Judgment

KHANNA, J. :- This judgment would dispose of two criminal appeals Nos. 143 and 144 of 1973 which have been filed by special leave by Carlose John (29) (hereinafter referred to as John) and his father Vasthian Carlose (58) (hereinafter referred to as Carlose) against the judgment of the kerala High Court affirming on appeal and reference the conviction of the two appellants under Section 302, Indian Penal Code and the sentence of death.

2. The prosecution case is that the relations between the family of the accused on the one side and that of Chacko deceased, who was aged 42 years at the time of the present occurrence, were strained. The two accused and the deceased were fishermen of village Killikollur in district Quilon. In 1969 Lily (P. W. 6), wife of Carlose accused, filed a criminal case under Sections 425, 323 and 427 read with 34, Indian Penal Code in the court of District Magistrate, Quilon against Chacko deceased, his wife Regina (P. W. 7) and elder brother Elias (P. W. 11). The accused in that case were acquitted. Two days prior to the present occurrence, an incident took place between John accused and the children of Chacko. During the course of that incident, abuses were hurled and stones were pelted.

3. On the morning of October 8, 1970, it is stated, the two accused went as usual to Paravoor lake for fishing. After fishing the accused returned to a place called Eravipuram. Later on that day Lily (P. W. 6), wife of Carlose accused and mother of John accused, took meals for the two accused and proceeded towards Eravipuram. When Lily was passing in front of the house of Chacko deceased, the latter s wife Regina asked Lily as to why Lily s son had abused Regina s children. Lily gave an abusive reply Regina and her son Nelson thereupon abused Lily. Lily then threw the food she was carrying and went to the two accused.

4. At about 1 p.m. on that day, i.e. October 8, 1970, Chacko deceased returned from Kottarakkara to his village Killikollur. The two accused were present on the road at that time. John accused had with him a crab pin. A crab pin is like a spear. Apart from having a pointed end, it has also a fish hook. The blade of the crab-pin was 5.9 cm long. As soon as the two accused saw Chacko, John accused asked him, Have you grown so big that your wife can abuse my mother? . The accused also got up to attack Chacko. Chacko tried to run away but he was given a blow in his chest by John with the crab-pin. Chacko caught hold of the crabpin whereupon Carlose accused took out a pen knife from his pocket and stabbed Chacko on his head. Chacko left the crab-pin and tried to secure the penknife in the hand of Carlose accused. During the scuffle, the pen knife caused injury to Carlose accused. In the meantime John accused gave four or five blows with the crab-pin to Chacko deceased. Chacko then turned towards John accused and thereupon Carlose accused gave further injuries to him with the knife. Crab-pin was then thrust by John into the chest of Chacko. The crabpin got stuck there and John could not draw it out. Chacko then drew out the crab-pin from the wound. As soon as Chacko did it, he fell down and died soon thereafter. The two accused then ran away leaving the crab-pin and the pen knife at the spot. The occurrence, it is stated, was witnessed by Joseph Alias (P. W. 2), Pathrose Luis (P. W. 13) and Kunjan Krishnan (P. W. 15). At about 1-30 p.m. Elias (P. W. 1), elder brother of Chacko deceased, came to know of the present occurrence from Nelson, son of Chacko deceased, Elias went running to the place of occurrence and found the dead body of Chacko lying there. Elias thereafter went to police station Kundara at a distance of 8 km from the place of occurrence and lodged there report P-1 at 2 p.m.

5. Sub-Inspector Vijaya Kumar (P. W. 17) after recording the first information report went to the place of occurrence. Intimation about the occurrence was also sent by the Sub-Inspector to Circle Inspector Gopinath Panick