Judgment :- J.B.Koshy, J. Appellants in Crl.A.No.835 of 2002 were chargesheeted under Sec. 302 and 324 read with section 34 of the Indian Penal Code. A1 and deceased are brothers and A2 is their father. A1 was residing in the tharwad with family. Deceased was residing with his family in the adjacent land. The Sessions Court found A1 (first appellant) guilty under Sec.324 and 302 of the Indian Penal Code. A2 was found guilty under Sec. 323 IPC and not guilty under Sec. 302 and 324 read with sec. 34 IPC. Since A2 was not found guilty under Sec. 302 and 324 read with Sec. 34, State filed Crl.Appeal No.1637 of 2003. The following sentences were imposed on them: “The first accused is sentenced to undergo imprisonment for life under Sec. 302 IPC. He is also sentenced to undergo R.I. for 2 (Two) years under Sec. 324 IPC. He is directed to deposit in this court within six (6) months from this day for payment to the legal heirs of the deceased, the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) failing which, he shall undergo further R.I. for a period of five years. The substantive sentence of imprisonment awarded to the first accused will run concurrently. It is directed that on the appropriate authority passing orders under Sec. 433 Criminal Procedure Code the first accused will get the period of detention already undergone set off against the substantive sentence awarded under Sec. 302 IPC.” The second accused is sentenced to undergo S.I. for one (1) year under sec. 323 IPC. The period of detention already undergone by him shall be set off against the sentence awarded.” The allegation of the prosecution was that on 22-2-1994 at about 5-00 p.m., the deceased after irrigating his parambu alongwith PW2, PW3 and PW8 was pushing the motor along the river bund from north to south. When deceased, PW2, PW3 and PW8 reached near the hose pipe of the accused that lay across the bund, the deceased wanted PW3 to ask the first accused who was lying there, to lift the pipe so that they could proceed further towards south with the motor. PW3 asked the first accused with gestures and PW4 the worker of the accused came forward and lifted the hose pipe. But, the gap was not sufficient enough to push through the motor of the deceased. PW3 asked the first accused with gestures and PW4 the worker of the accused came forward and lifted the hose pipe. But, the gap was not sufficient enough to push through the motor of the deceased. The deceased then commented that one person (referring to 1st accused) is lying there and he could also help to lift the pipe. Then the first accused asked PW4 to leave the hose pipe there so that whoever felt necessary could lift the same. Following that there was wordy altercation and scuffle between the deceased and first accused. PW2 to PW4 and PW8 intervened and dispersed them. PWs 2 and 4 lifted the hose pipe. PWs 3 and 8 and the deceased pushed across the motor beneath the pipe. They proceeded towards south with the motor, the deceased pulling it from the front side and PWs 2,3 and 8 pushing from behind. The first accused followed them picking up the quarrel with the deceased. At that time, the second accused came there with stick and asking what he had done to the first accused, beat the deceased. The first accused proceeded to his paramba and returned to the river bund hiding something inside his shirt. When the second accused beat the deceased with stick, the latter pushed the former, took up a stone and tried to pelt it at the second accused. PW4 interfered, got the stone from the deceased and threw it away. The first accused took out a chopper from inside his shirt and assaulted the deceased on the neck, head etc. The deceased fell on the river bund. Still, the first accused assaulted the deceased with chopper. PW2 interfered to save the deceased. The first accused wielded the chopper at PW2 and the latter suffered injury on the right side of the forehead. When the blade of the chopper went off from its handle the first accused collected the wooden plank used by the deceased and others to push forward the motor and assaulted the deceased. PW2 again interfered. The first accused wielded the wooden plank at him. It hit the chest of PW2. The first accused threatened to do away with PW2 also. Scared, PWs 2,3 and 8 fled from the scene. PW2 again interfered. The first accused wielded the wooden plank at him. It hit the chest of