Judgment

KOSHAL, J.:- This is an appeal under Section 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, against the judgment dated 10th October, 1977, of the High Court of Kerala, setting aside the acquittal of the two appellants of offences under Sections 341 and 302 read with Section 34 of the Indian Penal Code recorded by the First Additional Sessions Judge, Trivandrum and convicting them of an offence under Section 302 aforesaid, with a finding that it was committed in furtherance of the common intention of them both.

2. The prosecution case may be stated thus. The two appellants harboured feelings of animosity against the deceased Janardhana Kurup, who was irrigating his field at 8.30 p. m. on 8th December, 1975. The deceased was irrigating his field when the two appellants who are father and son to each other arrived there. The father remonstrated with the deceased accusing the latter of diverting irrigation water from the field of the appellants and caught hold of the deceased from his hands while the son whipped out a knife and gave three blows therewith to the unfortunate victim before the two assailants made good their escape.

The occurrence was witnessed by Kuttan Pillai (P. W. 1) and Vijayan (P. W. 2) who is a son of the deceased. After Janardhana Kurup was taken home, he was removed to the hospital attached to the Medical College at Trivandrum where he told Dr. Sivaprasad (P. W. 10) that "Sree Kumar stabbed while at the door of the house with some weapon". The doctor found Janardhana Kurup to have suffered an incised wound measuring 4 cms x 2 cms on the left side of the chest near the axilla, another small incised wound in line therewith and a stab wound having the dimension 3 cms x 2 cms in the abdomen. The intestines were protruding out of the wound last mentioned which was sufficient in the ordinary course of nature to cause death. Janardhana Kurup expired at 9.45 on 9th December, 1975.

The two appellants absconded after the occurrence and were not traceable for a month.

3. The evidence relied on by the prosecution mainly consisted of the ocular version of the occurrence given by Kuttan Pillai (P. W. 1) and Vijayan (P. W. 2), the corroboration of the testimony of the former by the contents of first information report Ex-P. 1, the dying declaration made by the deceased to Dr. Sivaprasad (P. W. 10), the medical evidence and the circumstance that the accused were not available to the Police for more than a month after the occurrence.

4. The chief reasons recorded by the learned Sessions Judge for acquitting the two appellants may be summarised thus :

(i) In the first information report (Ex-P. 1) a quarrel between the accused and the deceased was mentioned as having taken place prior to the stabbing. That quarrel is a concoction as Kuttun Pillai (P. W. 1) has gone back on it in the witness-box.

(ii) In the first information report (Ex-P. 1) Balakrishna Pillai (P. W. 3) and Ramesan (P. W. 4) are labelled as eye-witnesses - a stand which has been falsified at the evidence stage.

(iii) In Ex-P. 1, Kuttun Pillai (P, W. 1) took the position that appellant No. 2 (the father) had "completely embraced" the deceased but at the trial all that the witnesses said was that the father had held the deceased by his hands.

(iv) Three blows with the knife were ascribed to appellant No. 1 (the son) at the investigation stage. The medical evidence reveals only two injuries.

(v) Kuttun Pillai (P. W. 1) claims to have seen the incident from a distance of 78 metres. If that be so, he could have been able to make out nothing even if sufficient moonlight was available. In any case, he could not have possibly identified the assailants of Janardhana Kurup with any certainty.

(vi) No weapon of offence was mentioned by the deceased to Dr. Sivaprasad (P. W. 10). This could not have been so if the deceased had identified the assailants. The deceased could thus have laboured under a misapprehension or mistaken impression about such