Judgment

DUA, J. :- The five appellants in this appeal by special leave were tried in the court of the Additional Sessions Judge, Tirunelveli for offences under Ss. 147, 148, 302 and 302 read with S. 149, I.P.C. Accused Nos. 1 and 4 were sentenced to death under S. 302, I.P.C. the injuries inflicted by them on the deceased having been held to be fatal whereas accused nos. 2 and 3 were sentenced to imprisonment for life the injuries caused by them to the deceased being simple but with the common intention of causing his death. Accused No. 5 was sentenced to rigorous imprisonment for ten years under S. 149 read with S. 302, I.P.C. because he had only instigated his associates to kill the deceased. Accused Nos. 1 to 4 were not awarded any separate sentence under S. 148, I.P.C. and accused No. 5 was similarly not awarded any sentence under S. 147, I.P.C.

2. The High Court on appeal confirmed the conviction and sentences of accused nos. 1 to 4 but so far as accused no. 5 is concerned his conviction was altered to one under S. 326, I.P.C. read with S. 149, I.P.C. but the sentence of rigorous imprisonment for ten years was maintained. His conviction under S. 147, I.P.C. was also confirmed but no separate sentence was awarded.

3. In this Court Shri R. K. Garg has addressed elaborate arguments in support of the appeal and has assailed the conclusions of the High Court holding the appellants guilty of the offences for which they have been convicted and sentenced.

4. Before broadly stating the prosecution story the relationship of the accused persons inter se may be noticed. Accused nos. 1 to 3 are brothers and accused no. 5 is their paternal uncle and married to the sister of accused no. 4. They are all residents of village Adhanoor. About 4 or 5 years earlier the deceased Mottayan had caused injuries to accused no. 2. The deceased and P.W. 1 who are children of the same mother from different fathers were tried for those injuries but acquitted. Previously the deceased also used to live in village Adhanoor. After the aforesaid occurrence he started living in his sister s house in village Melaseithalai. About three months prior to the present occurrence, however, he returned to Adhanoor village and again settled down there with his family. About ten days prior to the present occurrence there was a quarrel between Ramaiah (P.W. 5) and Krishna Thevar, accused no. 4 in connection with a ridge in a dry land. In this quarrel all the five accused were armed with aruvals. On behalf of P.W. 5, the deceased Mottayan also armed himself with an aruval. At the intervention of some mediators, however, the trouble was averted, but all the five accused are stated to have threatened that they would do away with the deceased. On January 28, 1970 at about 8.45 a.m. the deceased and Kookkiah Thevar (P.W. 1) after taking their food proceeded to the dry land of the deceased which was situated to the south of Adhanoor village. Their object was to harvest the kambu crop. P.W. 1 was following the deceased at a distance of about half a furlong. After proceeding for some distance when they reached the junction of the footpath and the cart track running west to east to the south-west of the dry land of Dorairaj P.W. 2 the five appellants began to chase the deceased. Accused nos. 1 to 4 were armed with bill-hooks. Seeing them the deceased called out "brother brother" and ran towards north of the lands of P.W. 2. Accused no. 5 instigated his companions to cut the deceased. Soon thereafter accused no. 2 (Mookkiah Thevar) obstructed the deceased and Duraipandi Thevar, accused no. 1, gave him a cut on his head with a bill-hook. Accused no. 2 gave the deceased from behind another injury on his right shoulder. The deceased raised alarm and turned towards the left and ran for about 4 or 5 bhagams. P.W. 2 who was baling out water from his well, and his brother Paulraj (P.W. 3) who was irrigating the said water, witnessed this occurrence and appealed to the accused not to cut th