Y.V. Chandrachud, C.J.
1. There is clear and incontrovertible evidence showing that the relations between the deceased Dinkar Vithoba Hargude and the accused were strained on account of a land dispute. Then we have the evidence of three eye witnesses Dnyanoba, Drupada and Babu Hargude who have stated consistently except for certain minor contradiction which the learned Additional Sessions Judge has considered, that accused No. 1 Rau gave a sword-stick injury on Dinkar's chest Information regarding the offence was given promptly by the brother of the deceased to the Police Patil who prepared a khabari report and took it to the Police Station. The First Information Report was thereafter recorded at the Police Station without any undue delay. It contains a near-full narration of the incident with its major details.
2. There is further evidence that the weapon of offence was discovered after the arrest of accused No. 1 in pursuances of a statement made by him during the course of investigation. The two panchas in whose presence the sword-stick was discovered have not whole-heartedly supported the discovery which is good reason for the argument that the evidence in regard to the discovery of the weapon be left out of consideration.
3. We find it impossible to accept the version of accused No. 1 that the deceased was himself carrying the sword-stick, that he (accused No. 1) tried to prevent the deceased from assaulting him with that sword-stick and that the injury was caused to the deceased accidentally during the scuffle. The circumstances of the case and the nature of the injury falsify that defence.
4. Though the complicity of accused No. 1 in the commission of the offence is proved beyond a reasonable doubt, the same cannot be said in regard to the part alleged to have been played by accused No. 2. According to Drupada, accused No. 2 had held the deceased by his chest. The evidence of Dr. Banerjee who performed the post-mortem examination shows that the deceased had received an injury on the right side of his chest, just below the right nipple. If accused No. 2, were to hold the deceased by his chest, it is not possible that accused No. 1 could hit the deceased on his chest without, in that process, causing any injury to accused No. 2. The evidence of the eye witnesses shows significantly that accused No. 2 was; neither asked by accused No, 1 to hold the deceased nor in any other manner to facilitate the commission of the murder. It is common ground that no words of exhortation passed between the two accused. We are therefore inclined to give to accused No. 2 the benefit of doubt.
5. On the question relating to the nature of the offence committed by accused No. 1, we find it difficult to accept his counsel's submission that the offence falls under Section 304 Part II of the Penal Code. The blade of the sword-stick is 2 feet in length. Accused No. 1 hit the deceased on a vital Part of Ms body, the chest, with such force as to impair the liver and the aorta. The offence, therefore, is plainly one of murder.
6. For these reasons we confirm the order of conviction and sentence of accused No. 1 but set aside the same in so far as accused No. 2 is concerned. Accused No. 2 is acquitted and shall be released forthwith.