Decided on November 02,1954



- (1.) This is an appeal against the judgment of the Sessions Judge of Anantapur convicting the appellants under S. 304, part Penal Code, and sentencing them to rivorous imprisonment for 7 years each.
(2.) The appellants and two others were charged with the murder of one Pasulodu who was no other than the brother of the first accused. Accused 1 and 4 were acquitted as their participation had not been proved beyond reasonable doubt, while accused 2 and 3 (who are the appellants) have been convicted and setnenced as stated above.
(3.) The prosecution case may be briefly stated: P. W. 1, the deceased and the first accused constituted members of a joint family. the deceased and P. W. 1 migrated to Mysore State to eke out their livelihood. P. W. 1 returned to the village two years before the occurrence, while the deceased came back a few months before. The deceased and P. W. 1 made a joint demand on the first accused for division and separate possession of their share. The first accused having refused to do so, there were incessant quarrels between the brothers and two days before the crime was committed, there was a fight between the first accused and the deceased, in the course of which the first accused received a serious injury on his hand, which disabled him from moving about for a few days. The second accused is the son of the first accused, the third accused being the father-in-law of the second accused, and the fourth accused, a nephew of the third accused.On the night of 23-4-1953, the deceased and P. W. 1 were sleeping on the pial of their house. At about midnight, P. W. 1 heard a noise of groaning emanating from a person who was throttled. He woke up to see Pasulodu being carried by the four accused, all of them were armed with deadly weapons. Immediately, he cried out "Abba, they are carrying away my brother". Pasulodu was carried on to Pasuvula Manda (cattle-pen) behind the house of P. W. 1. P. W. 1 followed them from behind and stood at a distance of 6 or 7 yards. They threw down Pasulodu at the cattle-pen and the four accused attacked Pasulodu with the weapons which they had in their hands. They then carried the injured man to the burial ground and left him there.Next morning the deceased was found by P. Ws. 1 to 5 and 7 there. On the advice of P. Ws. 8 and 9 P. W. 1 went to the house of the Village Munisif (P. W. 13) and brought him to the scene. A complaint Ex. P. 1 was given by P. W. 1 (though it purports to embody the dying declaration made by Pasulodu). On the basis of this, reports were sent to the authorities concerned. On receipt of these reports the police of Singanamala station arrived at the village at about 4 P. M. and started investigation. That night the injured man was sent to the Headquarters hospital at Anantapur. On the morning of the 25th, the Doctor (P. W. 12) having regard to the grave condition of Pasulodu, sent for the Magistraste (P. W. 10) who came to the hospital at about 10-55 A. M. and recorded the dying declaration (Ex. P. 4) which is in the following words: "I live in Neelampalli. I was lying on the pial in front of my house on the night of day before yesterday. At midnight four people came and carried me into the vanka -- (1) Siddappas son Yerri Nagappa, (2) Yerri Nagappas son Rushingappa. (3) Sudodu alias Subayya,;

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