JUDGMENT K.T. Koshi, C.J. 1. The Referred Trial and the connected Criminal Appeal arise from the judgment of the learned Sessions Judge of Kottayam in Sessions Case No. 55 of 1958 on his file convicting the accused therein, one Varkey Chacko, for an offence of murder and sentencing him to the extreme penalty of the law. Criminal Appeal No. 253 of 1958 has been preferred by the accused against the said conviction and sentence and in Referred Trial No. 18 of 1958 the learned Sessions Judge has submitted the proceedings to this Court for confirmation of the death sentence. 2. The prosecution case against the accused was that in the evening of 14 - 3-1958 he stabbed one Mathai Varkey, a neighbour of his with a malappurom knife and that as a result of the injuries so inflicted the victim died the next day at 10-50 P. M. while he was an inpatient in the District Hospital, Kottayam. The accused and the decased belonged to Adivaram Kara, Poonjar South Pakuthy, Meenachil Taluk. P. W. 3 is their common landlord. One Varampanattu Cherikal belonging to P. W. 3 consisted of three distinct blocks. One of those blocks was let out to the accused and his father on a vechupakuthy lease and they were living there. Another block was in the direct possession of P. W. 3 and the third was let out to the deceased and his brothers. They lived in this third block. The deceased and his brothers were directed to keep watch and ward over the block in the direct possession of P.W. 3 and the deceased used to complain to P.W. 3 that the accused frequently committed theft of cocoanuts, arecanuts and latex from that block. P. W: 3 warned the accused against his action and though for some time there was no stealing the fact that the deceased had complained to P. W. 3 about the accused's conduct made the latter's relations with the deceased and the members of this family very strained. He used to abuse them and even threatened violence. The accused used to pass along the courtyard of the house occupied by the deceased and his brothers and whenever he passed along that way he showered abuse on the deceased and the members of his family. He used to abuse them and even threatened violence. The accused used to pass along the courtyard of the house occupied by the deceased and his brothers and whenever he passed along that way he showered abuse on the deceased and the members of his family. The deceased again complained to P. W. 3 about the accused's conduct and as directed by P. W. 3 the deceased and his brother, P.W. 1, closed that pathway and opened out another further away from their house. This incident also added to the ill feeling the accused was harbouring towards the deceased and the members of his family. He even used to throw stones at the house and repeated advice and warnings from P. W. 3 proved to be of no avail. 3. It was while the relations between the parties was so strained that the occurrence complained of in this case took place. The complaint about the accused's conduct, the closing of the pathway etc. took place within some two months preceding the date of the occurrence. As stated earlier the occurrence was in the evening of 14-3-1958. At about 4 O clock in the evening of that day the deceased took out his goat to the purayidom adjoining his house for grazing and tethered it there. That was close to the block of the Cherickal where the accused lived. According to the prosecution seeing the deceased in the adjoining purayidom the accused first threw a stone at him and afterwards attacked him with a knife stabbing him on several parts of his body including the chest and the abdominal region. The deceased then cried out that "Chacko was killing him" and the prosecution would have it that his cries attracted P. Ws. 1 and 2 to the place of the occurrence. At the time when he heard the cries P. W. 1, the deceased's younger brother, was plucking a jack fruit from a tree in the property occupied by the deceased and others and according to P. W. 2, a blacksmith who is a neighbour, he had gone to a nearby canal to answer the calls of nature when he heard the cries. P. W. 2 was the first to reach the spot and he saw the accused inflicting not less than three or four stabs on the deceased while the latter was lying down on the ground on his back. P. W. 2 was the first to reach the spot and he saw the accused inflicting not less than three or four stabs on the deceased while the latter was lying down on the ground on his back. By the time P. W. 1 reached the spot the deceased had got up and he was walking towards their house profusely bleeding with several stab wounds on his person. Soon the deceased's wife and mother also went there and they all took him to their house. P. W. 1 tied a cloth over the deceased's stomach as the intestine had come out. From their house P. W. 1 and the neighbours who had gathered there carried the deceased on a cot to a place called Peringalam. A jeep was then requisitioned and in it the deceased was taken to the Kottayam District Hospital. On the way they stopped at the house of P. W. 3 and he also got into the jeep and went to Kottayam along with the deceased and the party accompaning him. P. W. 1 also gave evidence that when he saw the deceased coming down the hill towards their house he saw the accused running away in the direction of his house with a bloodstained knife in his hand and that the deceased told him that the accused had stabbed him. P. W. 3 also gave like evidence that in answer to a query by him the deceased had told him that he was stabbed by the accused. 