PW2. The first accused threatened to do away with PW2 also. Scared, PWs 2,3 and 8 fled from the scene. According to PW2, he went to the house of CW25 who owned the motor with which the deceased had irrigated his paramba that day and alongwith CW25 he went to the National Hospital, Wandoor and later he underwent treatment in the Government Hospital, Nilambur. PW2 deposed that there was property dispute between the accused and the deceased. PWs 2,3 and 8 identified MO1 as the stick used by the second accused and MO2, the broken pieces of the plank and MO3, the chopper used by the first accused to assault the deceased and PW2. They also identified MO3(a), the handle of MO3. According to PW2, MO4 is the bath towel he had at the time of the incident. MOs 5 and 6 are the bath towel of the first and second accused, respectively. PWs 2 and 3 identified MO7 as the shirt which the first accused was wearing at the time of the incident. PW3 identified Mos 8 and 9 as the kaily and dhothi of the second and first accused respectively. Evidence of PW2 is corroborated by the evidence of eye witnesses PW3 and PW8 in all material particulars. 2. PW1 gave the first information statement. PW1 is not an eye witness to the incident. But, he stated that he gathered information from the place of incident and gave first information statement, Ext.P1, to PW11. According to PW11, the statement was recorded at the station at 9-15 p.m. on the same day (22-2-1994) and he registered Ext.P1 (a) FIR and he alongwith PW16 reached the place of occurrence at about 10-30 p.m. on that day and arranged scene guard. PW1 admitted that Ext.P1 is his signed statement. But, he deposed that he has given it on the next day morning. In the next day (23-2-1994) itself, the first information statement reached the Magistrate’s court. PW7 is the wife of the second accused and mother of the first accused and she did not support the prosecution or the defence. PW9 is the wife of the deceased. She deposed that there was property disputes between the deceased and the accused. In the next day (23-2-1994) itself, the first information statement reached the Magistrate’s court. PW7 is the wife of the second accused and mother of the first accused and she did not support the prosecution or the defence. PW9 is the wife of the deceased. She deposed that there was property disputes between the deceased and the accused. The accused and PW7 were staying in the tharavad house while herself and the deceased alongwith the children were staying in another house. According to PW7, accused was in inimical terms with the deceased during the relevant time because of the property dispute. She also identified MOs 10 and 11 as dhothi and shuddy of the deceased. Ext.P12 is the inquest report wherein it is stated that the body was found in the river bund about 150 metres north of the old ferry in Amarambalam south. PWs 2,3 and 8, occurrence witnesses, stated the case in accordance with the prosecution story. Even though elaborate cross-examination was done, nothing was stated to disbelieve the above witnesses in material particulars. PW2 was an injured witness. PW4, an employee of the accused, was examined as an occurrence witness. According to him, he has not seen the incident. He pretended that he did not see both the deceased and accused. Even though his statement to the police as otherwise as can be seen from the contradictions marked, we are of the opinion that evidence of PWs 2,3 and 8 are cogent and believable. The fact that PW2 immediately went to the private doctor is not a ground for disbelieving him. Thereafter PW2 went to the Government hospital. PW13 is the doctor of the Government Hospital who issued Ext.P9 certificate. He also deposed that injuries on PW2 can be caused by Mos 2 and 3. 3. PW14 who conducted the autopsy noticed the following injuries. “1. Lacerated bone deep wound 6 x 13 c.m. on the left side of forehead over the entire length of eyebrow. The surrounding areas of the wound showed contusion and discolouration of the skin due to infiltration of blood. The left eye ball was rapared irregularly and gone deep into the socket with Haemorrhage around. 2. Lacerated bone deep 2.8 x 1.8 c.m. on the left side of face 3 c.m. below the outer end of eye. The malar bones underneath were fractured (comminuted). 3. The left eye ball was rapared irregularly and gone deep into the socket with Haemorrhage around. 