Varghese v. The State Of Kerala — 1966 DIGILAW 97 (KER)

JUDGMENT P. Govinda Menon, J. 1. These two criminal appeals arise out of the judgment of the tamed Sessions Judge of Alleppey convicting the appellants of the offence of murder under S.302 read with S.34 I.P.C. and sentencing each of them to undergo rigorous imprisonment for life. Criminal Appeal 313/65 is by the first accused and Criminal Appeal 314/65 is by the second accused. 2. The appellants Anthappan Varghese and Varghese Elikutty are husband and wife and they live in a house in Mannamcherry Muri near about Alleppey. The prosecution case is that they were running a brothel. Pw. 7 Chinnamma, and Pw. 8 Rosamma were two girls kept in the house for the purpose. Since about two or three months prior to the occurrence Pw. 8 is said to have been living in the house of the second accused's mother Anna in a house close by. In the accused's house they had their daughter Pw. 9 and Pw. 7. Deceased Sadasivan was a habitual visitor to the house, but a few months before the occurrence on one night when he went to the house he is alleged to have picked up a quarrel with Pw.8 and beaten her. Seeing this the second accused went and remonstrated, when Sadasivan is alleged to have caught hold of the tuft of her hair. The first accused came up and they exchanged blows and Sadasivan left the house. Pw. 8 would have it that when he left the place the second accused complained to her husband that the "trouble from Sadasivan is increasing and that if he should come there again they should finish him. Pw. 8 has further stated that the next day the first accused brought M. Os. 2 and 6, two iron rods and kept them in the house. Soon after this the first accused went to Pw. 1, a relation of the deceased and told him about Sadasivan's conduct and wanted him to advise Sadasivan not to go and create trouble in their house and threatened that if he goes there again he would not be left alone. Pw. 1 advised the deceased not to visit the place again and it is alleged that for some time the deceased was not visiting the house. 3. While so, on 22-6-65 at about 10.30 p. m. deceased Sadasivan came to the house in the company of Pws. 2 and 6. Pw. 1 advised the deceased not to visit the place again and it is alleged that for some time the deceased was not visiting the house. 3. While so, on 22-6-65 at about 10.30 p. m. deceased Sadasivan came to the house in the company of Pws. 2 and 6. At that time the two accused and Pw. 7 were sitting in the courtyard, probably waiting for custom. They had a lighted hurricane lamp placed in the courtyard. Pws. 2 and 6 stood a little away in the courtyard and Sadasivan came up and sat near Pw. 7. He said something to the first accused and caught the hand of Pw. 7 and forced her to sit near him. Pw. 7 objected and when she tried to get up Sadasivan beat her on her back and she ran to the north crying. The second accused also got up and went inside the house. Sadasivan followed her. When the first accused saw this he followed him saying 'Did I not ask you not to come to the house again'. Apprehending trouble Pw. 2 also went inside the house. He then saw the first accused attempting to beat Sadasivan with an iron rod and caught hold of the iron rod and prevented the blow falling on him. In the meanwhile the second accused escaped from the room. After she left Sadasivan also left the room. Seeing this the first accused released his hold on M. O.5, got out and gave chase to Sadasivan who was running to the northern side of the compound. When they reached near the tank on the north - eastern corner of the property the first accused beat Sadasivan from behind on the back of his head with the iron rod M. O.2. On getting the blow the deceased tried to sit down, but the first accused beat him again on his head. On receipt of this blow he jumped to the neighbouring purayidem and fell down. The first accused followed him and when Sadasivan tried to get up the first accused beat him on his head with M. O.2. In the meanwhile the second accused also went up to the place with M. O.6 iron rod and the evidence is that both of them beat Sadasivan several times. Dropping the weapons there they Sadasivan to their courtyard and left him there. In the meanwhile the second accused also went up to the place with M. O.6 iron rod and the evidence is that both of them beat Sadasivan several times. Dropping the weapons there they Sadasivan to their courtyard and left him there. The first accused then went back to Velimpurayidom the place where from deceased was dragged and took M. O.2. When he returned to the courtyard he found Sadasivan trying to get up by raising his head. The first accused then beat him again saying 'have you not still died'. In the meanwhile the second accused also came up and beat him. 4. Pw. 7 Chinnamma after running away from the courtyard went to the second accused's mother's house. By that time Pw. 9 Ponnamma the accused's daughter also came up with her child. Anna and Pw. 8 were told as to what was happening and they went up to the accused's house, and saw the two accused dragging Sadasivan to their courtyard and beating him from there. Pw. 6 who had accompanied the deceased on seeing the deceased getting inside the house and the first accused following him saying 'did we not ask you not to come here' apprehended trouble and out of fear ran away from the place. After the first phase of the incident when deceased was beaten by the first accused near the tank and when he got into the neighbouring compound Pw 2 also ran away through the paddy field. When he reached Kalavoor he met one Thommachi and they along with one Baby the brother of the second accused came to the accused's house. They saw Sadasivan lying injured in the courtyard. Baby sprinkled some water on the face of Sadasivan and found that he was really dead. Pw. 2 and others then left the place. 5. Knowing that Sadasivan was dead the accused with their children left the house. Pw. 1 a relation of the deceased got information that Sadasivan was lying injured in the accused's house. He gave information to the other relations and went up to the place and saw Sadasivan lying dead with injuries. Early next morning he proceeded to Alleppey and at 7.30 a. m. laid the first information. Pw. 17 the Sub Inspector of Police recorded the statement Ext. P. 1 and registered a case. He at once proceeded to the scene and held the inquest. Early next morning he proceeded to Alleppey and at 7.30 a. m. laid the first information. Pw. 17 the Sub Inspector of Police recorded the statement Ext. P. 1 and registered a case. He at once proceeded to the scene and held the inquest. He questioned, among others Pws. 4, 5, 7, 8 and 9 some of the eye witnesses. After the inquest the dead body was sent to the Alleppey District Hospital where Pw. 10 the Assistant surgeon conducted the autopsy. Whereabouts of the accused were not known and police men were deputed to search and apprehend them. The second accused was arrested on 28-6-65 at 7 a. m. and the same day at 4 p.m. the first accused was arrested. Pw. 17 the Sub Inspector questioned the first accused and on information furnished by him M. Os. 5 and 6 were recovered Pw. 18 the Circle Inspector verified the investigation made by the Sub Inspector and finally laid the charge sheet against the accused. 6. When questioned in the committing Magistrate's court the first accused stated that on the date of occurrence at about 9. 