JUDGMENT Anna Chandy, J. 1. This appeal by the State is directed against the judgment of the Sessions Judge of Quilon whereby the two accused Raghavan and his brother Paramu have been acquitted of the charge of murder of one Karunakaran of Kollante Vadakkethil House. 2. The prosecution case may be stated thus: Sarojini, the sister of the deceased Karunakaran, left her first husband and began to live with the first accused, Raghavan, in her house as man and wife against the wishes of Karunakaran and others. This disgraceful conduct of his sister, touched Karunakaran to the quick and he was cherishing a deep-rooted enmity against the first accused. Some six months before the incident in this case, Karunakaran stabbed the first accused, and the Adoor Police have charged a case as C. C. No. 189/57 against Karunakaran which was pending trial. The first accused's younger brother Paramu, aged 20, who had been away from the village for a long time, had returned and on 17th May 1958 at about 7-30 a. m. the two brothers way-laid and stabbed Karunakaran who was going to the market to sell arecanuts. The first accused Raghavan brought Karunakaran down to his knee and forcing him down with his left hand inflicted stab after stab on his back with a penknife. The injured Karunakaran raised his head to get up, and the second accused inflicted a stab on his forehead with a dagger. The news of the stabbing reached the elder brother of Karunakaran, PW 1, who rushed to the spot to find Karunakaran lying with bleeding injuries in the lane where the occurrence took place. Karunakaran died within 10 to 15 minutes after the incident. PWs 2 and 3, the eyewitnesses told PW 1 what they saw, and he lost no time in lodging the first information with the Adoor Police, who registered a murder case against the two brothers, completed the investigation headed by the Circle Inspector of Police, Pathanamthitta, and charge sheeted the two accused, who surrendered before the Police on 20th May 1958, under S.302 and 302 read with S.34 of the Indian Penal Code. 3. The plea of the accused both in the committal court as well as in the Sessions Court was one of complete denial. 3. The plea of the accused both in the committal court as well as in the Sessions Court was one of complete denial. They stated that the witnesses were perjuring out of spite, and in the Sessions Court the second accused added that he was not even present at the place. 4. The death of Karunakaran as well as the cause of his death are not disputed. Ext. P. 7 is the post mortem certificate issued by PW 7 who conducted the post mortem examination. The following injuries are noted in the post mortem certificate:-- (1) A horizontal incised wound 1 " x 1/4 " on the middle of forehead, the wound piercing the bone tissue. (2) An oblique incised wound 1 1/4 " x 3/4 " x 1 1/2 " on the uppermost part of right side of back, the wound directed from above downwards to the right. (3) An oblique incised wound 1" x 1" x 2" on the right side of the back into the lower ankle of right scapula, the wound directed from above downwards to the right. (4) An oblique incised wound 1" x 1/2" x 2 " on the middle of right back near the vertebral column, the wound directed from above downwards and to the right. (5) An oblique incised penetrating wound 1" x 1/2" on the back of left side of lumbar region just below the last rib and just left of the vertebral column, the wound directed from above downwards and to the left. (6) An oblique incised penetrating wound 1 " x 1/2 " on the left side of lumber region just above the brim of the left pelvis on the back. (7) An oblique incised wound 1 " x 1/2" x 1/2" on the left side of back in its middle in the posterior axillary line. (8) An oblique incised wound 1 " x 1/4" x 1/2" on the middle groove of I the back of the buttock. On dissection, the left kidney was found injured and an oblique incised wound 3/4" x 1/2 " x 1" on the posterior surface near the pelvis was noted. It was a continuation of injury No. 5. Descending colon subjacent to injury No. 6 was also injured with an incised wound 1/2" x 1/2" x 1/2". On dissection, the left kidney was found injured and an oblique incised wound 3/4" x 1/2 " x 1" on the posterior surface near the pelvis was noted. It was a continuation of injury No. 5. Descending colon subjacent to injury No. 6 was also injured with an incised wound 1/2" x 1/2" x 1/2". The cause of death is noted in the certificate as shock and haemorrhage as a result of the injuries to the kidney and descending colon. PW 7 gives evidence that injury No. 5 is necessarily fatal, and the injured could not have survived more than half an hour. 5. The authorship of the injuries is very hotly contested by the accused, but it is well established by the evidence of PWs 2 and 3. The learned Sessions Judge has chosen to disbelieve them. The reasons given by the court for not relying on their evidence strike us as entirely unjustifiable. They are both independent witnesses, who have no connection with any one involved in the