2. Lacerated bone deep 2.8 x 1.8 c.m. on the left side of face 3 c.m. below the outer end of eye. The malar bones underneath were fractured (comminuted). 3. Laceration muscle deep with contusion around 4.2 x 1 c.m. over the nose. The nasal bone underneath showed multiple fracture; with segmentation. 4. Laceration muscle deep 3 x 1.8 c.m. on the right side of face 4 c.m. outer to the nose showing extensive contusion around. The right malar bone was fractured. The right eyeball was ruptured and showed Haemorrhage. 5. Irregular laceration 2 x 1.3 c.m. on the inner aspect of left side of lower lip with contused abrasion of .4 x .3 c.m. on the outer aspect of lower lip left side. The lower jaw was fractured alongwith facture dislocation of the front four teeth of both jaws. The mouth cavity contained blood clots and a loose teeth. 6. Laceration cartilage deep 4 x .5 c.m. on the middle of left ear pinna, 7. Contused abrasion multiple over on area of 14 x 11.5 c.m. on the left side of face and ear. The entire left side of face was swollen with brownish discoloration. The facial boens and jaw bones underneath were fractured. 8. Laceration bone deep 8 x 2.3 c.m. on the left side of head horizontally placed above the left ear. The front end was 3.5.c.m. above the top of ear. The scalp tissues underneath showed extensive bruising. The base of skull (both anterior and middle cranial fossae) and left side of posterior cranial fossae showed fissured fracture. The brain showed subdural and subarachnoid Haemorrahage. 9. Lacerated bone deep wound 4 x .8 c.m. on the left side of head 2.5. c.m. above the back end of injury No.8. The scalp tissue underneath was bruised. The left parietal bone showed comminuted fracture 3.2 x 2.3 c.m. with ruptured durs (covering of brain). The brain matter showed laceration and protruding through it. 10. Lacerated bone deep wound 2.9 x 1 c.m. on left side of head 1.5. c.m. behind injury No.9 Scalp tissue underneath showed bruising. No bony injury. 11. Lacerated bone deep wound 3 x .9 c.m. on the right side of head 7.2 c.m. above the top of ear. No bony injury but scalp was bruised. 12. 10. Lacerated bone deep wound 2.9 x 1 c.m. on left side of head 1.5. c.m. behind injury No.9 Scalp tissue underneath showed bruising. No bony injury. 11. Lacerated bone deep wound 3 x .9 c.m. on the right side of head 7.2 c.m. above the top of ear. No bony injury but scalp was bruised. 12. Incised muscle deep oblique wound 3.3 x .6 c.m. on the right side of back of neck with a tailing of 2 c.m. The lower inner end (tailing ) was 11.8 c.m. above the 7th cervical spine and 1.3 c.m. outer to middle. No bony injuries. 13. Incised bone deep horizontal gaping wound 11 x 3.8 c.m. on the back of right side of neck. The outer end was 2.4 c.m. below the right ear lobule and the inner end was 9 c.m. above the 7th cervical spine. The muscles and blood vessels underneath were cleanly cut. 14. Incised bone deep horizontal wound 6.8 x .9 c.m. on the back of neck. The left end was 9.5. c.m. below the left ear lobule and 2.4 c.m. to the left midline. The muscles and blood vessels underneath were cleanly cut. 15. Incised muscle deep oblique wound 4 x 1.8 c.m. on the left side of back of neck. The inner end showed a tailing of 6.5. c.m. The outer lower end was 8.2. c.m. to the left of 7th cervical spine. 16. Incised oblique bone deep gapping wound 10 x 4.5. c.m. on the neck of right shoulder with a tailing 8 x 5 c.m. running towards the middle and stopping 10.5. c.m. to the right of midline. The muscles, blood vessels and the bone (shoulder blade) was cleanly cut. 17. Incised oblique bone deep gapping wound 13 x 4.2. c.m. across the front of right shoulder exposing the shoulder joint. The arm bone and the capsule of the joint was cleanly cut. 18. Abrasion 6 x 4.8 c.m. on the middle of back of right shoulder blade. 19. Linear abrasion 10.2 x 3 c.m. vertically running downwards from the middle of injury No.18. 20. Incised bone deep gaping wound with avulsion of skin 14 x 7.5. c.m. on the back of lower 3rd of right forearm exposing the bone but not cutting the bone. 21. Contused abrasion 2.1. x 1.3. c.m. on the back of right hand between the thumb and index finger. 20. Incised bone deep gaping wound with avulsion of skin 14 x 7.5. c.m. on the back of lower 3rd of right forearm exposing the bone but not cutting the bone. 21. Contused abrasion 2.1. x 1.3. c.m. on the back of right hand between the thumb and index finger. 