30 p. m. while himself, his wife and Pw. 7 were sitting in the court yard Pws. 2, 6 and deceased Sadasivan came there. Sadasivan fisted Pw. 7 who cried and ran away, he then assaulted the second accused also and when she went inside Sadasivan followed her and fisted her. Seeing this he also went inside, when Pws. 2 and 6 came inside and caught him and assaulted him. When the second accused got out of the house, deceased followed her and hearing the cry of the second accused he extricated himself from the hold of Pws. 2 and 6 and ran up taking a wooden stick with him. He saw the deceased holding the second accused by the tuft of her hair and fisting and kicking her. He then beat the deceased four or five times and he also got beaten. When the second accused ran towards north deceased Sadasivan followed her and assaulted her and he again beat Sadasivan. In the meanwhile the second accused went inside the room and closed the door and after that he ran away and escaped. The second accused also supported the first accused's statement. To the same effect is their statement in the sessions court also. No witnesses were examined on their side. 7. In the meanwhile the second accused went inside the room and closed the door and after that he ran away and escaped. The second accused also supported the first accused's statement. To the same effect is their statement in the sessions court also. No witnesses were examined on their side. 7. Sadasivan's death due to the multiple injuries sustained by him on that day is well established and is, in fact, not disputed. According to the doctor Pw. 10 Sadasivan had as many as 37 external injuries on different parts of his body. The injuries were all ante mortem. Out of the injuries Nos. 1, 21 and 22 were the most serious ones. They were: (1) A longitudinal linear gaping wound 3" in length and 1/4" in depth seen on the left side of the head just above the forehead; (21) A slightly oblique gaping injury on the middle of the head 4'' in length and 1/2" in depth seen on the left side 1 1/2" away from the medial line. Injury of the skull is seen on the same region: (22) Another gaping and slightly curved longitudinal injury 3" in length and 1/4" in depth seen on the left occipital region. On dissection it was found that a part of the skull bone 1" x 1/2" in size has been separated on the middle of the skull on its left side. This is as a result of injury No. 21. A crack on the skull 1 1/2" in length a little away and lateral to the above injury on the skull was also noticed. There was no corresponding external injury and the doctor has opined that it is due to the impact of the external injury No. 21. Haemorrhage and clots of blood were seen over the membranes covering the brain. According to the doctor the injury to the skull was sufficient in the ordinary course of nature to cause death and in cross examination he has stated that injury No. 21 by itself was fatal. The doctor has given his opinion that injuries Nos. 1, 21 and 22 could be caused by beating with a blunt weapon like M. O.2 and looking to the nature of the weapons they could not have been caused by a weapon like M.O.6. He has stated that injuries Nos. The doctor has given his opinion that injuries Nos. 1, 21 and 22 could be caused by beating with a blunt weapon like M. O.2 and looking to the nature of the weapons they could not have been caused by a weapon like M.O.6. He has stated that injuries Nos. 2, 3, 4, 7, 8, 23, 24, 25, 26, 27 and 30 could have been caused by beating with a weapon like M. O.6. He has further stated that the abrasions noticed by him could have been caused when the victim was dragged on the ground. The doctor has stated that cracks were present on the 8th 9th and 10th ribs of the left side. Death according to him was due to internal haemorrhage of the cerebral arteries and shock due to the multiple injuries. 8. It is also well proved that the deceased sustained the injuries from the compound of the accused and from the paramba just touching it. After registering the case Pw. 17 the Sub Inspector reached the scene by about 8 a. m. The dead body of Sadasivan was lying in the courtyard and inquest was held. Blood was seen on the ground near the head of Sadasivan and M. O.9 is the bloodstained earth taken from the place. A few feet away from this place M. O.3 a piece of the juba said to have been worn by the deceased and which was found to be bloodstained was taken into custody. From near the cow shed M. O.2 one of the iron rods was recovered and about 5 feet from where the dead body lay M. O.1 the hurricane lamp was taken. All these facts have been noted in the inquest report. The existence of a tank on the northeastern corner of the compound is mentioned in the report but no blood was noticed at the place. The evidence shows that the deceased ran north followed by the first accused and when the deceased reached near the tank the first accused beat him from behind. On receipt of the blow deceased pressed his wound and when he was attempting to sit he was beaten again on the head and on receipt of the blow he jumped to the adjacent velimpurayidom and fell down. So there could not have been any blood at the place near the tank where he was first beaten. On receipt of the blow deceased pressed his wound and when he was attempting to sit he was beaten again on the head and on receipt of the blow he jumped to the adjacent velimpurayidom and fell down. So there could not have been any blood at the place near the tank where he was first beaten. Bloodstained earth was recovered from Velimpurayidom where the deceased fell down and was beaten by both the accused. The Sub Inspector also noticed loose earth and here and there were seen stains of blood. M. O.10 is the bloodstained earth collected from there and is mentioned in Ext. P. 5 the scene mahazar. Chemical Examiner's report showed that the packets of earth M. Os. 9 and 10 contained human blood. There cannot, therefore, be the slightest doubt as to where the occurrence had taken place. The first accused, in fact, has himself stated about an encounter inside his house and outside. He has also admitted having taken a wooden stick from inside his house and beaten the deceased with it, but his case is that he had to use the stick in self defence as himself and his wife were severely beaten and assaulted by the deceased and Pws. 2 and 6. 9. The question that remains to be decided is whether the incident did take place in the manner spoken to by the prosecution witnesses or whether in inflicting the injuries the accused was protected by the right of private defence as contended by them Before the learned sessions Judge the prosecution led evidence of various eyewitnesses. That evidence may be grouped under four heads. The first part of the evidence relates to the arrival of the deceased and Fws.2and 6 in the house of accused and what happened in the courtyard and inside the house. The next phase of the incident is the deceased running towards the north, the first accused pursuing him and beating him twice near the tank. The third relates to the incident at Velimpurayidom and the last part of the evidence relates to the subsequent event the dragging of the deceased to the courtyard, beating him again where from he succumbed to his injuries. Pws.2, 6 and 7 are the witnesses who speak to the first phase of the occurrence. Pws. 2 and 6 are the persons who accompanied the deceased to the accused's house. Pws.2, 6 and 7 are the witnesses who speak to the first phase of the occurrence. Pws. 2 and 6 are the persons who accompanied the deceased to the accused's house. Their presence is admitted by the first accused. Pw. 7 is an inmate in the house. Her presence in the courtyard when the quarrel started is also admitted by the first accused. She has been living with the accused since 5 or 6 years. She has deposed that on that night after food at about 10 p.m. herself and accused 1 and 2 were sitting in the courtyard of the house when the deceased and Pws. 2 and 6 came there. Pws. 2 and 6 stood a little away, the deceased came near and was talking to the first accused. He then caught her hand and dragged her so that she could be