Judgement

BOSE, J. : The appellant Raghavan has been convicted under S. 302, Indian Penal Code, for murdering one Ayyappan and has been sentenced to death. His younger brother Bhaskaran was also charged but was convicted under S. 324, Indian Penal Code, and sentenced to two years. We are not concerned with him here.

2. There are six eye-witnesses to the murder, all of whom have been believed by both the Courts. We decline to go behind this evidence and so will proceed at once to assess the case on the basis of the facts found. They are as follows :

3. Litigation was in progress between the appellant and his grandmother Parvathi Amma. The latter sued the appellant and his brother for partition and separate possession of her share in her son s estate, the son being the father of the appellant and his two brothers (one of whom does not figure in this case).

4. During the course of proceedings the grandmother Parvathi Amma assigned her interest to her daughter Parvathy Lakshmi Amma (P. W. 10). This Parvathi (P. W. 10) is the widow of the deceased Ayyappan.

5. After notice to the parties, Balkrishna Pillai (P. W. 5) and Thomas Kuriyan (P. W. 6), the Commissioners appointed to effect the partition, proceeded to the spot, carried out a survey and made certain measurements. While this was in progress, the two accused came on the scene and started pelting Velayudhan Nair (P. W. 1) with stones and abusing him.

This Velayudhan Nair is the son-in-law of the deceased Ayyappan. Some of the stones hit the witness and there are injuries on his person to bear this out. Both Courts have accepted this evidence. The only thing they have not been able to determine is which of the several stones that were thrown actually hit the witness. But the fact that the appellant and his brother started the assault by pelting Velayudhan (P. W. 1) with stones and abusing him is accepted.

6. Velayudhan (P. W. 1) retaliated by slapping the appellant across the cheek. This resulted in a minor scuffle between the two Krishnan Nair (P. W. 14) and the deceased came upto them, and the former (Krishnan Nair) tried to separate them, while the deceased, who was Velayundhan s (P.W. 1 s) father-in-law, said to his son-in-law -

"Velayudhan! You should not quarrel. I shall find a solution for this."

The appellant thereupon took a penknife from his waist and hit out at the deceased. The deceased tried to ward off the below and was hit on the back of his left forearm. The appellant struck again and this time the blow landed on the chest and caused the injury which eventually killed the man. In the meanwhile the second accused came up and inflicted a stab wound on the deceased s back with another knife.

This could not have caused death though the doctor says it probably aggravated the shock from the fatal wound. Each accused has been held individually liable for the separate injuries caused by him. Section 34 of the Indian Penal Code was not called into play.

7. The first question that we have to determine is whether this in a case of murder or one under S. 304. We are only concerned with the injury on the chest. But before proceeding to that it is necessary to say that Ayyappan did not die at once. He was carried about a mile on a cot to a waiting jeep and then driven to the hospital.

His dying declaration was recorded and then he was handed over to the doctor, P.W. 9, who examined him medically. The doctor though it necessary to operate because he found that a portion of the omentum had protruded through the wound and because there was difficulty in breathing : ("the power of controlling respiration is lost").

The doctor explains that it was necessary to perform a minor operation to push the omentum back into place as that could not be done from the outside. The operation consisted of extending the wound at its outer portion so as to enable the surgeon to deal with the omentum properly. The patient died some twelve hours later.

8. It was strenuously argued before us that the wound was not