Judgment

KAILASAM, J.:- This appeal is preferred by special leave against the judgment of a Division Bench of the Madras High Court in Criminal Appeal 373 of 1973 finding the appellant guilty on two counts under S. 302, Indian Penal Code and sentencing him to death on each count. The case for the prosecution is as follows :-

Petha Gounden who will be referred to as the first deceased, is the father of the appellant Guruswamy and the second deceased Doraiyan alias Kailanna. There were two other accused before the sessions court, the second accused being the brother-in-law of the appellant having married his sister. The third accused is a cousin and the friend of the second accused. Second and third accused were acquitted by the High Court of the offence under S. 302, Indian Penal Code but were convicted of minor offences. There is no appeal against their conviction by the second and third accused.

2. Deceased Petha Gounden owned about 10 acres of land and about 13 years before the occurrence, he divided those lands between the appellant and the second deceased, Doraiyan alias Kaiannan, giving them each 5 acres. The deceased expected each of the sons to pay him Rupees 250/- per year for his maintenance. Petha Goundan received his maintenance for sometime but later started living with one or the other of the sons, collecting the maintenance from the other son. Later, Petha Goundan wanted his share of the property from the two sons for himself and there was some misunderstanding over this request. The appellant was not willing to hand over his share of the property. There was misunderstanding between the appellant on the one side and Petha Goundan and the second deceased Doraiyan alias Kaliannan.

3. On the day of occurrence i.e. on 26-8-1972 at about 4 p.m. the appellant came and picked up a quarrel objecting to the cattle trough belonging to Doraiyan alias Kaliannan being kept under a itchi tree to the west of the house as that site belonged to the appellant. Doraiyan removed the trough. At about sunset time. P. W. 2 the cousin of the deceased Petha Goundan, came to Petha Goundan and was talking with him. P. W. 1 the wife of the second deceased Doraiyan served food for all the members of the household. After serving the meals she was sitting in front of her house, while the first deceased Petha Goundan and P. W. 3 were picking cotton from cotton pods, near a tube-light that was burning. P. W. 1 and deceased Doraiyan were inside their hut along with their son Murugaiyan. While P. W. 1 and the deceased were talking and picking cotton from cotton pods, at about 9 p.m. the appellant and the other accused came from the west into the courtyard of the house. The appellant was armed with a stout stick and the third accused with a whip stick. The appellant stood on the west and called out to Doraiyan alias Kaliannan the second deceased saying "come on, I will finish the father and the son." It is stated that the appellant caught hold of P. W. 1 by her tuft and shook her. Doraiyan, the second deceased shouted to the appellant as to why he was catching hold of the woman and dragging her. P. W. 3 prevented the second deceased from coming out in order to avert the fight. The first deceased Petha Goundan came out and proceeded towards the appellant who was catching hold of P. W. 1. At that time, it is stated, that the appellant who was armed with Dhonnai (Stout Stick) beat the deceased Petha Goundan twice or thrice on the head whereupon Petha Goundan fell down and even after that the first appellant beat Petha Goundan on the left side of the chest with the stick. When the second deceased Doraiyan came running he was caught hold of by the second accused and the third accused. The appellant beat Doraiyan with the stick on the face and Doraiyan fell down. After inflicting injuries, the appellant and the two other accused went away. The incident was witnessed by P. W. 1 the wife of the second deceased and P. W. 3 the cousin of Petha Goundan and P.W. 4