seated near him. She remonstrated stating 'does it not look bad if people see this' and tried to rise when the deceased beat her on her back and she cried and ran away. The witness further stated that seeing this the second accused got up and went inside the house through the southern door and deceased followed her. Then the first accused rose shouting out 'did 1 not tell you that you should not come here again' and went inside. Fearing that there would be trouble she stated she went to Anna the second accused's mother's house, which was on the other side of the road. By that time Pw. 9 who was lying in the room with her child also came there and knowing from them as to what was happening Pw. 8 and Anna left for the accused's house. Apart from stating that she is one of the inmates of the brothel and as such a disreputable woman, now in the rescue home under the influence of the police and that her tainted evidence cannot be accepted no particular enmity has been suggested or proved between the witness and the accused and no reason is given why she should have given false evidence implicating the accused. She was examined early the next morning when the inquest was held. Her evidence would clearly negative the case of the first accused that his wife was assaulted from the courtyard. 10. Her evidence is corroborated by the evidence of Pws. 2 and 6. Pw. She was examined early the next morning when the inquest was held. Her evidence would clearly negative the case of the first accused that his wife was assaulted from the courtyard. 10. Her evidence is corroborated by the evidence of Pws. 2 and 6. Pw. 6 is a lorry cleaner. He has deposed that on that night he met the deceased and Pw. 2 at the Kelavur junction, the deceased invited him to go to the brothel run by the accused and they went there. The two accused and another woman were sitting in the courtyard. There was a lighted hurricane lantern placed there. They stood a little away and deceased went and sat near them. He caught the girl's hand and when she resented and got up the deceased beat her and she cried and ran away. The second accused then got up and went inside the house, the deceased followed her and seeing this the first accused asked whether he had not told him not to come to the house and followed him inside. Seeing this Pw. 2 also went in and apprehending trouble he ran away from the place. To the same effect is the evidence of Pw. 2 regarding the first portion of the incident. Suggestion was made to both these witnesses whether they also did not go inside and join in assaulting the first accused and both of them have denied the suggestion. Comment was made that Pw. 2 was an exconvict who made himself scarce and was questioned late by the police. Even if he had got frightened and kept back from the police for a couple of days there is nothing surprising. It is not uncommon that in our villages witnesses do not go and volunteer information to the police. So there is nothing very unusual in the conduct of Pw. 2 in not disclosing about the occurrence to the police until he was sent for and questioned. Both the witnesses Pws. 2 and 6 have stated that the accused were running a brothel and Pw. 6 has frankly admitted that even on prior occasions he used to visit the house. 11. Pw. 2 has given evidence regarding the next stage of the incident also. Both the witnesses Pws. 2 and 6 have stated that the accused were running a brothel and Pw. 6 has frankly admitted that even on prior occasions he used to visit the house. 11. Pw. 2 has given evidence regarding the next stage of the incident also. He has stated that when he followed them into the room he saw the first accused attempting to beat the deceased and he caught hold of the iron rod. In the meanwhile the second accused got out of the room, the deceased also left and seeing this the first accused releasing his hold of the iron rod left. The witness has further stated that when he came out he saw the deceased running towards the north followed by the first accused with the iron rod M. O.2 in his hand, and when he neared the tank on the north - eastern side of the compound the first accused beat Sadasivan from behind on his head. He pressed the wound and when he was about to sit another blow was given on his head and then he jumped into the northern compound called velimpurayidom and getting frightened he ran away. On the way he gave information to some people and came back with them and found that Sadasivan had by then died. It may be that Pws. 2 and 6 had accompanied the deceased to the brothel and therefore might be said to be interested witness. But it is wrong as a general proposition to discredit the evidence of a witness purely because he is interested. The only thing is that a court will need extra caution in evaluating the evidence of such witnesses. On a close scrutiny of their evidence in the light of the criticisms levelled against the acceptance of their evidence I agree with the learned Judge that their evidence could safely be accepted. 12. The evidence of Pw. 2 has been corroborated by the evidence of Pw. 3. He lives just to the east of the accused's purayidom. He is a weaver in the coir factory. 12. The evidence of Pw. 2 has been corroborated by the evidence of Pw. 3. He lives just to the east of the accused's purayidom. He is a weaver in the coir factory. He stated that on that night at about 10.30 p. m. he heard the cry of children and on going up saw the deceased running north - east followed by the first accused and when the deceased neared the tank the first accused beat the deceased from behind and when he was about to sit the accused again dealt another blow. On receipt of this he jumped into the neighbouring purayidom and fell down and he saw the first accused beating him. The second accused coming running up from the house and witness saw the second accused also beating the deceased. He has further given evidence of accused 1 and 2 dragging the deceased to the courtyard and after that he left for his house. Beyond stating that the witness is lying, not even a suggestion has been made as to why the witness should perjure against the accused. He is a close neighbour and one who would normally have been present and who could have witnessed the incident. It was stated that it was a dark night and he could not have seen things clearly. The witness has stated that he was standing near the cow shed in the compound of the accused and from the place where he was standing it was only about 15 or 16 feet to the tank where the first beating took place and about 28 feet to Velumpurayidom from where the deceased was beaten again. I have no doubt that his evidence is true. 13. Pws. 4 and 5 are the next set of witnesses who came to the scene, hearing the cry of the children and witnessed the occurrence. Pw. 4, Raghavan lives about 100 feet to the west of the accused's house. He has deposed that on that night at about 10.30 p. m. while he was lying in his house he heard the cry of children from the accused's house and walked up. Pw. 4, Raghavan lives about 100 feet to the west of the accused's house. He has deposed that on that night at about 10.30 p. m. while he was lying in his house he heard the cry of children from the accused's house and walked up. He then saw a man coming from the north with a lighted lantern and they stood near the passage at the northern side of the compound and then saw the deceased jumping into the velimpurayidom and falling down, the first accused close behind him with an iron rod and beating the deceased on his head when he made an attempt to rise. In the meanwhile the second accused came running up with an iron rod which was bent at one end and both of them beat the deceased. The witness further deposed that both the accused then dragged the injured to the courtyard in front of the southern door. It is significant that the doctor had noticed certain injuries which could have been caused if a person is dragged on the ground. After the deceased was brought to the courtyard, the first accused went to the Velimpurayidom and came with his iron rod. He then saw the deceased raising his head and the first accused asking have you not died' beat Sadasivan again. In the meanwhile the second accused also came with her weapon and she also joined in beating the deceased. Pw.4 has further deposed that there were two ladies later identified as Pws. 8 and Anna standing in the courtyard. By that time three or four persons came there, one of them sprinkled water on the face of the deceased and finding him dead left the place. He has identified Pw. 2 as one of the persons who had come there. 