Gopal Rao Ekbote, J.- This is an appeal by the accused who have been convicted under sections 302 and 302 read with sections 34, Indian Penal Code and have been awarded imprisonment for life against the judgment of the Additional Sessions Judge, Kurnool given on 21st May, 1964. The necessary facts are that A-2 is the paternal uncle of A-1. Both of them are residents of Narnur Village, 8 miles away from Kurnool town. A-1’s sister and the deceased’s sister were married to brothers in Kottala Village. The deceased Budanna also belongs to Narnur Village. On 8th December, 1963, it is alleged that the deceased went to the house of A-1 and finding his wife alone in the house tried to molest her. Later in the evening the same day, when A-1 and his uncle, A-2, came home from the fields, they were informed about it. The accused thereupon wanted to kill the deceased and began to search for him. At about 8 p.m., when the deceased was in the Coffee Hotel of Gokari Sab (P.W. 1) at the outskirts of the village, Narnur, along with some others to take tea, A-1 armed with a dagger and A-2 with a stick entered the Hotel abusing the deceased for having tried to molest A-1’s wife. A-2 beat the deceased on his head with the stick as well as on his right hand. A-1 stabbed him on his left chest. The deceased holding his stab injury with his palm ran towards the bridge. The accused chased him. The accused, however, did not pursue their chase and returned. The deceased went about 200 yards from the Hotel and sat on the bridge. He, however, fell down from the bridge and was lying in a slushy field. P.W. 6, who is the sister of the deceased, coming to know about the incident and the fact that the deceased was lying in the paddy field near the bridge went there along with her another brother (P.W. 5) and some others. They found the deceased lying in the paddy field of Gurumurthy below the bridge. P.W. 6, who is the sister of the deceased, coming to know about the incident and the fact that the deceased was lying in the paddy field near the bridge went there along with her another brother (P.W. 5) and some others. They found the deceased lying in the paddy field of Gurumurthy below the bridge. They brought him to the road where the deceased told P.W. 5, P.W. 6 and others that when he was sitting in P.W. 1’s Hotel, A-1 and A-2 came there, beat and stabbed him and that he ran to that bridge and when he was sitting on it he became dazed and fell into the field. The deceased was then removed to the village chavadi. The Village Munsif came there. He recorded the statement of the deceased and obtained his thumb impression upon the said statement. The deceased thereafter was taken to the Government Hospital by P.W. 5 and others. He was admitted in the Hospital by P.W. 9. He was then admitted into Surgical Ward No. 1. P.W. 11, who is another Doctor, carried on some operation. The deceased, however, died at 10-25 a.m. on 9th December 1963. An inquest was held the same day by P.W. 17 between 12-45 P.M. and 2 p.m. Exhibit P-23 is the inquest report. P.W. 21, the Sub-Inspector received the report at 12-30 a.m. on 9th December, 1963. He thereupon started to the scene of occurrence. He reached there at 4 a.m. He examined P.Ws. 1, 3, 5 and others and thereafter went to Kurnool. He changed the F.I.R. which was earlier issued under section 325 to section 302, Indian Penal Code. The Circle Inspector (P.W. 22) verified the investigation. P.W. 12 conducted the autopsy on 9th December, 1963. Exhibit P-12 is the post-mortem certificate. Since the accused were absconding, charge-sheet was filed after the conclusion of the investigation on 3rd January, 1964. The accused surrendered before the Court on 11th January, 1964. The accused denied the offence and pleaded not guilty. The prosecution examined in all 22 witnesses and produced several documents. Upon this material, the learned Sessions Judge found both the accused guilty as stated supra, under sections 302 and 302 read with section 34, Indian Penal Code and both the accused were sentenced each to undergo imprisonment for life. The entire case depends upon the eye witnesses who are P.Ws. Upon this material, the learned Sessions Judge found both the accused guilty as stated supra, under sections 302 and 302 read with section 34, Indian Penal Code and both the accused were sentenced each to undergo imprisonment for life. The entire case depends upon the eye witnesses who are P.Ws. 1 to 4, the dying declaration recorded by P.W. 13 (Exhibit P-13), and the oral dying declaration alleged to have been made by the deceased before P.Ws. 5 and 6. P.W. 1, who is the proprietor of the Coffee Hotel, stated in his evidence that he was sitting at the entrance of his Heal on the day of the occurrence near beedies almirah (illegible) selling coffee and tiffin. Ibrahim (P.W. 2) Dada Sab (P.W. 3) Krishnamurthy (P.W. 4), Somanna not examined), Buddanna, the deceased, and Tirupati Rao were present in his Hotel. While his son was supplying tea to them, A-1 and A-2 came there armed with a dagger and Pattudu Katte respectively. A-2 abused the deceased and said “Enthapani Chestnavura” and lifted the stick. The deceased got up and went forward. A-2 beat him on his head and caused bleeding injury. A-2 again gave another blow on the deceased’s right hand. A-1 stabbed the deceased in his chest on the left side with the dagger and removed it. The deceased held his chest wound and began to run towards east. The accused chased him. He further said that there were blood-stains on the slabs in the Hotel. The witness therefore directed his son to clear the bloodstains by water. He produced an account book of his hotel, Exhibit P-1. In the cross-examination he admitted that prior to his starting the Hotel business, he was doing the business of cutting the carcase, and that he closes his Hotel usually between 8 and 9 p.m. He however stated that there was no exchange of words between the deceased and the accused and that the deceased was a strong man. He also stated that A-2 and the deceased did not come to grips nor the deceased fell down A-1. The deceased did not