DOMINIC VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an appeal by special leave from the judgment dated 19 September, 1968 of the High Court of Kerala setting aside the order of acquittal passed by the Sessions Court on 17 July, 1967 and convicting the appellant under Section 304, Part II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years.

(2.) The appellant was charged under Section 302. Indian Penal Code for having murdered his elder brother on 20 March, 1967. The prosecution case was as follows. There was exchange of words between the appellant George and his elder brother Dominic in the course of which George drew out dagger from his waist and Dominic bent down to pick up a stone. Before Dominic could rise after picking up the stone. George rushed towards Dominic and stabbed him with the knife. The stab was warded off by Dominic. George again stabbed Dominic on the left thigh causing an incised gaping wound off the upper third of the left thigh. Immediately thereafter George ran away. Dominic was taken to the Government dispensary and on the way he died.

(3.) There were three eye-witnesses. Of them two turned hostile. P. W. 3 Thomas Mathai the third eyewitness was the family lawyer and friend of both the brothers George and Dominic. The trial Court found Mathai to be an independent and respectable witness. His evidence was that he had not seen George drawing out the knife. His attempt to pacify both the elder brother and the appellant was in vain. When the quarrel assumed an aggravated form Mathai intervened and separated both Dominic and George. Dominic then was removed a little towards east and George towards west George who was behind Mathai suddenly passed him by his side with a knife and stabbed Dominic. The evidence of Mathai was that when he saw George passing by his side with the knife. Dominic was stooping down. According to Mathai these acts of George and Dominic were simultaneous.