case. Indeed, not a single question has been put to them in cross examination to suggest that they are in any way ill disposed towards the accused or interested in the deceased or his people. Also, it is not even suggested that anybody was particularly interested in bringing the appellants to trouble by putting a concocted story into the mouths of these witnesses. The first information statement given by PW 1 the same day at 1-30 p. m. mentions the names of these two witnesses, as persons who have seen the occurrence. It is further stated there that on coming to the scene PW 1 met them and they told him that while they were seated in the neighbouring smithy of PW 3 they heard the cry and on rushing to the lane they saw the first accused stabbing Karunakaran on his back and the second accused on his fore-head with dagger and both escaping with the weapons. The witnesses were questioned by the Police at the inquest which was held on the same day at 3-30 p. m. They gave the evidence about the incident in all its details and nothing has been suggested in the cross examination to indicate that there was any contradiction between the version they gave at the inquest and their evidence before the court. We have scanned their evidence carefully and we find that these witnesses far from being unreliable are eminently trustworthy. 6. PW 2 is a carpenter who had been to the smithy of PW 3, the blacksmith, on the date of the incident at about 7 a. m. to make a chisel. As they were seated in the smithy they heard a cry "ayho! I am being killed". They rushed to the place and saw Karunakaran on the ground on his knees and hands and the first accused pressing him down by the neck and stabbing him with a knife on the right shoulder. On receiving the stab, Karunakaran lifted up his head when the second accused who was standing in front stabbed him with a dagger on the right side of the forehead. The witness cried out "are you killing him?", when the first accused inflicted three or four stabs on the back of Karunakaran. When the witness repeated the question, the first accused ran to the north with the knife and the second accused to the east with the dagger, and himself and PW 3 returned to the smithy. The witnesses then went to the house of PW 1 to report the matter to him. They found no one there. A little later PWs 1 and 5 were seen running up to the scene of incident and the witness and PW 3 also went there. 7. PW 3 corroborates the evidence of PW 2 and gives evidence in the same terms. In the narration of events at first he only stated that he saw the first accused inflicting four or five stabs on the back of Karunakaran who was being pressed down and that when PW 2 cried out "are you killing him ?" a second time, both the accused ran away from the place with their weapons. However, when he was asked whether the second accused had done anything, he stated that when Karunakaran looked up on getting the first stab, the 2nd accused who was standing in front of him stabbed him on the forehead with the dagger. 8. The learned Sessions Judge in a sweeping statement has declared these witnesses as unreliable, though both of them are absolutely free from any enmity towards the accused and partisanship with the deceased. No question is asked in cross examination to shake their credit. 8. The learned Sessions Judge in a sweeping statement has declared these witnesses as unreliable, though both of them are absolutely free from any enmity towards the accused and partisanship with the deceased. No question is asked in cross examination to shake their credit. The first ground mentioned by the learned Judge to discredit them is that "it is impossible from the way in which these witnesses were attracted to the scene as sworn to by them to say that they had in fact seen the occurrence". The learned Judge gives no reason why he thinks that the witnesses would not have seen the occurrence. What these witnesses first see is Karunakaran on the ground on his knees and hands, and the first accused holding his neck down and the second accused standing by. 'To bring Karunakaran to that position some tussle must have preceded and cries must have been uttered and heard before the actual stabbing took place. There is nothing inherently improbable in the closest neighbour living just 128 feet away hearing the cry and reaching the spot in quick time. There are as many as 8 injuries on Karunakaran's body of which about 7 are on the back. Another ground on which the Sessions Judge thought it fit to discredit the evidence of these witnesses is their conduct in not going to the injured and rendering him help. The learned Judge has imported a lot of sentimentalism to discredit these witnesses on this score. He takes them to task for not rushing to help the injured Karunakaran, though they say that they were afraid of the accused and one of them was afraid even of the sight of blood. It is not in the nature of every person to play the 'good Samaritan' and that does not mean that such a man has to be treated as inhuman and hence unreliable. When humaneness to render first aid to injured persons and the sense of civic duty to rush to the police station to give information of grave crimes are not always seen to be the virtue of even the educated among our citizens, it is too much to expect such things from illiterate carpenters and blacksmiths. Anyway, their avoiding the scene of bloodshed even if it be due to callousness does not reflect any discredit and the eyewitnesses certainly do not become unreliable on that score. 