22. Muscle deep incised wound 3.6. x 1.4 c.m. on the front of right side of chest 7.8.c.m. above the nipple at 12 ‘o clock position. 23. Contusion 6.2. x 4 c.m. on the front of right side of chest around the nipple. 24. Incised bone deep wound 4.3 x 2.2 c.m. on the outer aspect of left forearm and wrist. The bones underneath were cleanly cut. 25. Laceration 2.2 x 1 c.m. on the back of right wrist. No bony injuries.” PW 14 gave opinion that the deceased died of the multiple injuries suffered by him. The opinion of PW14 regarding the cause of death is not challenged by the accused. The prosecution has thus established beyond reasonable doubt that Chandrasekharan, the deceased, suffered injuries on 22.2.1994 and succumbed to the said injuries on the same day. 4. It was argued by the counsel for the defence that the story that PW1 gave Ext.P1 cannot be believed. There were workers of the deceased alongwith him, as per the prosecution version. But they did not report the matter. That is highly artificial. PW1 is a neighbour who came to the place of incident immediately after the incident. He reported the matter to police. PW11 recorded the statement. Thee is no ambiguity in the matter. Merely because the eye witnesses who were present at the time of incident, namely, PW2, PW3 and PW8 did not inform the police, Ext.P1 need not be disbelieved. The evidence would show that first accused chased the occurrence witnesses, PW2, PW3, etc.. PW2 was injured as can be seen from Ext.P9 certificate. His presence cannot be disputed. PW2, PW3, PW4, PW8, etc. were mere poor agricultural workers and they were afraid. Merely because they did not report the incident to police, prosecution case cannot be disbelieved. Secondly, it was argued that PW2, who was a material witness, was questioned after two days. There is not much delay in questioning PW2. The incident occurred on 22nd night. PW2, PW3, PW4, PW8, etc. were mere poor agricultural workers and they were afraid. Merely because they did not report the incident to police, prosecution case cannot be disbelieved. Secondly, it was argued that PW2, who was a material witness, was questioned after two days. There is not much delay in questioning PW2. The incident occurred on 22nd night. He was injured and he went to the hospital and thereafter he was examined by the Government doctor on 24th and on 24th itself he was questioned by the police. PW3 and other eye witnesses were questioned on the next day of the incident itself and, therefore, we are of the opinion that there is no defect in the investigation because PW2 was questioned only on 24th. Even otherwise, when there are clear and cogent evidence of the eye witnesses, about three in number, minor defects in the investigation may not be looked into seriously as held by the Apex Court in Ramanand Yadav v. Prabhu Nath Jha and others (AIR 2004 SC 1053) and in Rambir Singh v. State of Punjab (AIR 1973 SC 1409). 5. Learned counsel for the appellant submitted that there is a clear case of private defence. No such plea was taken up in the statement under Sec. 313 of the code of Criminal Procedure. In fact, in the 313 statement, there is a complete denial. He proclaimed complete ignorance of the incident. According to him, on the date of incident, at 11-30 p.m. police came to their house and taken them. He came to know about the case only when he reached the station. It is true that even if a specific case of self defence is not taken up, from the evidence of the prosecution witnesses, the court can consider whether the act was done in exercise of private defence. Sec. 96 IPC provides that nothing is an offence which is done in exercise of private defence. Whether, in a particular set of circumstances, a person is acted in exercise of private defence is a question of fact to be determined on the facts and circumstances of the case. It is also true that when private defence is pleaded only preponderance of probabilities need be proved by the accused. Whether, in a particular set of circumstances, a person is acted in exercise of private defence is a question of fact to be determined on the facts and circumstances of the case. It is also true that when private defence is pleaded only preponderance of probabilities need be proved by the accused. The Supreme Court in Salim Zia v. State of UP ((1979) 2 SCC 