14. Pw. 5, Karunakaran is the other witness who was standing near Pw. 4. He lives to the north of the accused's house at a distance of about 200 feet. He is a servant in a tea shop. He has sworn that on that night after returning home and taking his bath he was in his courtyard when he heard the cries of the children from the accused's house and to know what it was about he took a lighted lantern and proceeded towards the accused's purayidom. By that time Pw. He has sworn that on that night after returning home and taking his bath he was in his courtyard when he heard the cries of the children from the accused's house and to know what it was about he took a lighted lantern and proceeded towards the accused's purayidom. By that time Pw. 4 also came there and he witnessed the entire occurrence and he has fully corroborated the evidence given by Pw.4. Both these witnesses were cross examined in detail but nothing material has been elicited to discredit their testimony. What is stated is that it was a dark night and it is impossible to believe the witnesses when they give graphic details of the occurrence. They were standing only at a distance of about 15 feet from the place where the incident took place in Velimpurayidom. Pw. 5 had a lighted lantern with him and they could have easily seen the occurrence. It cannot be said that they are chance witnesses. Both of them are neighbours and the most natural witnesses whose presence at the spot cannot be doubted. No enmity is alleged against any one of them and their statement bear the impress of truth. We have been taken through their evidence and on a close scrutiny of their evidence I am of opinion that the learned Judge was perfectly justified in relying on their evidence. 15. All these witnesses have identified M. O.2 as the iron rod used by the first accused and M. O.6 the rod that is bent at one end, was the one used by the second accused. M. O.6 is said to have been recovered from a tank on information furnished by the first accused. What the information was has not been spoken to by the Sub Inspector and curiously the mahazar prepared for its recovery has also not been marked in the case. In fact no reference has been made about this by the Sessions Judge. M. O.2 recovered from the compound at the time of the inquest was sent for examination and the chemical examiner's report showed that it contained stains of human blood. 16. Two other witnesses are Pws. 8 and 9. Pw. 8 is said to be living in the second accused's mother Anna's house. M. O.2 recovered from the compound at the time of the inquest was sent for examination and the chemical examiner's report showed that it contained stains of human blood. 16. Two other witnesses are Pws. 8 and 9. Pw. 8 is said to be living in the second accused's mother Anna's house. On getting information about the trouble in the accused's house herself and Anna went to the house and witnessed the last stage of the incident viz., the accused dragging the deceased to the courtyard and beating him there. There is no reason to doubt Pw. 8's evidence regarding this as her evidence is corroborated by the two disinterested witnesses Pws. 4 and 5. Pw. 9 is the daughter of the accused. She did not support the prosecution version of the occurrence and was treated as hostile and cross examined. Being the daughter of the accused there is nothing surprising if she did not support the prosecution. 17. The prosecution has adduced evidence to prove that the accused had a motive to commit the crime. Pw. 1 the first informant, a relation of the deceased has given evidence that some time before the occurrence the first accused had gone to him and complained to him about the conduct of deceased Sadasivan in having gone and created trouble in his house and asking him to advise him not to go to the house again. Then there is the evidence of Pw. 8. According to her about 2 or 3 months before the occurrence the deceased had gone to the house and beat her. When she objected she was again beaten and when the second accused questioned him about the propriety of his conduct he caught hold of the tuft of her hair when the first accused came up and there was an exchange of blows between them. Pw. 8 would say that after the deceased left the house the second accused complained to her husband that the conduct of the deceased has become intolerable and that if he should come again he must be finished. According to Pw. 8 the next day the first accused brought the two iron rods M. Os. 2 and 6 and kept them in the house. According to Pw. 8 the next day the first accused brought the two iron rods M. Os. 2 and 6 and kept them in the house. In cross examination she would say that the first accused had even on that day warned Sadasivan not to come again, but she would say it was not said in any seriousness. On the date of the occurrence when Sadasivan came no objection was raised and the evidence shows that he was talking with the first accused and it was only because Sadasivan beat Pw. 7 that the trouble started. It is unsafe on the uncorroborated testimony of Pw. 8 to come to the conclusion that accused 1 and 2 had preplanned the attack and were keeping the weapons ready for use. Pw. 7 is the other woman who lives in the house and it is strange that she does not say a word about the preparation made by the accused in getting ready the weapons. Such rods are easily available in any house. I am therefore, not prepared to believe this portion of the evidence of Pw. 8. The incident, I believe, must have taken place purely because of the conduct of the deceased and then the first accused must have taken revenge by beating him to death. 18. The first accused would contend that they were both seriously belaboured both from outside and inside the house and whatever was done was in the right of private defence. The accused were arrested on 28-6-65. No injuries were noticed on their person. No complaint of assault was made to the Magistrate when they were produced for remand and no injuries were pointed out and naturally they were not sent for any medical examination. The conduct of the accused in running away from the village and not making any complaint to the authorities is very significant. The conduct would certainly have been different if they were the victims of an aggression and the deceased and Pws. 2 and 6 had assaulted them. The defence case gets no support from the prosecution evidence and the only attempt made by the accused to substantiate their case is through the evidence of Pw. 9 the daughter who was treated as hostile and cross examined by confronting her with her case diary statement and the statement recorded from her under S.164 Cr. The defence case gets no support from the prosecution evidence and the only attempt made by the accused to substantiate their case is through the evidence of Pw. 9 the daughter who was treated as hostile and cross examined by confronting her with her case diary statement and the statement recorded from her under S.164 