4. The jeep carrying the deceased to the Kottayam District Hospital reached there after 8 P. M. (14-3-1958) and P. W. 9 an Assistant Surgeon attached to that hospital rendered the victim first-aid. Ext. P. 11 is the wound certificate P. W. 9 issued with respect to the wounds he noticed on the person of the deceased. Finding the victim's condition rather precarious P. W. 9 informed the Kottayam East Police Station about it during the night itself and in the early morning he informed the Sub-Divisional Magistrate, Kottayam that it was desirable to have the dying declaration of the victim taken. P. W. 5, a Head-Constable, attached to the Kottayam East Police Station went to the hospital during the night itself, but he found the victim to be not in a condition to give any statement. P. W. 5, a Head-Constable, attached to the Kottayam East Police Station went to the hospital during the night itself, but he found the victim to be not in a condition to give any statement. He waited till the next morning and finding the victim still rather unconscious recorded a statement from P. W. 1 about the occurrence. This was at 7-30 A. M. and Ext. P. 1 the statement so recorded formed the basis of the first information report in the case. Later when the Sub-Divisional Magistrate (P. W. 7) arrived at the hospital he found the victim to be in a position to give a statement as to the cause of his injuries and accordingly he recorded Ext. P. 10. This was between 7-45 A. M. and 8-30 A. M. P. W. 8, the doctor then in charge has certified that the victim was at that time in a position to give a coherent statement about the occurrence. Later on in the day the victim got worse and he died at 10-50 P. M. The inquest and the post mortem were held the next day, P. W. 11, Sub-Inspector of Police was present when the inquest was conducted and he has attested the inquest report (Ext. P. 17). It was a Head-Constable of the Kottayam East Police Station who held the inquest enquiry. P. W. 9 conducted the autopsy and Ext. P. 14 is the post mortem certificate. According to him the victim died as a result of the injuries he sustained on the previous day evening. 5. From a perusal of Ext. P. 11, the wound certificate, and Ext. P. 14, the post mortem certificate and the evidence of P. W. 9. it is fairly clear that whoever the assailant of the deceased was he had subjected him to a rather severe attack. Ext. P. 11 refers to as many as fourteen injuries while Ext. P. 14 contains more, the operation wounds accounting for the addition. According to P. W.9 injuries 9, 12, 13 and 14 were the result of one stab and those injuries were necessarily fattal. Ext. P. 11 describes those injuries as follows : - "(9) Penetrating incised wound 2" x 1" horizontally in the left lumbar region with the omentum protruding through it. The wound is directed upwards and forwards. According to P. W.9 injuries 9, 12, 13 and 14 were the result of one stab and those injuries were necessarily fattal. Ext. P. 11 describes those injuries as follows : - "(9) Penetrating incised wound 2" x 1" horizontally in the left lumbar region with the omentum protruding through it. The wound is directed upwards and forwards. (12) Incised wound 1" x i" penetrating into the cavity of the stomach on the posterior surface of the stomach 4" below the cardiac end. (13) Incised wound i" x i" x i" above injury No. 12 and entering the cavity of the stomach. (14) Rent 2 1/2" long on the left end of the greater omentum." Injury Nos. 1 to 8 in Ext. P. 11 were incised wounds of not very serious nature on the arms, shoulders, palms, ringers, etc., and according to P. W. 9. they could all have been caused by a knife coming into contact with the victim's body while he was trying to ward off his assailant's attacks. Injury No. 10 was a horizontally placed incised wound l 1/2"X 1/2" X 3/4" across the lateral aspect of the middle of the left thigh and injury No. 11 was an abrasion over an area of l 1/2"X l" on the lateral aspect of the dorsum of the right hand with contusion over the same area. The medical evidence is to the effect that injury No. 11 could have been caused by a stone thrown at the victim hitting him. However the evidence is clear that the victim died as the result of the abdominal injuries referred to as Nos. 9, 12, 13 and 14. 6. To bring home the guilt to the accused the prosecution depended upon the following pieces of evidence, (i) the dying declaration of the deceased (Ext. However the evidence is clear that the victim died as the result of the abdominal injuries referred to as Nos. 9, 12, 13 and 14. 