648) held that it is true that the burden is on the accused to establish the plea of self defence. But, it is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove the case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. But, at the same time plea of private defence cannot be based on surmises and speculations. (See Lakshmi Singh v. State of Bihar ((1976) 4 SCC 394)). It must be a reasonable and probable version to be inferred from the evidence adduced. Apart from the fact that there is no plea of self defence and plea of self defence is not developed while cross-examining the prosecution witnesses also, 25 injuries were caused on the deceased. Evidence shows that with the first cut itself the deceased fell down. First accused has inflicted repeated cut injuries to the deceased. Even after the deceased fell down, he continued to inflict injuries. He murdered his brother in a ghastly manner inflicting 25 injuries and, therefore, in any event, it cannot be stated that it was done in self defence especially when there is no case that the deceased or even his employees were armed. 6. Finally, it was argued that it was due to the sudden provocation. There was altercation between the father and the deceased and seeing this incident took place. Evidence shows that A1 went to the paramba and came back with a chopper hiding inside his shirt and then committed the offence. 6. Finally, it was argued that it was due to the sudden provocation. There was altercation between the father and the deceased and seeing this incident took place. Evidence shows that A1 went to the paramba and came back with a chopper hiding inside his shirt and then committed the offence. Therefore, it cannot be stated that 25 injuries were inflicted on the deceased in the heat of passion or in a grave and sudden provocation, apart from the fact that accused have no such case in the 313 statement and no suggestions were put on that behalf to the prosecution witnesses. The observations of the Apex Court in K.M.Nanavati v. State of Maharashtra (AIR 1962 SC 605) is of no help to the accused on the facts of this case. In fact, observations of the Apex Court are against the accused. The Supreme Court observed as follows at paragraphs 85: “The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” In this case, there is no evidence at all to show that the attack by A1 is due to the influence of passion arising from provocation by seeing the altercation between the deceased and his father. It is highly impossible on the basis of evidence on record. The accused went to the parambu and came back in a calculated manner with the weapon concealed in his dress. Therefore, on the basis of evidence in this case, the accused cannot claim the benefit of exception 1 to sec. 300 of the Indian Penal Code. Considering the evidence of three eye witness supported by the medical evidence, we are of the opinion that the deceased was murdered by A1 in a cruel manner by inflicting about 25 injuries. In the above circumstances, we are of the view that no interference is required in the conviction and sentence imposed on A1. 7. With regard to A2, he was aged 76 at the time of incident and now he is over 84. There is no evidence to show that he shared the common intention with A1 to kill the deceased, his own son. On getting information that there was quarrel between his sons, he came to the spot and beat the deceased with a stick. There is no evidence to show that he shared the common intention with A1 to kill the deceased, his own son. On getting information that there was quarrel between his sons, he came to the spot and beat the deceased with a stick. Deceased tried to react with the help of a stone. His offence will come only under Sec. 323 IPC as correctly held by the Sessions Court. A2 has already undergone one month’s imprisonment. Considering his age, nature of offence, etc. we are of the opinion that the imprisonment he has already undergone is sufficient sentence, as far as A2 is concerned, for his conviction under Sec. 323 IPC. In the result, conviction and sentence on A1 is confirmed. Conviction on A2 is also confirmed and sentence on A2 is reduced. As far as A2 is concerned, the imprisonment already undergone by him is treated as sufficient. His bail bond be released. Crl. Appeal No.835 of 2002 is partly allowed with respect to sentence of A2 and dismissed in other respects. The appeal