Gopinathan, J.

The appellant in the criminal appeal, who is the respondent in the revision case, was convicted by the Additional Sessions Judge (Ad-hoc)-I, Kollam for offences under Sections 302 and 307 I.P.C. and was sentenced to rigorous imprisonment for a period of ten years for offence under Section 302 I.P.C. and rigorous imprisonment for a period of five years under Section 307 I.P.C. Assailing the above conviction and sentence, this appeal was preferred.

2. When the appeal came up for admission, noticing the illegality in awarding sentence for offence under Section 302, a suo motu revision was registered against the appellant and notice was given.

3. The Circle Inspector of Police, Kundara police station in Crime No.108 of 1999 of Anchalamood police station filed the charge sheet against the appellant before the Judicial Magistrate of the First Class, Kollam alleging the above said offences. The learned Magistrate took cognizance and proceeded as C.P.23 of 2004. Having found that the offences alleged were triable by a Court of Session, after complying with the requisite procedures, by order dated 18/7/2004, committed the case to the Court of Session, Kollam. From there, it was made over to the Additional Sessions Judge, Ad-hoc-I.

4. The prosecution case in brief is that P.W.1 Madhu and his wife, late Beena jointly acquired a property with a house bearing DoorNo.7/68, which was named 'Madhuvilasam'. P.W.1 was employed as a Supervisor in a cashew factory at Kuzhithara in Tamil Nadu and was residing there. The mother of P.W.1, who was examined as D.W.1 was residing in the Madhuvilasam house. The appellant, who is the brother of P.W.1, was residing away with his family. Later, the relationship between the appellant and his wife got strained. Therefore, he shifted his residence to the Madhuvilasam house and had been residing along with the mother. In the meanwhile, P.W.1 and late Beena proposed to sell the property. To facilitate the sale, the appellant and mother were requested to shift their residence and to give vacant possession. The appellant was not amenable. P.W.1 and late Beena went to Anchalamoodu police station and made an oral complaint. It did not yield any result. On 26.3.1999, Ext.P2 complaint was lodged against the appellant before the Sub Inspector of Police, who was examined as P.W.17. P.W.16, a police constable, was deputed by P.W.17 to serve a copy of Ext.P2 and to direct the appellant to appear before Pw17. P.W.16 went to Madhuvilasam house and the appellant was informed. At about 11 a.m., P.W.1 and late Beena went to Madhuvilasam house. Seeing P.W.1 and Beena, the appellant got angry. He took a knife and stabbed P.W.1, uttering that he and his wife filed a complaint against him and they would not be spared. Seeing P.W.1 being stabbed, Beena rushed to rescue him. The appellant, immediately, with the same knife stabbed at the front side of the buttock of Beena. Beena got scared and ran towards the southern side of the courtyard. The appellant, then followed and kicked her. As a result she fell down. Hearing the cry, P.W.3, a neighbour, then a B.Ed. student rushed to the spot. He bandaged the wounds of P.W.1 and Beena and they were rushed to the Government Hospital, Kollam. After first aid, they were referred to the Medical College Hospital, Thiruvananthapuram. While undergoing treatment at Medical College Hospital, at 4.30 p.m., on the same day, Beena succumbed to the injuries.

5. On getting information, P.W.17 rushed to the Medical College Hospital, Thiruvananthapuram and at 5.30 p.m. recorded the First Information Statement given by P.W.1, who was admitted in Ward No.18. Returning to the police station, a case as Crime No.108 of 1999 was registered by P.W.17 for offence under Sec.302 and 307 IPC. Ext.P11 is the First Information Report.

6. P.W.18, the then Circle Inspector of Police, Kundara took over the investigation. He rushed to the Medical College Hospital, Thiruvananthapuram and prepare