1. The appellant has been convicted and sentenced to imprisonment for life under S.302 IPC for causing murder of the deceased Abdullakunhi by giving a stabbing blow on his abdomen from his back side on 20-4-1991 at 10 a.m. The accused after giving the blow ran away from the place of occurrence with the knife in his hand and though one Ashok Kumar, who chased to catch hold of him, could not catch hold and gave the first information report at the police station, the said Ashok Kumar has not been examined. The injured was taken to the hospital and at the hospital he succumbed to the injury. The investigating agency started investigation on the basis of the report given by Ashok Kumar and on completion of investigation filed the charge sheet. On being committed, the accused stood his trial. The prosecution examined 17 witnesses in all, of whom PWs 1 and 2 are the two eyewitnesses of the occurrence. PWs 3 and 4 also heard the shouting of the deceased and saw the accused running away from the place of occurrence with a knife in his hand. On the basis of the medical evidence, the prosecution has been able to establish beyond reasonable doubt that the deceased met a homicidal death. The said conclusion is not assailed before us. The learned Sessions Judge relying upon the oral testimony of PWs 1 and 2 as well as the corroboration of PWs 3 and 4 came to the conclusion that the prosecution case that the accused gave the stabbing blow from the back side on the deceased on account of which the deceased died has been proved beyond reasonable doubt and convicted and sentenced him to imprisonment, as already stated. On appeal being carried, the High Court of Kerala has affirmed the conviction and sentence and hence the present appeal.

2. The learned counsel for the appellant vehemently contended that the evidence of the two eyewitnesses PWs 1 and 2 cannot be held to be a trustworthy one, and therefore could not have been relied upon by the two courts of fact. She also contended that the non examination of Ashok Kumar, who could have been a vital witness to unfold the prosecution case, is fatal to the prosecution and the accused is entitled to benefit of doubt on that score. Lastly, the counsel argued that even if the prosecution case is believed, then the offence would not be one under S.302 inasmuch as the accused, who was on friendly terms with the deceased till asking for a glass of juice, suddenly gave one blow and that was from the back side which, of course, ultimately became fatal. The learned counsel for the State, on the other hand, contended that even if Ashok Kumar has not been examined in the case but the oral evidence of PWs 1 and 2 cannot be brushed aside lightly and the two courts having believed the same, the conviction is well maintainable. According to the learned counsel for the State, the accused and the deceased belonged to rival unions and possibly on account of that rivalry the accused has committed the murder of the deceased.

3. Having examined the rival contentions and on scrutinising the two judgments and the evidence of the two eyewitnesses, though we agree with the submission of the learned counsel for the appellant that examination of Ashok Kumar could have unfolded the prosecution case in detail but the impugned judgment of the High Court indicates the reasons as to why Ashok Kumar could not be examined, even though he was to be examined by the Court itself as Witness 1, and according to the impugned judgment, the whereabouts of the said Ashok Kumar could not be found out for which he could not be examined. In this view of the matter, the entire prosecution case cannot be falsified for non examination of Ashok Kumar. To appreciate the contention as to whether the evidence of PWs 1 and 2 can be believed or not, we have been taken through the same by the learned counsel for the appellant. Nothing has been pointed out also in the cross examination to impeach their testimony and therefore, in our view the two courts were fully justified in relying upon the testimony of the aforesaid two eyewitnesses, who saw the accused giving the stabbing blow on the deceased by means of a knife from the back side, PWs 3 and 4 also corroborate the same. The next question that arises for consideration is whether in the facts and circumstances of the case, as indicated in the testimony of the aforesaid eyewitnesses, the accused can be convicted for the offence of murder under S.302 or could be convicted only under S.304 Part II inasmuch as there was absolutely no intention on his part to cause the murder of the deceased. From the evidence of PW 1 it appears that both the accused and the deceased were in a friendly mood when one asked for a glass of juice from the other. Shortly thereafter while the deceased had left the shop of PW 1, the accused went behind and gave the blow in question and further, the blow in question had been given from the back side and only a single blow had been given. In these circumstances, it is difficult for us to hold that the accused can be said to have had the necessary intention for causing the murder of the deceased while giving the blow in question, though ultimately the blow had become fatal. We, therefore, set aside the conviction of the appellant under S.302 and convict him under S.304 Part II and sentence him to imprisonment for 5 years. The appeal is allowed. The accused appellant is in jail. We are not sure as to the period he has already undergone. The jail authorities will find it out, and if the appellant has undergone the period of 5 years then the appellant be set at liberty forthwith, unless required in any other case.