Cr. P. C. Rightly has the learned Judge rejected her evidence. I entertain no doubt that the belated case of an assault by the deceased and Pws. 2 and 6 is a clear after thought 19. I am unable to accede to the contention of the learned defence counsel that the witnesses have suppressed material facts and on that account their evidence is unworthy of belief and the accused is entitled to the benefit of doubt. It is not every doubt the benefit of which the accused is entitled but only to reasonable doubt. I am unable to perceive any reasonable doubt that exists in the case. I cannot agree that the witnesses have suppressed the truth from the court. They have deposed only to what they had seen. When once the evidence comes before court and stands the test of severe legal scrutiny that evidence constitutes legal proof. Legal proof is neither more nor less than what is indicated in the definition of the word 'proved' in S.3 of the Evidence Act, that is to say: "A Fact is said to be 'proved' when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." To quote Fletcher Moulton, L. J., in Hawkins v. Powells Tellery Steem Coal Company Ltd., 1911 (I) KB 988): "Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to the conclusion" (in question), as a fact,; and Buckley, L. J, (at p. 996) "when it is said that a person must prove his case, it is never meant that he must prove it with absolute certainty. AH that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. AH that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. This may be done by direct evidence, or by inference from facts, but the matter must not be left to rest in surmise, conjecture, or guess." Judged by these test 1 have no doubt that the prosecution has proved the case beyond the shadow of a doubt. It would be ridiculous to suppose that the entire neighbourhood were inimical with the accused and joined in a conspiracy to implicate them in a false case. When questioned even the accused had no such case and no motive has been suggested why they should come and perjure against the accused. As stated already the criticism that there was no sufficient light to enable the witnesses to identify the assailants is equally untenable. The witnesses Pws. 3, 4 and 5 are persons admittedly living near the house of the accused and they knew both the accused very well. Besides the lantern M. O.1 which was in the courtyard Pw. 5 had a lantern with him. The witnesses were standing near the place of incident and there would have been no difficulty in identifying the persons and noticing what they were doing. The conduct of the witnesses in not interfering and preventing the accused from beating the deceased is easily understandable as they did not want to get mixed up and get beaten. Evidence of eye witnesses who give clear and cogent evidence with no cause for enmity against the accused should not be discredited on the ground that they were guilty of culpable cowardice. Thus on a careful and anxious consideration of the entire evidence, the circumstances and the probabilities of the case I have no hesitation in coming to the conclusion that the case set up by the accused is false and that the occurrence did take place in the manner spoken to by the prosecution witnesses. 20. The next question that would arise is as to what is the offence committed by each of the accused. That the offence committed by the first accused is murder admits of no doubt. It was contended that there was no intention to cause death. The evidence in the case shows that the three serious injuries, injuries Nos. 20. The next question that would arise is as to what is the offence committed by each of the accused. That the offence committed by the first accused is murder admits of no doubt. It was contended that there was no intention to cause death. The evidence in the case shows that the three serious injuries, injuries Nos. 1, 21 and 22 were on the head and the doctor has stated that injury No. 21 by itself is necessarily fatal. The doctor has stated that injury Nos. 1, 21 and 22 could have been caused only by M.O. 2 and not by M. O.6, M. O.2 was in the hands of the first accused and all the witnesses have categorically stated that the first accused was responsible for the injuries on the head. In beating the deceased with a deadly weapon like M. O.2 on such a vital part of the body, namely, the head the first accused must necessarily be credited with the intention to cause death. The deceased was dragged to the courtyard and when after a few minutes deceased attempted to raise his head the first accused asked 'have you not died' and beat him again. This is a pointer that the first accused did really intend to cause his death. 21. Even otherwise Clause.3 to S.300 I. P. C. would apply in this case. S.3001. P. C. reads: "Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused................ Secondly - ........................... Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death...................." This clause speaks of art intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The sufficiency is the high probability of death in the ordinary course of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determining factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature - Vide the decision in Anda v. The State of Rajasthan ( AIR 1966 SC 148 ). 22. The next submission was that the offence would not amount to one of murder under S.303 I.P.C., but would amount only to an offence under S.304 I. P. C. as the act of the accused would come within exception 2 to S.300. Exception 2 is the following terms: "Culpabic homicide is not murder if the offender, in the exercise in good faith of the right of private defence of a person or property, exceeds, the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intent ion of doing more harm than is necessary for the purposes of such defence." So under this exception the offender is entitled to the benefit of the exception only if he acts in the exercise in good faith of the right of private defence of person or property. Even if in good faith he exercises the right but exceeds the power and causes the death of the other person he could claim the benefit of the exception only if he had done so without any intention of doing more harm than is necessary for the purpose of such defence. It cannot with any show of reason be contended that when the deceased, an unarmed person was running away and escaping from the place there would have been any need to chase him and beat him on the head and when after getting the first two blows he fell down and was lying prostrate to beat him again on the head and also on several parts of his body. Equally unjustifiable would be the dragging of the deceased back to the courtyard and beating him from there till life was extinct. Equally unjustifiable would be the dragging of the deceased back to the courtyard and beating him from there till life was extinct. The act of the first accused would never comes under exception 2 and it is clearly a case of murder: 23. Now coming to the second accused, she could be found guilty of murder only if on the evidence it could be clearly found that she was acting in furtherance of the common intention. Before S.34 could safely be applied, it must be shown that there was premeditated concert or prearranged plan and that the criminal act in question had been done pursuant to that prearranged plan. The question whether there was such an intention or not will have to depend in many cases on inferences to be drawn from proved facts and not an any direct evidence about any preconceived scheme or plan which may not be available at all. If there are no circumstances leading to the inference that there was a prearranged plan or that the accused acted in concert in pursuance of such a plan all of them