speak nor cried nor shouted The persons present also did not move nor intervene nor say anything. He further deposed that some of his sons also were there. He also stated that A-2 and the deceased did not come to grips nor the deceased fell down A-1. The deceased did not speak nor cried nor shouted The persons present also did not move nor intervene nor say anything. He further deposed that some of his sons also were there. Even when the victim and the assailants had run away, he admitted that they did not come out and see as to where they were going. According to him, he asked his son to clean the blood which had fallen on the slabs. In the centre of the Hotel there were blood-stains he stated, and that his son cleaned it with water and broomstick. He admitted that he did not report this incident to the Village Munsif nor to the people of the deceased. He admitted further that there was no blood in front of his Hotel or on the steps or on the pials when the Sub-Inspector came. He further deposed that there are two factions in the Village, one headed by Chintareddy, who is the President of the Panchayat and the other headed by Venkatareddi. He denied the suggestion that he was giving evidence at the instigation of Chintareddy. He was not in a position to say as to who visited his Hotel earlier that day. P.W. 2, who was the permanent resident of Narnur, has shifted his residence to Orwakal, which is 7 miles from the village. His parents, sisters and brothers however continue to live in Narnur and look after the family lands. He stated that on the date of the offence at 12 noon he went to Narnur to make a part-payment of a debt due to P.W. 15 due on a promissory note, Exhibit P-4. He paid Rs. 70 towards principal besides interest and made an endorsement which is marked as Exhibit P-5. He made that payment at about 1 O’clock. He deposed that after he made that payment, he went to see his fields and after returning to his home, he went to the hotel to take tea, and it is there that he witnessed the occurrence. He stated in his deposition quite contrary to the evidence of P.W. 1 that A-2 abused the deceased and said ‘enthapani chesthivira!‘The deceased got up and walked. Then A-1 and A-2 came to grips with him. He stated in his deposition quite contrary to the evidence of P.W. 1 that A-2 abused the deceased and said ‘enthapani chesthivira!‘The deceased got up and walked. Then A-1 and A-2 came to grips with him. A-2 beat him on his head and on his right upper hand. A-1 stabbed him with the dagger on the left side of the chest saying “Napillanu Pattukuntava”. The deceased held the chest wound with his right hand and ran away towards east. The accused chased him. There were blood-stains on the Hotel slabs. The same night he went back to Orwakal. In the cross-examination, he further stated again quite contrary to what P.W. 1 stated that the accused were shouting when they were getting up the steps saying ‘Buddagadunnadu’ and were also abusing him. The 1st accused embraced the deceased from his front side and A-2 from his back side. The pushed each other. While the deceased was felling A-1 down, A-2 beat him with a stick. The deceased did not fall down A-1 nor fisted him. Both A-1 and the deceased fell down. The deceased fell over A-1, and A-1 caught the shirt of the deceased. The deceased ran away leaving his shirt in the hands of A-1. After A-1 stabbed the deceased, the latter fell down. He contradicted P.W. 1 when he stated that P.W. 1’s children or grandchildren were not in the Hotel. He further admitted that when he went home, he did not tell even his parents or brothers and sisters about it. He did not tell anybody till the Police examined him. He, contrary to the examination-in-chief, stated that he did not go home at all as he thought that his parents might abuse him. He then changed and stated that he went home. Quite curiously he stated that the crowd was saying that somebody had stabbed the deceased and that he did not open his mouth. Upon reading his evidence we are satisfied that the witness is depending more upon his imagination than telling the Court what he had actually seen. We doubt very much the presence of P.W. 2 at the time of the occurrence. Upon reading his evidence we are satisfied that the witness is depending more upon his imagination than telling the Court what he had actually seen. We doubt very much the presence of P.W. 2 at the time of the occurrence. When he had made the payment to P.W. 15, there was no necessity for him to stay in the village after 1 O’clock and if he had gone to the field and wanted to go back, he could have gone-back by the last bus which was available in the evening. The manner in which he described the incident creates an impression upon our mind that he is not a truthful witness. He was examined for the first time by P.W. 22 on 11th December, 1963 after three days. We do not therefore think it safe to depend upon the evidence of P.W. 2. P.W. 3 is another eye witness. He stated that A-1 and A-2 came into the Hotel armed with dagger and stick respectively. A-2 abused the deceased and lifted his stick; The deceased stood up and walked forward. A-2 beat him on his head with the stick and also on his right" upper arm. The deceased tried to run away. A-1 saying ‘Ma pillani pattadaniki vachinava’ stabbed the deceased on his left side of the chest. The deceased held the stab wound with his left hand and ran away. A-1 caught his shirt and it was torn. A-1 and A-2 chased the deceased with their weapons. In the cross-examination, he admitted that the Sub-Inspector brought them from Narnur at his cost on Sunday to Kurnool and kept them in Police Club and that the Police were feeding them. He further admitted that "From these...days Sub-Inspector is reading out to us our 164 statements and asked us to say so." He took them to Nandikotkur Court to give that statement there. He further admitted that he takes tiffin and tea both in the morning and in the evening in P.W. 1’s Hotel every day, and that he owes Rs. 120 to P.W. 1 on that account. He further stated that A-1 came holding the dagger in his right