9. Anyway, their avoiding the scene of bloodshed even if it be due to callousness does not reflect any discredit and the eyewitnesses certainly do not become unreliable on that score. 9. The learned Judge casts a doubt on PW 2's story of going to P. W.3's smithy for making a chisel, basing his arguments on what he terms a discrepancy between the evidence of PWs 2 and 3. PW 2 stated that he entrusted the steel (3ru6) piece for making chisel while PW 3 says that it was a file (1rM) that was entrusted. A file is made of steel and can as well be referred to as a steel piece and the inexactitude in the expressions used by the carpenter and blacksmith cannot be magnified to such an extent. These slight discrepancies far from discrediting the witnesses only give indication that their versions are their own and not what someone taught them to say. The unpunctuality of the blacksmith in not starting the work of making a chisel on the third day after being entrusted with the materials is also pointed out as an argument to discredit his evidence. That is a thing of usual occurrence and there is nothing improbable in it. The learned Judge has also tried to pick holes in the conduct of PW 2. Some questions were asked to the witness, but he denied them sooner than they were asked. One of such answers is that he does not know who married his sister. A lot of uncomplimentary epithets have been showered on him on this account. One of the sisters of the witness eloped with a man against the knowledge of her parents and to the lasting disgrace of her brothers and though not married, they lived as husband and wife. Under such circumstances if the brother were to say that he does not know who married his sister, there is nothing of "unscrupulousness" involved in it as the sister is not really married. PW 3 is sought to be discredited because of his hesitancy to describe the part played by the second accused. Under such circumstances if the brother were to say that he does not know who married his sister, there is nothing of "unscrupulousness" involved in it as the sister is not really married. PW 3 is sought to be discredited because of his hesitancy to describe the part played by the second accused. A reading of his evidence would show that it was just an inadvertent omission on his part to describe the stab given by the second accused in the narration of events and when that fact was brought to his notice he stated clearly that when Karunakaran looked up on getting the stab from the first accused, the second accused standing in front, stabbed him on his forehead with a dagger. It is not possible to draw any inference adverse to the witness from such an inadvertent omission made by him. Another ground on which PW 3 is discredited is that he mistakenly stated that the occurrence was in 1123 instead of 1133. Nothing turns on his mistake regarding the year especially when giving evidence in court on the 5th August 1958, he stated that the occurrence took place two months back. He is an illiterate, blacksmith and such lapses of memory or inadvertent mistakes only show the untutored veracity of his evidence. Thus it is seen, that the evidence of eyewitnesses is discredited and discarded on imaginary and untenable grounds. We would have been reluctant to interfere with the appreciation of the oral evidence by the trial Judge but for the fact that it is patently wrong. 10. Besides the direct evidence of PWs 2 and 3 there is also the circumstantial evidence given by PWs 1, 4, and 5. PW 1 gives evidence about the motive that prompted the accused to commit the crime. He swears that Sarojini, the sister of the deceased, abandoned her first husband and began to live with the first accused as man and wife against the wishes of Karunakaran and others. Karunakaran was cherishing a deep-rooted enmity against the first accused. Because of this about six months before the incident, Karunakaran stabbed the first accused and the Adoor Police have charged a case against Karunakaran as C. C. 189/57. Ext. P.2 is the copy of the Police charge sheet in that case and the case was under trial on the date of the incident. Because of this about six months before the incident, Karunakaran stabbed the first accused and the Adoor Police have charged a case against Karunakaran as C. C. 189/57. Ext. P.2 is the copy of the Police charge sheet in that case and the case was under trial on the date of the incident. The truth of this statement is not challenged in cross examination, but it is argued that there was no immediate