cannot be held guilty of any one act done by one of the party. Care must be taken not to confuse same or similar intention with common intention. The partition which divides their boundary is often very thin, but nevertheless the distinction is real and substantial and if overlooked will result in miscarriage of justice. The fact that two persons possess same intention or take similar action does not make them jointly liable for the combined effect of their action to constitute a common intention. It is necessary that the intention of the first accused in this case should have been known and shared by the second accused. Several persons could simultaneously attack a person and each can have the same intention and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he committed, but none would be vicariously convicted for the act of any of the other. In this case there could not have been any prior concert as it was a chance meeting. The deceased was not coming to the house for some months and nobody could have expected that he would be visiting the house on that particular day. In this case there could not have been any prior concert as it was a chance meeting. The deceased was not coming to the house for some months and nobody could have expected that he would be visiting the house on that particular day. Therefore, the assailants could not have had any opportunity of having a prearranged plan. Even after coining there the deceased was talking to the first accused. No objection was raised to his coming there and after Pw. 7 was assaulted the second accused left the place and went inside to avoid trouble. The deceased followed her and then the first accused went inside. From the room the second accused again wanted to escape and went out and it was only the first accused who chased the deceased. It is true that later the second accused also joined in beating, but it cannot be said that she was then acting in furtherance of the common intention. There is no evidence in the case regarding any prearranged plan or prior meeting of minds and indeed the indications are to the contrary. It is true that the plan need not be elaborate nor is a long interval of time required. It could arise and be formed suddenly. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But prearrangement there must be and premeditated concert. But as stated by the Privy Council in Mahbub Shah v. Emperor ( AIR 1945 PC 118 ), the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. In any view this is a border line case and I am inclined to give the benefit of doubt to the second accused and find her responsible only for her individual acts and she would be guilty only of an offence under S.324 I. P. C. It is not open to her to plead that there was any right of private defence of person or properly because on both the occasions when she beat, the deceased was lying prostrate and there could not have been any apprehension of any harm being done either to her or to her husband. In the result the conviction and sentence passed on the first accused arc confirmed and the appeal filed by him is dismissed. In the result the conviction and sentence passed on the first accused arc confirmed and the appeal filed by him is dismissed. The conviction and sentence passed on the second accused under S.302 read with S.34 I. P. C. is set aside. Her conviction is altered to one under S.324 I. P. C. and she is sentenced to suffer rigorous imprisonment for three years. Subject to the modification her appeal is also dismissed . Krishnamoorthy Iyer, J. 24. I regret that I have to differ from the conclusions of my learned brother Govinda Menon J. (After narrating the prosecution case and analysing the evidence His lordship concluded): 25. I am not also satisfied with the evidence adduced by the prosecution to prove the motive. No doubt there was an incident in the house of the accused when Sadasivan visited the place 2 or 3 months prior to the date of the occurrence. But the further case developed by the prosecution that on that date the accused 1 and 2 had decided to put an end to Sadasivan in his next visit and for that purpose M.O. 2, M. O.5 and M. O.6 were brought, has not been established. The sequence of events that happened according to the prosecution on 22 6 1965 would prove that the motive alleged by the prosecution was not proved. When Sadasivan met the accused in the courtyard the relationship between the parties was quite cordial. The first accused, even according to the prosecution, did not interfere when Sadasivan forced Pw.7 to sit by his side. The resentment was only on the part of Pw. 7.The very fact that the second accused ran into the house would show that she apprehended some danger from Sadasivan, wanted to be free from him. It was only when Sadasivan followed the second accused inside the house that the first accused also went inside. These circumstances are sufficient to establish that the motive alleged by the prosecution cannot stand 26. It must be mentioned that the accused did not substantiate the defence set up by them. But it is well settled that the fact that the accused were not able to prove the defence set up did not absolve the prosecution of their burden to prove the prosecution case. It must be mentioned that the accused did not substantiate the defence set up by them. But it is well settled that the fact that the accused were not able to prove the defence set up did not absolve the prosecution of their burden to prove the prosecution case. It is unnecessary to repeat that the burden is upon the prosecution to prove that the incidents took place as alleged by the prosecution. The fact that in the statement given by the accused under S.342 they admitted that Sadasivan, Pw. 2 and Pw. 6 visited them on the night of 22-6-1965 and there were some incident as narrated by them cannot be divorced from the context and made use of to support the prosecution case. Their Lordships of the Supreme Court held in Narain Singh v. State of Punjab 1963 (3) SCR 678 at 684 thus: "If the accused person in his examination under S.342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining the circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the court to dissect the statement and to pick out a part of the statement which maybe incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence the admission cannot be used against him divorced from the explanation." Thus on an anxious consideration of the evidence adduced by the prosecution, I am led to think that not only the prosecution has not succeeded in proving the case against the accused by the cogent and reliable evidence but some portion of the prosecution story looks artificial and unnatural. It is not safe to rely on such evidence to enter a verdict against the accused. It is not safe to rely on such evidence to enter a verdict against the accused. Though the prosecution has succeeded in creating some suspicion against the first accused, it looks as if the second accused has been implicated in the case to strengthen the case against the first accused. I am not inclined to believe the prosecution story that the second accused who ran into the house even according to the prosecution when Sadasivan molested Pw.7, would have reappeared in the Velimparambu to take part in the incident that took place there especially when she was not aware that Pw. 2 and Pw. 6 left the scene. But mere suspicion against the first accused, however strong it may be, is not sufficient for a conviction. It is the duty of the prosecution to dislodge the presumption of innocence available to the accused by leading evidence to prove their guilt. In the case before me, if in respect of any of the incidents alleged by the prosecution the evidence is not convincing it is not possible to convict the accused even if the remaining incidents are established. Their Lordships of the Supreme Court observed Sarwan Singh v. State of Punjab AIR 1957 SC 637 at 645: "There is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole, the prosecution story may be true; but between, may be true, and, must be true, there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." After going through the prosecution evidence in detail, I am of the view, that it is not safe to convict the accused on such evidence and they are entitled to the benefit of doubt. 