hand lifted up. He further admitted that he takes tiffin and tea both in the morning and in the evening in P.W. 1’s Hotel every day, and that he owes Rs. 120 to P.W. 1 on that account. He further stated that A-1 came holding the dagger in his right hand lifted up. The manner in which he was giving evidence before the Court has been noted by the learned Sessions Judge with the remarks that "the witness gives halting answers with much delay and frequently changes his answers." He seems to have been warned more than once to answer the questions put to him but he was not inclined to answer them. He admitted that he did not report the matter to the Village Munsif and said that by the time he went to his house, people were talking that the deceased was stabbed in the Hotel and they were going to the bridge and that he did not tell anybody what he had seen. They were also talking that A-1 and A-2had stabbed the deceased and that till then he did not enquire why the accused injured the deceased. He also did not know as to what happened after the deceased left the Hotel. We are not inclined to place any reliance upon the evidence of P.W. 3. Firstly, he seems to be a tutored witness according to his own admissions and secondly in view of the demeanour of the witness noted by the learned Sessions Judge during the course of recording his deposition, it would not be safe to place any reliance upon the evidence of this witness. That apart, his conduct that he did not tell anybody and it was he who got information from others and yet kept quiet is something which cannot easily be swallowed. P.W. 4 is yet another eye witness. He stated that he went to P.W. 1’s Hotel at lamp lighting time on the day of the offence. A-1 and A-2 came there armed with a dagger and stick respectively. Seeing the deceased, A-2 abused the deceased and beat the deceased on his head and right upper arm. A-1 stabbed the deceased on his left chest. He took out the dagger from his waist lifting up the shirt and lifted the dagger and stabbed. The deceased held the stab wound with his left hand. Seeing the deceased, A-2 abused the deceased and beat the deceased on his head and right upper arm. A-1 stabbed the deceased on his left chest. He took out the dagger from his waist lifting up the shirt and lifted the dagger and stabbed. The deceased held the stab wound with his left hand. A-1 caught the shirt of the deceased and it was torn. The deceased ran towards the bridge and the accused chased him. In the cross-examination, he stated that it was at lamp lighting time that he went to the Hotel and it was at that time that the offence took place. This witness seems to be drawing more upon his imagination. He stated that tea was specially prepared for Abdur Rahman. Perhaps the witness was confusing between Abdur Rahman and Ibrahim. He stated that he saw there tea leaves being boiled and that tea leaf is of the size of Mani leaf. One leaf is sufficient for one cup or Class or tea, according to him and he stated that it is only those persons who have fever that take tea. He stated that although he had no fever that day, he had gone to take tea. Quit; contrary to the other witnesses, he said that A-1 and A-2 came into the hotel silently. Neither of them came to grips nor pushed each other, and soon after the stab injury was inflicted on the deceased, all customers went out. The deceased and the accused only were in the Hotel. P.W. 1 and his son also came out. They all ran to their own houses. He did not repeat the incident to anybody. He however admitted that Chintareddy asked him to give evidence and assured him safety and that he borrows money and grains from him now and then. Chintareddy asked the witness to say as the Circle Inspector wanted him to say. Although in cross-examination, it was elicited that Chintareddy wanted him to speak the truth only and that the Sub-Inspector wanted him to speak truth only, the conclusion cannot be avoided that this witness also was tutored and was giving evidence under the influence of Chintareddy. In view of his evidence which is contrary to the other evidence, it is not possible to give any credence to his evidence. The result of the foregoing critical appreciation of the evidence of P.Ws. In view of his evidence which is contrary to the other evidence, it is not possible to give any credence to his evidence. The result of the foregoing critical appreciation of the evidence of P.Ws. 1 to 4 is that while we do not find any difficulty in rejecting the evidence of P.Ws. 2 to 4 (both inclusive), it is difficult to reject the evidence of P.W. 1. It is true that there are some discrepancies in his statement and the evidence given by P.Ws. 2 to 4, but once we reject the evidence of P.Ws. 2 to 4, there is very little which was pointed out so far as the evidence of P.W. 1 was concerned. Even the accused have nothing particular to say against P.W. 1. P.W.1’s evidence inspires confidence and we feel that he is a truthful witness. Next comes the evidence of P.Ws. 5 and 6 who deposed in regard to the oral dying declaration. According to P.W. 5, the deceased is the junior brother of P.W. 5, although he was living separately. His evidence is that his sister (P.W. 6) went to him and informed that A-1 and A-2 stabbed the deceased in P.W. 1’s Hotel. Getting that information they went to their cousin brother Thimmaiah and took him and another savari to the bridge as the deceased was said to be lying there in paddy field. They removed the deceased to the road and asked him about the incident.The deceased, it seems, stated that A-1 and A-2 came to him to the hotel saying that he tried to molest A-1’s wife and A-2 beat him and A-1 stabbed him, that he ran away and was sitting on the bridge and fell into the paddy field. P.W. 5. P.W. 6 and others then carried the deceased on a cot to the Village Munsif’s chavadi where the Village Munsif recorded his statement to the narration of the deceased. It was read over to the deceased and he put his mark as he could not sigh on account of pain. P.W. 5. P.W. 6 and others then carried the deceased on a cot to the Village Munsif’s