Judgment

MAHAJAN, C.J.I. : The incident with which we are concerned in this appeal by special leave, took place at 4-30 P. M. on the 31st October 1952 in Meladi Desam (Malabar) in the house of P. W. 1, Mr. P. Achuthan, a vakil of 27 years standing. The murdered man was his clerk, Kolangarakandi Kannan, who belonged to the Thiyya community, and who was a prominent person in the social circles of that community. He was taking keen interest on behalf of the Hindus and was disliked by the Moplas between whom and the Thiyyas there was considerable communal tension during that period.

2. The prosecution case is that on account of his active interest on behalf of the Hindu community the Moplas wanted to put an end to his life. A riotous mob had collected that day shortly before the incident at the railway station and within half an hour of the dispersal of the mob, it is said that the present appellants along with accused 3 to 7 proceeded to the house of the vakil and rushing into the room where Kannan was taking refuge, they inflicted serious stab injuries on Kannan which brought about his death. Accused 4 and 5 held Kannan by the hands while accused 3, 6, 7 held his legs at the time of stabbing. After having inflicted the injuries on Kannan they ran away. P. W. 1 who was in the verandah of his house did not enter the room when his clerk was being stabbed. He was paralysed and frightened and upset and could do nothing to prevent the attack on his clerk.

After Moplas had gone away he went inside the room and saw Kannan lying in a pool of blood. His condition was dangerous and life was ebbing fast. He then called P. W. 2 and told him that accused 1 and 2 and five other Moplas had stabbed his clerk and that he should go inside and see for himself what had happened. P. W. 2 went inside the room and saw Kannan lying in a pool of blood. At the request of P. W. 1 he proceeded to inform the police about the incident. As he came out of the house he met a police lorry with a sub-inspector and some constables proceeding towards him on the road. He stopped the lorry and informed the sub-inspector about the incident. This report, Ex. P-1 was taken down by P. W. 7, a police constable. At this happened within 15 minutes of the occurrence. This report was then sent to the police station and on the basis of it the first information report was recorded.

3. After investigation, the two appellants along with accused 3 to 7, who have been acquitted by the High Court, were committed to the court of session where, as a result of the trial, they were found guilty of the offence of murder under section 302, I.P.C. and were sentenced to death. Accused 3 to 7 were found guilty under section 302 read with section 149, I. P. C. and were sentenced to transportation for life. The conviction of the two appellants came up for confirmation before the High Court, along with the appeals preferred by all the convicted persons. The High Court confirmed the death sentences passed on the two appellants but gave the benefit of doubt to accused 3 to 7. Their convictions and sentences were set aside and they were acquitted.

4. The prosecution case is supported by the testimony of P. W. 1, the vakil, P. W. 2, whom the vakil called immediately after the incident to the house and who was told to make a report to the police, P. Ws. 3 and 4 who were nearby at the time the occurrence took place and P. Ws. 5 and 6 who actually saw Kannan being stabbed. The learned Sessions Judge believed the evidence given by all these eye-witnesses. Before the High Court, an attempt was made to tar the eye-witnesses as liars and have their testimony rejected on the ground that they were all giving false evidence owing to communal feelings.

The defence theory was that deceased Kannan was stabbed as a result of the rioting at the railway station by some unknown persons, that he ran for succour after the stabbing into the house of his matter P. W. 1 but fell down and died in the northern room of the house