The main legal point established in the judgment is the application of the right of private defence in the context of a fatal altercation, considering the circumstances and evidence presented.

ANNA CHANDY, J. :-

This appeal is against the judgment in Sessions Case No. 22 of 1959 of the Sessions Court of Quilon. The two accused were charged under S. 302 read with S. 34, I.P.C. for having caused the death of one Thomas George by stabbing and beating I am in furtherance of their common intention to murder him. The 2nd accused was also charged under S. 324, I.P.C. for having caused hurt to Pw. 1 by beating him with a stick.

The charge under S. 34 being negatived, the 1st accused was convicted under S. 302 I.P.C. and sentenced to the extreme penalty, while the 2nd accused was convicted under S. 324 for causing hurt to Thomas George and sentenced to undergo rigorous imprisonment for one year. In addition, the 2nd accused was convicted under S. 324 and" sentenced to undergo rigorous imprisonment for one month for causing hurt to Pw. 1. The appeal is by the 1st accused and the reference is by the Sessions Judge in respect of the death sentence awarded to the 1st accused.

2. The 2nd accused and the deceased Thomas George are brothers, and the 1st accused is the son of the 2nd accused. By a will executed by their father, some 7 years back, the 2nd accused and the deceased were given 31 cents and 29 cents of paddy land respectively. Subsequently, the will was revoked and 45 cents was given to the deceased and 15 cents to the 2nd accused. This was done at the instance of the deceased and it caused ill-feelings between the brothers.

Towards the end of January 1959, the deceased and the 2nd accused were harvesting their paddy fields (not the subject-matter of the will). The plots marked T" in Ext. P. 12 plan belong to the 2nd accused and the plots marked 'O' to the south of plots 'F' belong to the deceased. The plots marked 'O' belong to one Valuparambil Koshi. The deceased's threshing floor was in Koshy's paddy field and he had also put up a temporary shed there.

On 31-1-1959 at about 10 A.M., the first, accused, who was taking food to his father, passed by the deceased's shed. At that time the deceased was washing his mouth and hands after finishing his meals. As he spat out, some of it fell on accused 1 and that led to exchange of abuse between the uncle and the nephew. The prosecution case is that 'the 1st accused went to his father's field and came back with him to the place where the deceased was, accused 1 picking up a bamboo and the other a piece of wood.

Accused 1 beat the deceased and the 2nd accused followed suit. The deceased stumbled and fell down. As he was getting up, accused 1 stabbed him on his back with a knife. The deceased managed to regain his feet and he ran to the public road to the north of the scene of incident. As the accused were returning to their plot, Pw. 1 an employee of the deceased, who had witnessed the incident, remarked "Look at them coming after killing their own brother."

This enraged accused 2 who picked up a chopper from the paddy field and hit Pw. 1 with the blunt edge of it. Thomas George was removed to the Pathanamthitta dispensary by Pw. 1 and others, but he succumbed to the injury on the way. Pw. 1 proceeded to the police station and gave the First Information Statement. The accused surrendered before the District Magistrate on 9-2-1959 and produced M. O. 4, chopper, and M. O. 9, knife.

The 1st accused stated that he was attacked by the deceased, and his statement was recorded by Pw. 14. The statement is Ext. P. 16. A mahazar on his person was prepared which is Ext. P. 17. A case was registered on the basis of the statement given by the accused, but it was found to be false and struck off the files. The murder case was investigated by the Circle Inspector of Police, Pw. 15, and the charge-sheet was laid before the Sub-Magistrate, Pathanamthitta, on 19-2-1959.

3. The 1st accused pleaded the right of private defence on the basis of Ext. P. 16 statement and the 2nd accused adopted the same plea. The version given by the 1st accused before the court is as follows : He was passing by his un