chavadi where the Village Munsif recorded his statement to the narration of the deceased. It was read over to the deceased and he put his mark as he could not sigh on account of pain. In cross-examination he stated that his sister had informed him that she had heard that the crowd was saying at P.W.1’s hotel that the deceased was stabbed by A-1 and A-2 in the hotel, that she saw the deceased lying in the paddy field of Gurumurthayya and that he was conscious and she talked to him and he told her that A-1 and A-2 beat him. He admitted that before he went to the bridge he did not inform the Village Munsif and that there was none at P.W. 1’s hotel then. He further stated that when he asked the deceased as to who were present, he told the names of 8 persons who were present in the Hotel. He told the name of the Village Munsif also. But subsequently he changed and said that the deceased did not tell the name of the Village Munsif nor did he say that he was stabbed in the Hotel, and that was why the Village Munsif did not keep any watch over the Hotel. P.W. 6 is the sister of the deceased. She is a married woman. She stated that she had come to Narnur two days prior to the date of the offence and was put up with the deceased. On Sunday, when she was returning from the paddy field, the deceased had come to her house. A-2’s elder sister Achamma and another relation of A-2 Giddamma were abusing the deceased saying that when Tirupatamma, wife of A-1, was alone, the deceased went to molest her. Then the deceased was not in her house nor her mother was present. On the way when she was going to the paddy field, she met the deceased. She told him about the allegation in regard to molestation and chided him. But he however said that he did not go into her house but it was she who had called him into her house but he did not go. She however went on changing the reply which the deceased seemed to have given to her. She told him about the allegation in regard to molestation and chided him. But he however said that he did not go into her house but it was she who had called him into her house but he did not go. She however went on changing the reply which the deceased seemed to have given to her. She went on further to say that when she returned home after lamp lighting time, she told her mother that her brother had molested the wife of A-1 and that they were trying to beat him and that she will go in search of the deceased. The mother advised her to look after the deceased. Then she went to P.W. 8’s house where the deceased used to visit. P.W. 8 however informed her that the deceased had not come to her house on that day. A-1 and A-2 in the meanwhile came there. Seeing them the witness went behind the door and hid herself. Accused 1 and 2 asked P.W. 8 whether the deceased had come to her house and she stated ‘no’. They went away, saying that the deceased will be in the hotel. Thereupon the witness went to Peerla Chavadi to send word to the deceased to go away from the Hotel, but she could not find anybody to do so and was waiting there. People going that way were saying that the deceased was beaten by A-2 and stabbed by A-1 and that the deceased had run away and fallen in a paddy field. Then the witness went to P.W. 5 and told him about what had happened. Then P.W. 5, P.W. 6 and others went to the paddy field and found the deceased there. On a’ question put by P.W. 5, the deceased stated that when he was in P.W. 1’s hotel, A-1 and A-2 came there saying that he molested A-1’s wife and that they beat him and that he ran away and fell in the paddy field. In the cross-examination, she stated that after the incident., she did not go to Kottala. After the death of the deceased, the witness and her mother sold to Sanjamma the Jutka belonging to the deceased. She curiously stated that she did not inform her mother at the field about the deceased molesting A-1’s wife nor to any of her co-coolies, nor to her aunt. After the death of the deceased, the witness and her mother sold to Sanjamma the Jutka belonging to the deceased. She curiously stated that she did not inform her mother at the field about the deceased molesting A-1’s wife nor to any of her co-coolies, nor to her aunt. She stated that she had told the Police that after the deceased was removed from the field and was brought to the road P.W. 5 asked the deceased as to who beat him and that the deceased gave statement to the Village Munsif. Neither P.W. 5 nor P.W. 6 however asked the deceased as to how he happened to fall in the paddy field. On a careful reading of the evidence of P.Ws. 5 and 6, it would be evident that firstly they are the witnesses in regard to the dying declaration which the deceased had orally made to these witnesses. Although the learned Sessions Judge has placed reliance upon their evidence, we are not inclined to agree with him. The Sub-Inspector in his statement stated that P.W. 6 did not tell him anything about the oral or the written dying declaration of the injured. There is substantial difference between the versions given by P.W. 6 and P.W. 5 in regard to the dying declaration. P.W. 6 never referred to the fact that the deceased had told that A-1 stabbed the deceased and A-2 beat him with a stick. She merely stated that the deceased stated that they beat him and that he ran away and fell in the paddy field. P.W. 5 on the other hand stated that the deceased had stated that A-1 and A-2 came to him to the hotel saying that he tried to molest A-1’s wife and A-2 beat him and A-1 stabbed him that he ran away and was sitting on the bridge and fell into paddy field. Moreover, these two people did not refer about the oral dying declaration to anyone. We are therefore not prepared to believe their evidence in so far as the oral dying declaration is concerned. The next important witness is P.W. 8. P.W. 8 is the woman to whom the deceased was quite often going. She stated that before the incident, A-1 and A-2 lad gone to her to inquire whether the deceased had come to her. The next important witness is P.W. 8. P.W. 8 is the woman to whom the deceased was quite often going. She