6. To bring home the guilt to the accused the prosecution depended upon the following pieces of evidence, (i) the dying declaration of the deceased (Ext. P. 10) recorded by P. W. 7 on the morning of 15-3-1958 and the statement the deceased made first to P. W. 1 and later to P. W. 3 that the accused had inflicted the injuries they saw on his person, (ii) the testimony of P. W. 1 that he heard his brother's cries that Chacko was killing him and that when he went up to the place wherefrom the cries came he saw his brother coming down the hill profusely bleeding with several wounds on his person and the accused running away in the direction of his house with a bloodstained knife in his hand, (iii) the evidence of P. W. 2 that he heard similar cries and that when he ran up to the place of occurrence he saw the deceased lying down on his back and the accused inflicting several stabs on him with the knife (M. O. 2) which he had even before the date of the occurrence seen with the accused and knew to belong to him, (iv) the circumstantial evidence furnished by the injuries on the hand of the accused when he was arrested and the further circumstance that the knife (M. O. 2) produced by the accused at the time of his arrest was found to be bloodstained which on chemical analysis was found to be stains of human blood, (v) the motive as proved by P. Ws. 1 and 3 that for reasons set out earlier in this judgment the relations between the deceased and the accused were very strained for some time prior to the occurrence and last (vi) that the dubious statements which the accused made both in the committal court and at the sessions trial that the occurrence took place to the north of the deceased's house and that nobody had seen the occurrence. 7. We have carefully examined all these pieces of evidence and we find all except the evidence falling under head (iii) above worthy of credence. 7. We have carefully examined all these pieces of evidence and we find all except the evidence falling under head (iii) above worthy of credence. In our opinion items (i), (ii) and (iv) to (vi) conclusively show that the accused was the assailant of the deceased. Mr. V. Krisnaswamy who was retained at State's cost to argue the accused's case and who did his part creditably well tried to belittle the importance of Ext. P. 10, the dying declaration, by inviting our attention to the fact that while P. W. 5 recorded the statement of P. W. 1 at 7-30 A. M. on the ground that the victim was unable to give a statement, the Sub-Divisional Magistrate had between 7-45 and 8-30 A. M. recorded the dying declaration of the victim. The fact that early in the morning (6-20 A. M.) of 15-3-1958 P. W. 9 found the victim to be in a position to make a statement (vide Ext. P. 9) and that when the Sub-Divisional Magistrate arrived at the hospital at 7-30 A. M. P. W. 8 another Assistant Surgeon found the victim in a fit and proper condition to give a statement and the further fact that agreeing with that view P. W. 7 actually recorded the dying declaration between 7-45 A. M. and 8-30 A. M., really conflict with the evidence of P. W. 5 that at 7-30 A. M. he decided to record the statement of P. W. 1 as the victim was found to be unconscious. P. W. 5 further made the position worse for the prosecution by stating that the statement of P. W. 1 was recorded in the hospital room where the victim was lying and that he took not less than 2 to 2 1/2 hours to complete Ext. P. 1 and the mahazar (Ext. P. 2) for the injuries on the victim. In re-examination he corrected himself by saying that the recording of the statement of P. W. 1 was done on the verandah of the room where the victim was lying. It is unthinkable that at the same time or place as P. W. 7 recorded the dying declaration of the victim P. W. 5 was engaged in recording a statement from P. W. 1. Neither P. W. 7 nor the doctor, P. W. 8, would have permitted P. W. 5 to do that. It is unthinkable that at the same time or place as P. W. 7 recorded the dying declaration of the victim P. W. 5 was engaged in recording a statement from P. W. 1. Neither P. W. 7 nor the doctor, P. W. 8, would have permitted P. W. 5 to do that. Evidently the time shown in Ext. P. 1 that it began to be recorded at 7-30 A. M. is wrong. We fail to see any reason for disbelieving P. Ws. 7 or 8 when they say that Ext. P. 10 was recorded between 7-45 and 8-30 A. M. at a time when the victim was in a position to make a coherent statement about the previous day's occurrence. P. W. 1 gave corroboration to the different parts of Ext. P. 10 and having carefully examined that document we do not see any reason for not accepting that as a true version of the occurrence. The lower court's view was the same and it is accepted law now that when the court finds a dying declaration to be true that by itself can form the basis of a conviction. See Khushal Rao v State of Bombay - A I. R. 1958 Supreme Court 22. 8. In this case however Ext. P. 10 does not stand by itself. P. W. 1 gave evidence with regard to his brother's cries that he was being killed that on hearing that he ran up to the scene of the crime and saw his wounded brother coming down the hill slope profusely bleeding and the accused running away from the scene with a bloodstained knife in his hand. It was he who rendered assistance to the victim to walk down the hill to the house from the place he saw him and from there along with friends and relations he took his brother to Peringalam and from there to the Kottayam District Hospital. The version he gave at the trial about what he heard and saw about the occurrence finds a place in Ext. P. 1, the statement he gave to the police within about eighteen hours of the occurrence. He and P. W. 3 have also said that the deceased had told them that the accused was his assailant and those two witnesses also proved the motive for the attack. 9. P. 1, the statement he gave to the police within about eighteen hours of the occurrence. He and P. W. 3 have also said that the deceased had told them that the accused was his assailant and those two witnesses also proved the motive for the attack. 