JUDGMENT

BHAGWATI, J.:—The appellant and four other accused were tried by the Sessions Judge, Tirunelveli on various offences on the allegation that they formed an unlawful assembly with the common object of causing the death of Sudalaikannu Nadar (hereinafter referred as the deceased) and in pursuance of this common object, the appellant committed the murder of the deceased by inflicting a blow with a short spear M.O. 1, commonly used for killing rats. The learned Sessions Judge acquitted the appellant as well as the four accused, but, on appeal by the State, their acquittal was reversed and the appellant was convicted for the offence under Section 302 and sentenced to suffer imprisonment for life, while, out of the other four accused, accused No.2 was convicted of the offence under Section 147 and sentenced to pay a 1134 fine of Rs.100/-, or in default of payment of fine, to suffer simple imprisonment for one month and accused Nos. 3 to 5 were convicted of the offence under Section 148 and each of them were sentenced to pay a fine of Rs.150/- or in default to suffer simple imprisonment for six weeks. Since the acquittal of the appellant was reversed and he was convicted and sentenced to suffer imprisonment for life, he was entitled to prefer an appeal to this Court under Section 2 (a) of the SC (Englargement of Criminal Appellate Jurisdiction) Act, 1970 and he accordingly preferred the present appeal to this Court.

2. The incident out of which the present appeal arises took place on 18th September, 1969 in a village Alagiavilai. There was a festival in this village during a period of two or three days immediately prior to the date of the incident in the temple of Muthumariamman and for celebrating this festival a subscription of Rs.35/- per familyy was collected from the residents of the villages. It appears that PW 3, a younger brother of the deceased, was unable to pay the amount of the subscription due from him and he, therefore, pledged a brass vessel in favour of the organisers of the festival. The festival was celebrated by arranging various performances and amongst those who were called for giving the performances were one piper and one troupe called Villupattu troupe. The festival being over, some of the organisers gathered together under a tamarind tree at about 3.30 p.m. on 18th September, 1969 for the purpose of disbursing monies to the various performing artistes and finalising the accounts. Those present included the appellant and the four accused, one Pauldurai, one Swarnalingam, one Sivalinga Nadar, P.W. 3 and P.W. 8. The piper was paid Rs.5/- more than the stipulated charge while the Villupattu troupe was paid Rs.5/- less than what was agreed with them. P. W. 3 protested against this inequitous differentiation and insisted that Villupattu troupe should be paid the stipulated charge. The second accused at once taunted PW 3 by saying: "You are a man who has no means to pay the subscription. What right have you to enter a protest?" This remark angered PW 3 and he beat the second accused. The second accused, Pauldurai and Swarnalingam retaliated by beating PW 3, on which PW 3 raised an alarm. The deceased was at that time taking food in his house which was on the eastern side of the pathway leading to the house of PW 1 and on hearing the alarm of his brother. PW 3, he rushed to his rescue with a knife M. O. 3 in his hand. Pauldurai and Swarnaligam caught hold of the deceased, but the deceased gave knife blows and both Pauldurai and Swarnalingam sustained injuries on their hands. So far there was no dispute between the prosecution and the defence and both parties accepted that this is in fact what happened. But from this point onwards there was divergence between them.

3. Now, accused Nos. 2 to 4 are brothers, the appellant, Pauldurai and Swarnalingam are sons of the brothers of accused Nos. 2 to 4, while the 5th accused is the son of the sister of accused Nos. 2 to 4. The prosecution case was that on account of the