stated that before the incident, A-1 and A-2 lad gone to her to inquire whether the deceased had come to her. Quite contrary to the statement of P.W. 6 she stated that although she informed A-1 and A-2 that the deceased was not there, there was a boy who stated that the deceased was in P.W.1’s hotel. A-2 said to A-1 that they will go there and stab him there. They went towards the hotel. In cross-examination P.W. 8 stated that at lamp lighting time. P.W. 6 came to her. In so far as her statement that A-2 said to A-1 that they will go there and stab the deceased is concerned it being contrary to what P.W. 6 had stated, we are not prepared to believe that portion of her statement. Nevertheless we are prepared to hold that A-1 and A-2 had gone to P.W. 8 in search of the deceased and that P.W. 8 had told them that the deceased had not come to her that day. We may also agree that P.W. 6 might have gone to P.W. 8 to see whether the deceased was there or not. Beyond that it is not possible to believe this witness. The next line of evidence is provided by P.W. 13 and P.W. 14 which relates to the dying declaration (Exhibit P-13). P.W. 13, who is the Village Munsif, stated in his deposition that on 8th December, 1963 at 9 a.m. P.W. 5 came and told him that his brother Buddanna was killed by A-1 and A-2 and that the injured was brought to the chavadi. The witness thereupon went to the Chavadi. The deceased gave him a statement. He stated that the deceased was conscious. The witness wrote down the statement to the narration of the deceased. It was read over to him. He admitted its correctness and put his thumb mark. The witness however stated that although the deceased was literate but since he had fallen in the paddy field and his hand was shaking, he could not sign. He therefore put the thumb mark He identified Exhibit P-13. He stated that A. Kondareddy and Ramaswami were present. Ramaswami is one of the attestors, who is P.W. 14. The witness however stated that although the deceased was literate but since he had fallen in the paddy field and his hand was shaking, he could not sign. He therefore put the thumb mark He identified Exhibit P-13. He stated that A. Kondareddy and Ramaswami were present. Ramaswami is one of the attestors, who is P.W. 14. In the cross-examination he stated that the deceased had said that A-2 beat him on his legs twice. Every word in Exhibit P-13 was said by the deceased. He however stated that he did not put any questions to the deceased. Blood was not flowing from his injuries His palms were not bloodstained. The witness gave the deceased the pen to sign but he returned saying that he could not sign. He denied the suggestion that the deceased was unconscious when the thumb mark was obtained and then the statement was prepared. He also denied the suggestion that to avoid any case against the enemies of the deceased like Bazarappa, he wrote Exhibit P-13 implicating A-1 and A-2 falsely and that he is inimical with A-2. To the same effect is the evidence of P.W. 14. As stated supra he is one of the attestors. He also stated that the statement was recorded by the Village Munsif to the dictation of the deceased. He could not sign. That is why he put the thumb mark and the witness attested it and he identified Exhibit P-13. In the cross-examination he stated that his house is 1½ furlongs to the Village Munsif’s chavadi and that a talari came and called him and that he did not know as to why he was sent for. When he reached the chavadi, P.W. 13 was writing the statement. There was a crowd of about 100 persons there. The deceased was made to sit on a cot when he gave the statement. The deceased was not shivering nor had he any injury or pain in his hand. He admitted that there are many literate, educated and rich ryots between the chavadi and his house. The injury was not bleeding. He admitted that he had given evidence in regard to some will in another suit which was not believed. He denied the suggestion that he belonged to Chintareddy’s faction. He admitted that there are many literate, educated and rich ryots between the chavadi and his house. The injury was not bleeding. He admitted that he had given evidence in regard to some will in another suit which was not believed. He denied the suggestion that he belonged to Chintareddy’s faction. He denied the suggestion that Exhibit P-13 was written at the Village Munsif’s house and the deceased’s mark was obtained when he was unconscious. Upon a critical appreciation of the evidence of these two witnesses, we have no doubt that Exhibit P-13 was written by P.W. 13 to the dictation of the deceased and that at that time he was conscious. We do not find any strength in the contention that P.W. 13 is inimical to A-2 or that he fabricated the dying declaration after obtaining the thumb mark of the deceased when he was unconscious. It may be that the earlier evidence of P.W. 14 in another case was found unbelievable but that does not automatically make the present evidence unreliable. Another comment which was made upon this evidence was that the deceased could not have been conscious to give the statement. We do not however find any substance in this contention. The evidence of P.W. 9, P.W.10, P.W. 11 and P.W. 12 makes it abundantly plain that the deceased must have been conscious at the time when Exhibit P-13 was recorded. It is clear from Exhibit P-6, which is the wound certificate issued by Dr. Leelavathi, that the patient was conscious and was coherent in his talk and there was no bleeding from the ears, nose and mouth. The pupils were normal reacting to light. It may be that the certificate was actually issued on 15th December, 1963, but it is clear from the evidence of P.W. 9, Dr. Leelavathi, that it was P.W. 5 who had brought the deceased on 9th December, 1963 at 10-30-A.M. She stated in her evidence that he was conscious and coherent then. It is true that Exhibit P-7 dated 9th December, 1963 which was recorded at 2-30 a.m. shows that the patient was toxic and was talking incoherently. Leelavathi, that it was P.W. 5 who had brought the deceased on 9th December, 1963 at 