provocation for the act. PW 1 says that the second accused was not in the place when Karunakaran cut the first accused and the Police charged the case against him. It is a fact that the prosecution has not proved any proximate cause for this act of retaliation. Evidently the return of the second accused who is an immature youth of 20, strengthened his brother's long-cherished desire for revenge on Karunakaran. PW 4, the father of PW 3, gives evidence that the second accused went to him on the date of incident at 7 a. m. for no ostensible reason. The evidence of PW 4 is branded as "artificial and make-believe" by the learned Judge. In the I retaliatory scheme, the second accused might have gone to the smithy to reconnoitre the situation to find out the advantageous position to way-lay the deceased, and it does not strike us as an awkward attempt to fill up any gap in the prosecution case. PW 5 swears that when he was in his tea shop he saw the second accused running up from the west with a dagger in hand. Then one Raghavan who was present there asked the second accused where he was going and the second accused replied that he was not sure where he was going. When questioned again, he said that he was coming after stabbing Karunakaran. The witness immediately went to the junction to ascertain what the matter was. There he met PW 1, the deceased's brother and reported to him what the second accused told him. They then rushed to the scene of incident and a little latter found Karunakaran dead. The learned Sessions Judge brands this evidence as "silly and artificial" as it is impossible to think that a person after having comitted such a heinous crime would expose himself in that manner and make a confession to persons who are not on intimate terms with him. The learned Sessions Judge brands this evidence as "silly and artificial" as it is impossible to think that a person after having comitted such a heinous crime would expose himself in that manner and make a confession to persons who are not on intimate terms with him. Here also the learned Sessions Judge has slipped into an error in attempting to "divine the mind of man". Some persons commit crimes in secret and make no public announcement while some others commit crimes in secret, but in the heat of the moment, blurt out their deeds in public. There is nothing improbable in the second accused who wanted to retaliate on Karunakaran who cut his elder brother in his absence forgetting himself in the heat of the moment and announcing the "victory" he scored over his brother's assailant. Another ground for discarding the evidence of PW 5 is the non examination of Raghavan. The declaration made in public in front of the tea-shop is not meant to be heard by Raghavan alone. PW 5 heard the declaration and saw the second accused with the dagger. The confession to Raghavan is not a material thing. PW 5 gave direct evidence of what he saw and heard and he is perfectly competent to give evidence about it. The inference that PW 5 is a kinsman of Karunakaran is also not warranted by the evidence. Another ground for discarding him is that one Parasurama Iyer who gives tuition to the witness is living away from his wedded wife with a woman with whom he had no lawful marriage alliance. In his anxiety to find out reasons to discredit the evidence of PW 5 the learned Judge has made adverse remarks about the conduct of Parasurama Iyer who is neither a party nor a witness in this case. Moreover, one is at a loss to find out what the relationship is between Parasurama Iyer's private life and the credibility of PW 5. The fact that PW 5 saw the second accused going with a dagger and that he (second accused) told him that he was coming after stabbing Karunakaran is made mention of by PW 1 in his first information statement. It is too much to presume that such a statement should be introduced in the first information statement if that was not what really happened. The evidence of PW 5 has to be accepted. It is too much to presume that such a statement should be introduced in the first information statement if that was not what really happened. The evidence of PW 5 has to be accepted. Another item of evidence is the surrender of the first accused with the knife before the Sub-Inspector of Police on the 4th day of the incident as proved by Ext. P. 10 and the evidence of PW 12 who has attested it. The mahazar is discredited because of the correction in the date from 25th to 20th. Such a correction does no good at all to the prosecution case and it has to be taken that it is only due to some carelessness on the part of the officer who prepared the mahazar. There is no correction in the letter forwarding the mahazar to the Magistrate. There is also no reason at all to discard the evidence of the attestor PW 12 who had gone to the Police Station to make complaints about the damage caused to his cultivation by his neighbour's cow. To crown all, the learned Sessions Judge has branded Karunakaran as "a man of bad character". The learned Judge observed that "a person of his calibre and antecedents could at any time have fallen into the hands of his enemies". There is absolutely no basis for any of these statements or inferences. The only criminal case that has come out in evidence against him is the one for causing hurt to the first accused and which was pending trial. 