JUDGMENT

GOSWAMI, J.:— This appeal by special leave is directed against the judgment and order of the High Court of Madras convicting the appellant (hereinafter to be described as the accused) under Sec. 302, I.P.C. and sentencing him to death.

2. The police had submitted charge-sheet under Section 302/34, I.P.C. against the present accused and accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and Thamizharasan alias Ramaswami, who was shown as an absconder. On the prayer of the prosecution the case against the first two accused, without the absconding accused, was taken up for trial. The two accused were charged under Section 120B read with Section 302 and 109. I.P.C. as well as under Section 302/34, I.P.C. The case was referred to the High Court as usual and the accused also preferred appeals against their conviction and sentence.

3. The High Court acquitted accused Jabamani Nadar alias Kanyakumari Comrade alias Ramn and accepted the reference in respect of the present accused. His appeal was also 384 dismissed. Hence this appeal by special leave.

4. The facts are in a brief compass. The deceased, Viswanatham Pillai, was the village Munsif (Headman). On April 26, 1971, at about 10.00 P.M. he was sleeping on a bench outside his cattle-shed in the open space, which is shown in the site plan (Ex. P15) at No.9. The younger brother of the deceased, Pandurangam (PW 4), who is a leper, was also sleeping on the eastern parapet of the sluice of the north Boothagudi channel, which is shown at No.5 in the site plan (Ex. P15). Pandurangam woke up at about 11.15 P.M. on hearing the shout of his deceased brother crying "younger brother" : Karunakaran is running after stabbing me with knife. Catch him ". He got up and saw the accused Karunakaran running on the eastern bank of the channel with a knife 8 inches long. The electric lights were burning in the vicinity. He also saw two persons running ahead of accused Karunakaran. He further saw his two brothers, Gnanasekaran (PW 1) and Thiru-gnanasambandam (PW 3) along with Ramaswamy (PW 2) chasing them. He ran to his elder brother who came from the side of the bench where he was sleeping and who fell down on the southern side of the sluice. When he went near him he was already dead. He had bleeding injuries on several parts of his body. A crowd gathered and Pandurangam was asked to lodge information at the police station which he did. The doctor (PW 16) who held the post-mortem examination found nine injuries, two of which he described as incised and four as punctured incised, two more as punctured and the remaining one as a vertical incised wound. These were on the left upper arm, left forearm, on the left side of the epigastrium, on the left side of the anterior axillary line, on the left mid-axillary line, on the right side of the epigastrium and on the left side of the back. Injuries were very severe and according to the doctor death was due to shock and hemorrhage on account of the injuries.

5. It is clear that whosoever had inflicted these injuries definitely had the intention to cause the death of the victim.

6. In the first information report which PW 4 lodged at the Thana, which is very close to the place of occurrence, within about 15 minutes of the occurrence, inter alia, stated thus :

"At about 11.15 P.M. I woke up on hearing a noise to the effect younger brother, Karanukaran is running after stabbing me with knife, catch him . I stood up and saw Karunakaran, son of Orathur Ayyathurai Padayachi running eastwards from the place where I lay and my elder brother chasing him from behind. I too came running".

7. It will be seen that at the time of lodging of the first information report only the present accused was implicated. Even so, later on four eye-witnesses were produced implicating not only the present accused but also two other accused. The High Court after appreciating the entire evidence rejected the evidence of these eye-witnesses, namely, PWs 1, 2, 3, and 5 and the des