10-30-A.M. She stated in her evidence that he was conscious and coherent then. It is true that Exhibit P-7 dated 9th December, 1963 which was recorded at 2-30 a.m. shows that the patient was toxic and was talking incoherently. There is nothing in the evidence of P.W. 10, who is the Civil Assistant Surgeon in the General Hospital, Kurnool and who had admitted Buddanna on 9th December, 1963 at 10-30 a.m. which would go against the evidence of P.W. 9, P.W. 11, it is true, gives somewhat inconsistent version during the examination-in-chief and the cross-examination. Nevertheless his evidence is clear to the extent that the patient should have been conscious at the time when Exhibit P-13 was recorded. P.W. 11 in his examination-in-chief stated that the deceased had a chest injury at the apex of the heart in the 5th intercostal space. He was semi-conscious, delirious restless and was not responding to questions. The said Doctor examined him on 8th December, 1963 at 3 a.m. He described the wound as a penetrating wound and stated that the patient was subsiding through the wound, that he operated and opened the wound and found the pleura punctured, pericardium was punctured at the apex of the heart, heart muscle was also punctured, and that blood clot was found over the injured muscle. There was 1½ pints of blood in the pleura cavity. It was removed. Blood clot was removed from the heart muscle and it was sutured. The pericardian cavity was washed. The condition of the patient was deteriorating and ultimately he expired at 10-25 A.M. on 9th December, 1963. He further stated that the injury to the heart was fatal. In the cross-examination he stated that immediately after the injury, he must have had primary shock and continued as long as the haemorrhage was there. Immediately thereafter permission was granted to the Public Prosecutor to question the witness and he stated referring to Exhibits P-9 and P-10 that bleeding only causes shock. Immediately when the deceased received this injury he may be conscious and gradually lose the consciousness. He could have walked and talked immediately after the receipt of the injury. Immediately thereafter permission was granted to the Public Prosecutor to question the witness and he stated referring to Exhibits P-9 and P-10 that bleeding only causes shock. Immediately when the deceased received this injury he may be conscious and gradually lose the consciousness. He could have walked and talked immediately after the receipt of the injury. In further cross-examination, he said that it should cause an instantaneous primary shock soon after the injury was received to the heart and the shock would have continued till the stoppage of bleeding by a clot forming. Primary shock would have been cured if the patient has not lost huge quantity of blood and if the bleeding was arrested by clot formation. Re-examination was again at this stage permitted and in reply to question he stated that primary shock depends on how much blood the patient loses and that immediately after the receipt of the injury he may or may not get a shock. P.W. 12 is Dr. Sarojini who had conducted the autopsy. During post-mortem she found two external injuries and two internal injuries mentioned in Exhibit P-2, the autopsy certificate which she had issued. As she had not seen the original wounds, it was not possible for her to say which internal injury corresponded to what external injury. She however stated that the stomach did not contain any partially digested food. In her opinion, external injury No. 2 could be caused by any blunt instrument like a stone or a stick and opined that the deceased would appeal to have died of haemorrhage and injury to heart. Injury No. 2 was simple and not fatal. She also opined that even after the injury to heart, it is possible to talk and walk. She found lot of haemorrhage in this case. Upon a careful examination of this medical evidence, it cannot be said that it in any manner contradicts what P.Ws. 13 and 14 had stated. It is clear from their evidence that the patient might have had consciousness to give the statement as was told by P.Ws. 13, 14, 15. We are therefore satisfied that Exhibit P-13 is a dying declaration given by the deceased and that he was conscious at the time, that it was correctly recorded by P.W. 13 and was attested by P.W. 14. It does not suffer from any infirmity. 13, 14, 15. We are therefore satisfied that Exhibit P-13 is a dying declaration given by the deceased and that he was conscious at the time, that it was correctly recorded by P.W. 13 and was attested by P.W. 14. It does not suffer from any infirmity. We have already discussed while considering Exhibit P-13 the evidence of the medical officers. As stated supra, P.Ws. 9 to 12 are the medical officers who dealt with the case at some stage or other. It is clear from their evidence that the deceased died of injury No. 1 and did not die a natural death. Their evidence conclusively proves that the deceased had died because of the said wound. Their evidence therefore can be taken to corroborate the evidence of P.W. 1. It is not necessary to deal with the other evidence as nothing turns upon that evidence. It mainly consists of the investigating personnel. On an appreciation of the above said evidence, we have no doubt that A-1 stabbed the deceased in the hotel, that the deceased ran from the hotel and was chased for some time by A-1 and A-2, that he went and sat on the bridge and thereafter fell down. We also are of opinion that he gave a dying declaration which was reduced into writing by P.W. 13 and was attested by P.W. 14 (Exhibit P-13) and we are satisfied that the deceased died because of the injury to the heart. A-1 therefore can easily be connected upon the evidence of P.W. 1, P.Ws. 13 and 14 and the medical evidence with the murder of the deceased. In regard to the motive also, we are clear that the evidence of P.W. 6 establishes that because the deceased had earlier the same day attempted to molest the wife of A-1. A-1 who was armed with a knife went and deliberately stabbed the deceased at the hotel. In so far as A-2 is