11. On the whole we are constrained to remark that the appreciation of the prosecution evidence by the learned Judge is prejudiced and unjustifiable. The cardinal principle to be followed in the appreciation of oral evidence is to see whether the witness has or has not a motive to perjure. The two eyewitnesses in this case, though a carpenter and a blacksmith, are ideal witnesses as far as the circumstances of this case are concerned. Though their station in life is humble, they are unbiassed witnesses of truth who have no animosity to the accused or partisanship to the deceased to swear away the lives of two young innocent neighbours. Their impartiality and truthfulness have not been challenged by a single question in cross examination. Though their station in life is humble, they are unbiassed witnesses of truth who have no animosity to the accused or partisanship to the deceased to swear away the lives of two young innocent neighbours. Their impartiality and truthfulness have not been challenged by a single question in cross examination. After a careful and anxious consideration of the evidence of these witnesses we have come to the conclusion that there is nothing which would justify the discarding of their testimony. So we believe them and we are prepared to act upon their evidence. The prosecution has thus established that it was the second accused who inflicted the injury on the deceased's forehead (injury No. 1 in the post mortem certificate) and that all the remaining injuries were inflicted by the first accused. 12. There is a strong motive for the first accused to murder. The desire to retaliate was strengthened by the arrival of the second accused and both the accused way-laid the unsuspecting Karunakaran on his way to the market to sell a bag of arecanuts. He was unarmed and was taken by surprise. The attack was brutal. The brutality of the first accused's act is evidenced by the number of stabs most of which are on vital parts of the body. So far as the first accused is concerned the offence is murder. There are also no extenuating circumstances. Hence he has to be convicted of murder and to be condemned to the extreme penalty. 13. The second accused is charged with the offence punishable under S.302 read with S.34 of the Indian Penal Code. S.326 of the Indian Penal Code is also added evidently as an alternative. The learned Public Prosecutor argues that the second accused has to be convicted of murder by the application of S.34 of the Indian Penal Code. The use of S.34 of the Indian Penal Code is a very difficult one. The relevant principles to be kept in mind in applying S.34 of the Indian Penal Code are laid down in the Supreme Court decision reported in AIR 1955 SC 216 (Pandurang v. State of Hyderabad) which accepted the principles enuciated in the Privy Council decisions reported in AIR 1925 PC 1 (Barendra Kumar Gosh v. King Emperor) and in AIR 1945 PC 118 (Mahabub Shah v. Emperor). It was held that "in the case of S.34 it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan, because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others ; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice". In this case there is no evidence of pre-concerted plan or a meeting of minds. We know nothing of what they said or did before the attack. The second accused has no motive to kill Karunakaran, at best he joined his brother to retaliate and gave "a stab for a stab". His brother, the first accused overstepped the limits, might be without the knowledge of the younger brother. Though the weapon used might be a lethal one, a single stab on the forehead causing not a very serious injury does not impute the knowledge or intention to kill. After the incident, the brothers ran away in two directions. In the circumstances of this particular case, we are of the opinion that the facts disclosed do not warrant an inference of common intention to kill on the part of the accused. Hence the second accused has to be held liable only for what he actually did. His act falls under S.326 of the Indian Penal Code, as the stab on the forehead has caused the fracture of the skull. In the result, we quash the order of acquittal passed by the learned Sessions Judge. Hence the second accused has to be held liable only for what he actually did. His act falls under S.326 of the Indian Penal Code, as the stab on the forehead has caused the fracture of the skull. In the result, we quash the order of acquittal passed by the learned Sessions Judge. We convict the first accused under S.302 of the Indian Penal Code and order that he be hanged by the neck till he is dead, and we convict the second accused under S.326 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for five years.