27. In the view I am taking of the evidence, it is unnecessary for me to express an opinion as to whether the second accused can be convicted under S.302 I. P. C. read with S.34 thereof. 28. In the result, I set aside the conviction and sentence entered against the accused and acquit them. They will be released forthwith if they are not wanted for any other case. (On difference in the conclusions of their Lordships regarding the guilt of the two accuseds the case was laid before Mr. 28. In the result, I set aside the conviction and sentence entered against the accused and acquit them. They will be released forthwith if they are not wanted for any other case. (On difference in the conclusions of their Lordships regarding the guilt of the two accuseds the case was laid before Mr. Justice C. A. Vaidialingam for his opinion) OPINION Vaidialingam, J. 29. These two appeals, come up before this court, under S.429 of the Criminal Procedure Code, because of a difference of opinion, between Mr. Justice Govinda Menon and Mr. Justice Krishnamoorthy Iyer, who heard the appeals, in the first instance. 30. There are two accused persons, the first accused being the husband, and the second, the wife. 31. The charge against the two accused was, that they, in furtherance of their common intention to cause the death of one Sadasivan, intentionally or knowingly caused his death, by beating him with M. Os. 2 and 6 iron rods, at about 10.30 p. m. on 22-6-1965, in a purayidom in Mannamcherry Muri and as such they are guilty of an offence, punishable under S.302 I. P. C. or under S.302 read with S.34 I. P. C. 32. Both the accused pleaded not guilty to the charge. The learned Sessions Judge has held that the fair inference to be drawn from the facts and circumstances proved in the case, is that the accused persons acted in furtherance of the common intention to cause the death of Sadasivan or to cause such bodily injuries, as are sufficient in the ordinary course of a nature, to cause death or which they knew to be likely to cause the death of Sadasivan. 33. The learned Sessions Judge concludes his decision by finding, that from the evidence, it is clear that the intention, contemplated under S.300 I. P. C. is present and that the two accused are guilty of the offence, punishable under S.302 read with S.34 I. P. C. In consequence, the learned Judge held each of the accused guilty of the offence punishable under S.302 read with S.34 of the Indian Penal Code, and convicted them of that offence; and sentenced each of them to undergo rigorous imprisonment for life. 34. Criminal Appeal No.313 of 1965 is filed by the first accused and Criminal Appeal No.314 of 1965 by the second accused. 35. 34. Criminal Appeal No.313 of 1965 is filed by the first accused and Criminal Appeal No.314 of 1965 by the second accused. 35. Both the appeals were heard by my learned brothers, Mr. Justice Govinda Menon and Mr. Justice Krishnamoorthy Iyer in the first instance. Mr. Justice Govinda Menon has agreed with the learned Sessions Judge and held that the first accused is guilty of the offence of murder, and so confirmed both the conviction, as well as the sentence. 36. But so far as the second accused is concerned, the learned Judge has held, that under the circumstances, it is not possible to come to a conclusion that in joining the beating of the deceased with the first accused, the second accused was acting in furtherance of any common intention. The learned Judge no doubt, recognises that this is a border line case and that benefit of doubt has to be given to the second accused. Therefore in consequence, the learned Judge held the second accused to be punishable only for what she was found held responsible, namely, her individual acts; and in this view, held that she is guilty only under S.324 of the Indian penal Code. Therefore in consequence, the learned Judge, altered the original conviction of the second accused, into an offence under S.324 and sentenced her to suffer rigorous imprisonment for three years. The conviction of that accused under S.302 read with S.34, and the sentence of rigorous imprisonment for life, passed by the Sessions Judge, was set aside by Mr. Justice Govinda Menon. 37. On the other hand, my learned brother, Mr. Justice Krishnamoorthi Iyer held, that in this case, the prosecution has not succeeded in proving the case, as against the accused; and that at the most, the evidence adduced by the prosecution, only creates a suspicion, as against the accused; and therefore; under the circumstances, the learned Judge gave the benefit of doubt to both the accused. 38. In this view the learned Judge, did not think it necessary to consider separately, as to whether the second accused, if she is to be convicted, is to be held guilty under S.302 read with S.34 I. P. C. Ultimately the learned Judge, set aside the conviction, and sentence passed by the learned Sessions Judge, as against both the accused and acquitted them. 39. 39. Before I proceed further, it is necessary to bear in mind, certain principles regarding the scope and nature of jurisdiction exercised by a court, when dealing with a matter, under S.429, Criminal Procedure Code. 40. Mr. C. S. Narayanan, learned counsel for the second accused, particularly drew my attention to a decision of Mr. Justice Umamaheswaram reported in In re Narsiah AIR 1959 Andhra Pradesh 313. In that decision, the learned Judge had taken the view that unless the opinion of the acquitting Judge is perverse, the golden rule that could be applied when dealing with the matter under S.429 Criminal Procedure Code, is to give the benefit of doubt to the accused. The State Prosecutor, on the other hand, has drawn my attention to another decision of the Andhra Pradesh High Court, wherein according to the State Prosecutor, the Andra Pradesh High Court has taken a different view. That decision is of Mr. Justice Basi Reddy, reported in In re Naganna AIR 1961 Andhra Pradesh 70. The learned Judge, in that decision, is of the view that if the principle be that the opinion of the acquitting Judge should always or nearly always prevail, the procedure to be followed under S.429 Criminal Procedure Code, will become an idle formality. 41. I do not propose to express any opinion regarding these two decisions, because the position in my opinion is now settled, by two decisions of the Supreme Court. 42. The first decision of the Supreme Court is the one reported in Dharam Singh v. State of Uttar Pradesh 1964 (1)Criminal LJ 78. Mr. 41. I do not propose to express any opinion regarding these two decisions, because the position in my opinion is now settled, by two decisions of the Supreme Court. 