ANNA CHANDY, J. :-

This appeal is by the two accused persons in S. C. 12 of 1965 on the file of the Sessions Judge, Palghat. The first accused is convicted under Ss. 304 Part I and 323 I. P. C. and sentenced to a concurrent term of rigorous imprisonment for ten years and three months respectively and the second under Sections 323 and 341 I. P. C. and sentenced to a concurrent term of three months and one month.

2. It is alleged that on 14-12-1964 at about 10.30 A. M. the first accused caused the death of Hydru by stabbing him with a knife and caused hurt to PW. 7 Abdu also by stabbing and the second accused wrongfully restrained Moideen Hajee PW. 1 and caused hurt to him by beating him with a chappal.

3. The accused, the deceased Hydru and PWs. 1 and 7 all belong to the same village of Vallapuzha. The first accused is the younger brother of the second accused; PW. 7 is the elder brother of PW. 1 and the deceased Hydru is the grandson of the uncle of P. Ws. 1 and 7 P. W. 12 is the brother-in-law of Hydru and the nephew of P. Ws. 1 and 7 and the son-in-law of P. W. 1.

4. PW. 1 Moideen Hajee had a pair of bulls which were with his brother PW. 7 who was asked to have them sold. On the morning of 14-12-1964 when PW. 1 went to the tea shop of Kunhappu accused 2 was also there. PW. 1 agreed to sell the bulls to accused 2 for Rs. 235 in case PW. 7 did not sell them to anyone else and got Rs. 10 as advance. A little later PW. 7 went to the tea shop of PW. 9 and met PW. 1 and accused 2. PW. 7 informed PW. 1 that the bulls were already sold to one Manu C. W. 1 for Rs. 235. When P. W. 1 took the advance amount of Rs. 10 to be given back to accused 2 he would not receive it. P. W. 1 went along the road followed by accused 2. It is alleged that when PW. 1 reached the road in front of the shop of Kunhappu accused went ahead of PW. 1 and restrained him from proceeding further. PW. 1 pushed accused 2 when he beat PW. 1 with his chappals. Seeing this PW. 7 came running from the shop of PW. 9 to the spot. At this juncture accused 1 who was in his charcoal shop ran up and beat PW. 7 with his chappals. Hydru ran up and beat the first accused on his face when accused 1 is said to have drawn out his knife and stabbed Hydru first on his abdomen and then near his neck below the ear. When he aimed a third stab Usufkutty PW. 12 appeared there and stabbed accused 1 with the folded knife M. O. 7 on his thigh and abdomen. The injured Hydru went to the shop of Kunhi Ahammed and lay down on the verandah and the first accused sat on the roadside. Both were removed in the same car to the Government Hospital, Perinthalmanna at about 1 P. M. PW. 3 the doctor informed the police and the Sub Magistrate of the arrival of the injured. PW. 13 the Head Constable attached to the Perinthalmanna station proceeded to the Hospital and recorded the statement of accused 1 as Ext. P-15 and later that of Hydra. (Ext. P-8). In the meanwhile the Magistrate had also recorded the dying declaration of Hydru. PW. 13 returned to the station, and registered two cases one against the first accused and the other against Hydru. The records were then transferred to Pattambi Police Station as the scene of occurrence was within the limits of that station. Hydru died at 9.15 p.m. on 15-12-1964 and getting information of the death the Sub-Inspector PW. 15 held the inquest and sent express reports to the Circle Inspector and others concerned. PW. 16 took up the investigation and after referring the accused's case as false filed the charge-sheet in the murder case on 6-1-1965.

5. Hydra's death due to haemorrhage and shock as a result of the injuries is well proved and not disputed. He sustained one incised oblique penetrating wound on the left side of the anterior abdominal wall and another incised transverse gaping wound skin-deep on the right side of the neck below the right ear. Ext. P-2 certificate issued by PW. 3 describes the two incised gaping injuries sustained by the first accused