JUDGMENT

AHMADI, J. :— The appellant, having been convicted by the learned Sessions Judge. Chandigarh under S. 302, IPC, and his appeal against conviction having been dismissed by the High Court of Punjab and Haryana, has preferred this appeal by special leave. The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh. The facts emerging from the evidence of these two main witnesses coupled with the evidence of the other prosecution witnesses may be stated as follows :

PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23-D, Chandigarh, consisting of the ground floor and the first floor. The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused). PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged. They had come to Chandigath a couple of years back and were sharing the accommodation with PW 4. As Amrit Lals marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitchen for a few days. Accordingly, the possession of the kitchen was delivered to ,Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage. As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his deceased brother Nitya Nand demanded possession thereof from Sikander Lal. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975. However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family mambers of Sikander Lal are stated to have entered the kitchen. It may here be mentioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge, According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3,1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. On this aspect of the matter, the High Court has not expressed any opinion. On a perusal of the relevant evidence we are inclined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct.

2. On January 3,1975, at about 7.15 p.m., P.W. 2 and his deceased brother had a heated argument with the appellant and his brother Amirt Lal in regard to the return of the kitchen. In the course of this heated exchange P.W. 2 is alleged to have showered filthy abuses. Although P.W. 2 denies this fact, P W. 4 has admitted the same. P.W. 2 also threatened to throw out the utensils and lock the kitchen. Since P.W. 2 was uttering filthy abuses in the presence of the appellants sister and Nitya Nand did not restrain him. the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of P.W. 2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand one on the shoulder, the other on the elbow and the third on the chest. as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute.

3. The appellants defence was that on the date of the incident P.W. 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that P.W. 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language P.W. 2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, P.W. 2 took out a k