42. The first decision of the Supreme Court is the one reported in Dharam Singh v. State of Uttar Pradesh 1964 (1)Criminal LJ 78. Mr. Justice Kapur, speaking on behalf of the court, observes, with reference to S.429 of the Criminal Procedure Code, at page 79 as follows:- "It was contended on behalf of the appellants that under S.429, Criminal Procedure Code where there is the difference of opinion between the judges constituting a Division Bench, and the matter is referred to a third Judge, the opinion of the Judge acquitting the accused has to be treated in the same manner, as the judgment of acquittal by the Trial Court and, even though it may not be necessary to find compelling reasons for disagreeing with the opinion of the acquitting judge, it is necessary that the judgment should show that all the findings and the reasons given in the opinion of the acquitting judge are mentioned in the opinion of the third Judge and the judgment should indicate the reasons for disagreeing with the opinion of the acquitting Judge. We can see no warrant for this contention. S.429 of the Criminal Procedure Code provides: " "When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another judge of the same court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion." All it says is that the opinion of the two judges who disagrees shall be laid before another Judge, who after giving such hearing, if any, as he thinks fit, shall deliver his opinion and the judgment or order should be in accordance with such opinion. Now it is obvious that when the opinions of the two Judges are placed before a third Judge he would consider those two opinions and give his own opinion and the judgment has to follow the opinion of the third Judge. Consequently on that opinion is based the judgment of the court. Now it is obvious that when the opinions of the two Judges are placed before a third Judge he would consider those two opinions and give his own opinion and the judgment has to follow the opinion of the third Judge. Consequently on that opinion is based the judgment of the court. For all practical purposes the third Judge must consider the opinions of his two colleagues and then give his own opinion but to equate the requirements with appeals against acquittals is not justified by provisions of S.429 or by principle or precedent." It will also be seen that though Mr. Justice Raghubar Dayal, who was a member of the Bench, took a different view on fact .from the majority nevertheless, as would be seen from the decision of the learned Judge at page 83 of the reports, agrees with the judgment of Mr. Justice Kapur, regarding the interpretation placed by that learned Judge on S.429 of the Criminal Procedure Code. 43. From the extract quoted above, it will be seen that the learned Judges do not accept the position that in dealing with the matter under S.429, Criminal Procedure Code the court should advert to all findings and reasons given in the opinion of the acquitting Judge and that the Judge should indicate the reasons for disagreeing with the opinion of the acquitting Judge. Their Lordships also observed that the third Judge, when dealing with the matter, has to consider the two opinions given by his colleagues and then give his own opinion; but the opinion expressed by the acquitting Judge could not be equated to the requirements of appeals against acquittal as such a position is not warranted by the provisions of S.429 or by principle or procedure. 44. The more recent decision of the Supreme Court is the one reported in Babu v. State of U.P. AIR 1965 Supreme Court 1467. Mr. 44. The more recent decision of the Supreme Court is the one reported in Babu v. State of U.P. AIR 1965 Supreme Court 1467. Mr. Justice Hidayathullah, speaking for the court, after referring to the provisions of S.429 of the Criminal Procedure Code, and after adverting to some misapprehension that exists about the manner, in which the third Judge, is required by law, to proceed when there is a difference of opinion between two learned Judges of the High Court, observes:- "The section contemplates that it is for the third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free, in resolving the difference as he thinks fit." 45. Having due regard to the principles laid down by the Supreme Court and referred to above, after due consideration of the views expressed by my two learned colleagues, I have myself considered the entire matter, and the opinion expressed at the conclusion of the judgment, is the one formed by me, on an appraisal of the evidence adduced in the case. (After discussing the evidence His Lordship continued): 46. In my opinion, the first accused must be found guilty of the offence of murder; and he has to be found guilty of an offence under S.302 of the Indian Penal Code; and he has been rightly so convicted by the learned Sessions Judge and sentenced to rigorous imprisonment for life. 47. Coming to the case of the second accused, normally I am prepared to put her case also more or less on a par with that of the first accused. Both have been parties to a very dastardly and brutal attack on Sadasivan, who, the evidence shows was totally unarmed. The weapon used by both the accused were fairly dangerous weapons. 48. But there are certain circumstances, which I have to take into account for considering the nature of the offence of which the second accused is to be found guilty. Admittedly, even according to the prosecution the second accused beat the deceased only by using M. O.6. The Medical Officer as Pw. 10 has stated that the more serious injuries Nos. 1, 21 and 22, which are found in the head of the deceased, could not have been caused by an instrument like M. O.6. Admittedly, even according to the prosecution the second accused beat the deceased only by using M. O.6. The Medical Officer as Pw. 10 has stated that the more serious injuries Nos. 1, 21 and 22, which are found in the head of the deceased, could not have been caused by an instrument like M. O.6. That in my opinion is a factor which has to be taken into account in favour of the second accused. 49. The second accused was not with the first accused, when the latter was belabouring Sadasivan either near the tank, in the first instance or later in the velimpurayidom. It was only at a later stage after the head injuries have been caused by A.1, that she joined her husband. No doubt, the evidence discloses that she also gave good beating, and joined her husband in dragging Sadasivan to the courtyard and again beat him with M. O.6. 50. In the absence of any direct evidence or any other circumstances, from which a reasonable inference can be drawn that she was acting, with a common intention, along with her husband, in my opinion, the conviction of the second accused, under S.302 and the sentence of rigorous imprisonment for life have to be set aside; and in turn the second accused should be found guilty of an offence under S.324 I. P. C. and sentenced to three years' rigorous imprisonment, for her individual acts. 51. To conclude, in my opinion, the first accused is guilty of an offence under S.302 I. P. C. and the sentence passed by the learned Sessions Judge on that count, must stand. So far as the second accused is concerned, in my opinion, the conviction and sentence passed by the learned Sessions Judge, under S.302, read with S.34, will have to be set aside and she can be found guilty only of the offence, under S.324 I. P. C. and sentenced to undergo rigorous imprisonment for three years. By Court: The Hon'ble Mr. Justice P. Govinda Menon & The Hon'ble Mr. Justice T. S. Krishnamoorthy Iyer Order of the Court in Crl. Appeals Nos. 313 & 314 of 1965. Following the opinion of the third Judge who heard these appeals, we confirm the conviction and the sentence passed on the first accused and dismiss his appeal. By Court: The Hon'ble Mr. Justice P. Govinda Menon & The Hon'ble Mr. Justice T. S. Krishnamoorthy Iyer Order of the Court in Crl. Appeals Nos. 313 & 314 of 1965. Following the opinion of the third Judge who heard these appeals, we confirm the conviction and the sentence passed on the first accused and dismiss his appeal. We set aside the conviction and sentence of the second accused under, S.302 read with S.34 I. P. C. and it is altered to one under S.324 I. P. C. and she is sentenced to suffer rigorous imprisonment for three years. With this modification the appeal filed by the second accused is also dismissed.