9. When to these facts and circumstances are added the fact that the accused had some injuries on his left hand which according to the medical evidence could have been caused while stabbing another with M. O. 2 and the further fact that M. O. 2 when produced by the accused was found to be bloodstained which on chemical analysis was found to be stains of human blood the conclusion the lower court came to that the accused killed the deceased by stabbing him becomes irresistible. Though in Ext. P. 20 and in his statement at the trial the accused denied having committed any offence it is interesting to notice that in both those statements when the evidence as to the stabbing was put to him the dubious reply was that when the occurrence took place nobody was in the house (evidently referring to the deceased's house) and that nobody had seen it. The following portion of the accused's statement before the Sessions Court may usefully be quoted here:- � The above extract and a similar statement in Ext. P. 20 give support to the prosecution case and lend us assurance to rely and act upon it. 10. We have not so far referred to the evidence of P. W. 2. Indeed we have indicated that we do not consider him to be worthy of credence. It is only on 17-3-1958 that he was questioned by the investigating officer (P. W. 11). Neither Ext. P. 1 nor Ext. P. 2 refers to his presence at the scene of the crime though P. W. 2 would say that he was by the side of the victim when P. W. 1 and his mother and others helped the victim to get up from the place where he lay wounded. He even said that P. W. 1 had sent him to fetch the neighbours to the place. He never went on that mission nor did he go to the victim's house afterwards. According to him he was at the scene of the crime when P. W. 11 went there on 16-3-1958 to prepare the scene mahazar. He even said that P. W. 1 had sent him to fetch the neighbours to the place. He never went on that mission nor did he go to the victim's house afterwards. According to him he was at the scene of the crime when P. W. 11 went there on 16-3-1958 to prepare the scene mahazar. If he were an eyewitness it is not known why he was not questioned then. Further his evidence that the deceased was raised up from the place where he lay wounded by P. W. 1 and others is contradicted by the evidence of P. W. 1. According to P. W. 1 when he went up to the scene running he found his brother slowly coming down the hill towards their house. The witness is alleged to have gone to answer the calls of nature at an unusual hour, namely, 4 O clock. We have not been able to persuade ourselves to agree that the lower court was right in believing him. Even without his testimony there is sufficient evidence to establish the prosecution case and the guilt of the accused for murder. 11. In the circumstances we confirm the conviction the lower court entered against the appellant for the offence of murder. The one stab which was inflicted in the abdominal region had brought about serious consequences and the accused must certainly have done it with the intention to cause the death of his victim or at least with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. However while confirming the conviction for murder we are unable to agree that the sentence of death is the proper sentence to be passed in the case. With evidence of P. W. 2 discarded there is no evidence of actual infliction of injuries on the victim. It was on the evidence of P. W. 2 that the lower court mainly depended upon to inflict the death penalty on the accused for it is stated that even while the deceased was lying down the accused was seen stabbing him. When P. W. I saw him the victim was slowly walking down to his home even though he had serious injuries and was profusely bleeding. According to Ext. When P. W. I saw him the victim was slowly walking down to his home even though he had serious injuries and was profusely bleeding. According to Ext. P. 10 the first act of aggression was a stone thrown at the deceased which hit him on the back of the neck. As per Ext. P. 11 or Ext. P. 14 the victim had no injury whatever in that region. On the other hand injury No. 11 in Ext. P. 11 is alleged to have been the result of a stone thrown by the accused which hit him. That injury could certainly have not made him fall down. Even according to Ext. P. 10 there was a scuffle between them and after the first stab the victim caught hold of the accused's neck and tried to wrest the knife from the accused's hand. It is after that the remaining injuries were caused or inflicted. The evidence leaves us in the dark as to how the attack commenced. In the circumstances even though the accused was the aggressor both initially and thereafter we consider this a proper case for awarding the lesser penalty prescribed by law and accordingly reduce the sentence into one of rigorous imprisonment for life. 12. As the memorandum of appeal showed that the accused was hard of hearing the Division Bench before whom the case first went up for hearing directed him to be produced in court before the case was heard. We had him before us during the hearing of the case and at the conclusion of the hearing we questioned him as to whether he had anything to say about the case himself. We found him to be a stammerer, but there was absolutely nothing wrong with the powers of his hearing. He repeated before us that nobody had witnessed the occurrence. The appeal is in the result allowed to the extent of reducing the sentence into one of rigorous imprisonment for life, but the conviction for murder is confirmed. The reference will stand answered accordingly.