concerned, the evidence of P.W. 1 is only this that A-2 gave one blow on the head of the deceased and another blow on his right hand. According to the medical opinion, both these blows did not result in any severe injuries. They were simple injuries. A-2 could be convicted along with A-1 for murdering the deceased as was done by the learned Sessions Judge only (with the application of section 34. According to the medical opinion, both these blows did not result in any severe injuries. They were simple injuries. A-2 could be convicted along with A-1 for murdering the deceased as was done by the learned Sessions Judge only (with the application of section 34. Indian Penal Code): It is now however well settled that in order to attract section 34. Indian Penal Code, there must be prior meeting of minds. It is of course true that it cannot mean that there must have been considerable interval between the formation of common intention and the commission of the offence. It may be formulated shortly or immediately before the commission of the crime. It is of course not necessary to prove the prior concert by any direct evidence. It can be inferred from the surrounding circumstances and the conduct of the parties. The distinction which exists between the same or similar intention must not however in any case be overlooked. “Same intention” to make out “common intention” should be clearly indicated by words or acts between the different accused who are said to have shared it. It may be that on being told by somebody on the return of A-1 and A-2 from the field as to what had happened that the deceased came and attempted to molest A-1’s wife and that both of them being closely related to each other might have started with either the same intention or similar intention or their intentions might be quite different from each other. It may be possible that A-1 wanted to stab the deceased because he subsequently got armed with a knife and A-2 might have liked only to chastise or give a beating to the deceased. Except the fact that both these accused started from their house, went to P.W. 8 and on being told by a boy that the deceased was at the hotel, they reached the hotel, that A-1 took out the dagger from his pocket which was hidden and stabbed the deceased while A-2 gave two blows to the deceased, there is no direct evidence about their concert or about their common intention. From the conduct of the accused as stated and the surrounding circumstances it is not possible to hold that A-2 also wanted to kill the deceased. He was armed only with a stick and was not aware that A-1 was armed with a knife. From the conduct of the accused as stated and the surrounding circumstances it is not possible to hold that A-2 also wanted to kill the deceased. He was armed only with a stick and was not aware that A-1 was armed with a knife. The way in which he hit the deceased and the result which it produced clearly indicate that A-2 never shared the intention of A-1. It cannot therefore be said that there was any common intention to kill the deceased between A-1 and A-2. Section 34, Indian Penal Code, therefore cannot be said to be applicable to the facts of the present case. A-2 consequently cannot be held guilty under section 302 read with section 34, Indian Penal Code. He can be convicted only under section 323, Indian Penal Code. It was contended by Mr. Ayyapu Reddy that in view of the provocation offered by the deceased, inasmuch as he attempted to molest his wife hearing the news of which the accused immediately started in search of the deceased and finding that he was not in P.W. 8’s house where he used to be often, and on being told that he was at the hotel, A-1 went and stabbed him, his case, therefore, according to the learned Advocate, comes within the ambit of Exception 1 to section 300, Indian Penal Code. We find it difficult to accept this contention. In order that Exception 1 to section 300, Indian Penal Code may apply, there must exist the following four things. Firstly, there must be provocation; secondly, the provocation must be grave and sudden; thirdly, by reason of such grave and sudden provocation the accused must have been deprived of his power of self-control; and finally the death of the person who had given the provocation must have been caused or of any other person by mistake or accident. It is clear that the provocation has to be not only sudden but grave and the gravity of the provocation is to be judged by the fact whether or not the offender was deprived of the power of self-control. It is clear that the provocation has to be not only sudden but grave and the gravity of the provocation is to be judged by the fact whether or not the offender was deprived of the power of self-control. In order to find out whether the provocation is grave and sudden the test which usually applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In this case, it is undoubtedly true that the deceased tried to molest A-1’s wife and when he (A-1) was told about it, it must have provided a grave provocation to A-1. It is not in our view necessary that the provocation must be within the hearing or sight of the offender. If a person is told about the molestation of his wife or any attempt to do so, it would constitute a grave provocation. But, as stated supra, merely because there was grave provocation the accused would not be entitled to take advantage of Exception 1. We have already stated that the provocation in order to attract Exception I must be sudden as well as grave. If, in view of the circumstances of the case, there was sufficient time to what is called ‘cooling off’ then it cannot be said that the provocation was sudden although it may be grave. There are two things in considering such a situation to which the law attaches great importance. The first of them is whether there was what is called ‘time for cooling off’, that is, for passion to cool and for reason to regain dominion over the mind. That is why most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an implement already in the hand, perhaps being used or being picked up, where there