Judgment

CHINNAPPA REDDY, J.:- P. S. R. Sadhanantham and four others were tried by the learned Sessions Judge, Tirunelveli, on various counts. Sadhanantham (A1) was convicted under Sections 148 and 302, Indian Penal Code while the four others were convicted under Sections 147, 323 and 149 read with S. 323. The first accused was sentenced to imprisonment for life on the charge of murder and to rigorous imprisonment for a period of two years on the charges under Section 148. The others were sentenced to suffer imprisonment for a period of one year on each of the counts on which they were convicted, the sentences to run concurrently. All the five accused preferred an appeal to the High Court of Madras. The High Court allowed the appeal and acquitted all the accused of all the charges. Arunachalam the brother of the deceased has preferred this appeal against the judgment of the Madras High Court after obtaining special leave from this Court on 26-7-1973. The special leave was granted against the first accused Sadhanantham only.

2. The case of the prosecution, briefly, was that there was enmity between the deceased Soundarapandian and his brother Arunachalam (P. W. 2) and Natesan (P. W. 3) on one side and Rajapalavasmuthu Nadar, his sons A-1 and A-2 and his nephews A-4 and A-5 on the other. There were the usual disputes arising out of elections to the Gram Panchayat and to the local co-operative stroes. In connection with the village Amman festival, (P. W. 3) was arranging to have a dance performance on the night of 20th August, 1970, in the Gandhi Maidan About a week earlier, Sadhanantham, the first accused demanded that the dance should be performed under his presidentship but P. W. 3 did not agree. On the night of 20th August, 1970, P. W. 3 along with one Gopalakrishnan (P. W. 6) was decorating the stage. Tube lights were burning and several persons had gathered in front of the stage. At about 8.45 p. m. accused 1 to 5 came there and got up on the stage. A-1 questioned P. W. 3 how be dared to conduct the show without his presiding over it. P. W. 3 replied that the dance performance would be conducted without the presidentship of A-1. A-1 then slapped P. W. 3 on the cheek. A-2 to A-4 also started beating P. W. 3 with their hands. P. W. 6 and several others who were there ran away apparently not wanting to get involved in the fracas. P. W. 3 jumped down from the stage and attempted to run away when A3 caught him and began to throttle his neck. A1, A2 and A4 joined in beating him with their hands. The deceased P. W. 1 P. W. 2 and P. W. 5 came running towards P. W. 3. The deceased asked the first accused why they were beating his younger brother. A3 and A5 who were holding P. W. 3 by the neck let him free. A.1 asked the deceased who he was to question him and saying so he took out a knife from his waist and stabbed the deceased on the left flank. The deceased fell down dead shouting stabbed, stabbed. Accused 1 to 5 then ran towards the north. P. W. 3 chased them over a distance of about one and half furlongs. They ran inside the forest. P. W. 3 stopped chasing them further. In the meanwhile the injured Soundarapandian was taken by P. Ws. 1, 2 and 5 to the Police Station and then to the hospital at Kayalpattinam. At the police station, the writer P. W. 14 recorded a statement Exhibit P-1 from Soundarapandian at 9-15 p. m. Soundarapandian when asked to sign the statement insisted on signing the statement after dipping the pen in the blood that was coming out of the wound. He was taken to the hospital in a jeep requisitioned by the police. P. W. 4 the Medical Officer in charge of the Hospital examined the injured and found that the injury was of a serious nature. He sent the injured to the Government Headquarters Hospital at Tuticorin for further treatment. The District Medical Officer, P. W. 8 examined him and finding his condition very serious, sent a requisition Exhibit P-5 to the Sub-Magistrate, Tuticorin, to record the dying declara