arvind Kumarv. State of Uttar Pradesh, That was a case, where sudden quarrel ensued between two students while they were playing cards in the hostel, which led to an altercation, and that the accused/appellant picked up a knife and gave two blows on the deceased, resulting in his instantaneous death. In that case, there was no premeditation, and there also it could not be said that the accused had acted cruelly. So, the facts of the above referred to decision would not be applicable to the facts of the present case. ( 19 ) A Division Bench of this Court in Kaliyaperumal v. State rep. by S. I. of Police. Paravakottai while elaborately considered the scope of self-defence. observed that when the prosecution has established its case, it is incumbent upon the accused, under Section 105 of the Evidence Act, to establish the case of his private defence, by showing probability. As per this decision, the accused need not plead self defence specially or specifically or lead evidence. If it is apparent from the evidence on record, whether produced by the prosecution or by the defence, that the general exception would apply, then the presumption is removed and it is open, to the Court to consider whether the, evidence proves to the satisfaction of the Court, that the accused comes within the Exception. If upon a consideration of the evidence on both sides the Court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded. While making such observation, the court followed the judgment rendered by the Supreme Court in Deo Narainv. State of U. P. . In that case the complainant party were in possession of stick while the accused was in possession of spear, and as a result of the injury caused by the accused with spear death was caused. While making such observation, the court followed the judgment rendered by the Supreme Court in Deo Narainv. State of U. P. . In that case the complainant party were in possession of stick while the accused was in possession of spear, and as a result of the injury caused by the accused with spear death was caused. So, on considering these facts, the Supreme Court held that the accused has exceeded his right of private defence, and so he was liable to be convicted for the offence under Section 304 Part I I. P. C. , by invoking Exception 2 to Section 300 I. P. C. But in the present case, it is not the case of prosecution. That P. Ws. 1. 2, D-1 andd2 were armed with any weapon. Of course, A-1 said that P. Ws. 1 and 2 had weapons with them, but it was not established as discussed above. So, in these circumstances, there is no difficulty for us to come to the conclusion, that A-1 has caused the death of D-1 and D-2 and caused simple injury on P. W. 2, as narrated by the prosecution witnesses. ( 20 ) LEARNED Additional Public Prosecutor Mr. S. Anbazagan, has cited the decisions reported inkikar Singh v. State of Rajasthan and Malkhan Singh and others v. State of U. P. , in order to substantiate his submission that mere sudden quarrel would not entitle the accused to seek for Exception 4 to Section 300 I. P. C. Learned Additional Public Prosecutor, relying upon the decisions reported in Pandurang v. State of Maharashtra and Mannam Balaswamy v. State of Andhra Pradesh would as well contend that even when the intervener was attacked by the accused, while aiming at the witness, the act of the accused in causing injury on the intervener would attract section 302 I. P. C. There is no dispute with regard to this legal proposition. ( 21 ) IN this case, as stated earlier. A-1 had pre-meditation to commit the murder of the entire members of the family of the deceased, and took the first incident that has taken place in the field of A-1, in which P. W. 3 also was assaulted by A-1, as an opportunity to kill D-1 and D-2 and attack P. W. 2. P. Ws. A-1 had pre-meditation to commit the murder of the entire members of the family of the deceased, and took the first incident that has taken place in the field of A-1, in which P. W. 3 also was assaulted by A-1, as an opportunity to kill D-1 and D-2 and attack P. W. 2. P. Ws. 1 and 2 would categorically say, that A-1 exclaimed saying which would show that A1 came only for the purpose of causing danger to the lives of these persons. ( 22 ) COMING to the role of A-2, of course, only after A-2 handed over the M. O. i Balaknife to A-1, he attacked D 1, D-2 and P. W. 2. P. W. 1 and 2 would say that after handing over the weapon of the crime to A-1, A-2 asked A-1 to finish them all. But P. Ws. 3 and 4, the other eye- witnesses do not refer about these words, instigating A-1 to kill them all. There is no clear evidence available, under what circumstances, A-2 brought the weapon and handed over the same to A-1, and the motive aspect was also not established against A-2. When especially P. Ws. 3 and 4 would not depose against A-2, that he uttered the above words to A-1, while handing over the M. O. i- Bala knife to him, it can be concluded that A-2 has neither motive nor intention to commit the offences alleged against him. In these circumstances, we feel, the prosecution has not established its case against A-2, the 2nd appellant herein beyond all reasonable doubt. ( 23 ) IN view of the foregoing reasons, we feel that the convictions and sentences imposed upon the 2nd appellant are not valid in law and the same are liable to be set aside. Accordingly, the convictions and sentences imposed upon the. 2nd appellant, by the court below are set aside and he is acquitted. The bail bond executed by the 2nd appellant shall stand cancelled. However, the convictions and sentences imposed upon the is appellant (A-1) by the Court below are confirmed. The ist appellant shall surrender to serve the remaining period of imprisonment. The appeal is allowed in part. Appeal allowed in part.