has been no time for reflection. Secondly, in considering whether provocation has or had not been made, one must consider the retaliation in provocation, that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been giver . Secondly, in considering whether provocation has or had not been made, one must consider the retaliation in provocation, that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been giver . As is often said, fists might be answered with fists, but not with a deadly weapon and that is a factor one has to bear in mind when one is considering the question of provocation. In other words, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to man-slaughter. It is thus plain that the accused must not have had time to reflect, deliberate or cool between the provocation and the mortal stroke which he had inflicted upon the deceased. Between the provocation and the mortal stroke there must not be sufficient time for the passion caused by the provocation to cool down and reason to reassert its control. Even in a case where the deceased was not in the presence of the accused who was gravely provoked and where the accused goes a few steps and then strikes the deceased, he can, it is no doubt true, take advantage of Exception 1. But it depends on the facts and circumstances of each case to find out whether the grave provocation was also a sudden and that there was no time lag between the provocation and the mortal stroke. The immediate object of such inquiry is to see whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal stroke given; for if, from any circumstances wherever, it appears that the party reflected, deliberated, or cooled any time before the fatal stroke is given or if, in legal presumption there was time or opportunity for cooling, the killing will amount to murder, as being attributable to malice and revenge rather than to human frailty. Viewed in this light, it cannot be said that there was no time lag between the time when A-1 got the information for his wife or from some others which is not very clear and the mortal stroke which he had given to the deceased. Viewed in this light, it cannot be said that there was no time lag between the time when A-1 got the information for his wife or from some others which is not very clear and the mortal stroke which he had given to the deceased. First of all it is not clear from the evidence as to at what time and by whom A-1 was told about the attempted molestation of his wife. Some witnesses say lamp lighting time and some give a different story. It is difficult to presume, in the absence of any evidence, that immediately after he got the information he started in search of the deceased. It may be true that information was received from a reliable person and was believed to be credible as to the existence of a provoking act and yet if he had sufficient opportunity to reflect or deliberate, then it cannot be said that he was acting under grave and sudden provocation. It is also not clear whether he collected the weapon or it was already with him. Moreover he goes to P.W. 8 in search of the deceased and on being told there that the deceased was in the hotel, he proceeded to the hotel which is admittedly at the outskirts of village. There was therefore sufficient opportunity for him to deliberate or reflect. In such circumstances, we do not think that A-1 cannot take advantage of Exception I. The learned Advocate relied upon a decision of the Mysore High Court in In re L. Appayya Naik1. That case however can easily be distinguished from the facts of this case. There, the provocation was grave and as the deceased was in the view of the accused, the accused attacked him then and there. In those circumstances, the benefit of Exception 1 to section 300, Indian Penal Code was given holding that in view of the facts of that case, there was grave and sudden provocation. That is however not the case here. It must be remembered that when an accused person wants to take the benefit of one of the exceptions to section 300, Indian Penal Code, he has not only to state his case with clarity but has also to establish it. That is however not the case here. It must be remembered that when an accused person wants to take the benefit of one of the exceptions to section 300, Indian Penal Code, he has not only to state his case with clarity but has also to establish it. In this case, the 1st accused neither pleaded that he is entitled to Exception 1 nor adduced any evidence to point out under what circumstances he is entitled to get the benefit of Exception 1. It is true that merely because the accused did not disclose the circumstances before the trial Court or that he did not specifically plead that he is entitled to the benefit of Exception 1, it would not be sufficient by itself to dismiss that plea. As stated supra it is true, if the evidence for the prosecution and the circumstances of the case show the existence of certain facts which the accused can take advantage of, he would be certainly entitled to do so. Unfortunately in the present case, the facts found and the circumstances of the case as disclosed do not, in our view, permit the case to be brought within the ambit of Exception 1 to section 300, India Penal Code. Since no other argument was advanced, we are clearly of the opinion that the 1st accused is guilty under section 302, Indian Penal Code of murdering the deceased. In view of the circumstances of the case, he has been rightly given the lighter punishment of imprisonment for life and we do not see any valid reason to interfere with the said conviction and sentence of A-1. In so far as A-2 is concerned, we hold that he is guilty only under section 323, Indian Penal Code, and sentence him to rigorous imprisonment for six months. If he has already served that term, he shall immediately be released unless he is involved in any other case. We therefore allow the appeal in so far as A-2 is concerned and modify the sentence as stated above. We reject the appeal in so far as A-1 is concerned. G.S.M. ----- A-2’s appeal allowed; sentence on A-2 reduced. Appeal of A-1 dismissed.