JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 18th January, 2006 passed by a Division Bench of the Madras High Court in Criminal Appeal No.142 of 1997 whereby and whereunder the appeal filed by the appellant against an order of conviction dated 30th January, 1997 passed by the Principal Sessions Judge, Dindigul Anna District, was dismissed.

3. Appellant with Jesu Raj and Arokiyam were proceeded against for commission of an offence under Section 302 of the Indian Penal Code. The first and second accused were charged for commission of an offence punishable under Section 302 of the Indian Penal Code whereas the third accused was charged for commission of an offence under Section 302 of the Indian Penal Code read with Section 34 thereof.

4. Enmity between the parties is admitted. There were instances to show that the accused had been causing various kinds of mischief. The incident in question occurred on 26th November, 1994. Two years prior thereto, accused Nos. 1 and 3 assaulted the deceased and PW-4, Viyakula Mary. Four months thereafter, the appellant (accused No.1) is said to have caused damage to the pipeline of the water of the house of the deceased. A few months before the incident in question, allegedly the haystack of the deceased was put on fire. Two weeks prior to the incident again, the deceased was assaulted resulting in initiation of a criminal proceeding against the accused.

5. On 26th November, 1994 at about 9.00 p.m. while the deceased and the informant - Kolandaisamy (PW-1) were proceeding towards their house from Nilakkottai Market on their bicycles, somebody had flashed torch light on the deceased. Deceased questioned thereabout. At that time PW-1 also flashed light from his torch towards the opposite direction and saw the appellant. Appellant assaulted the deceased with a wood log which was marked as M.O.1. He saw the accused No.3 catching hold of the deceased. He was threatened with dire consequences, if he intervened, by the accused No.2 with a knife. The deceased fell down but still was repeatedly assaulted. PW-1 ran from the spot. He was chased. He allegedly hid himself in a bush.

6. PW-1 met PW-2 Saveriar and informed him about the incident that had taken place. They rushed to their village. They came back to the scene of occurrence and found that the deceased had expired.

7. PW-1 went to Nilakottai police station. A First Information Report was lodged at about 1.00 A.M. on 27th November, 1994. The Investigating officer reached the place of occurrence at about 2.00 A.M. He recovered blood stained earth and a blue shawl. Inquest of the dead body was conducted between 3.00 a.m. and 5.00 a.m. He had also examined some witnesses being PWs. 1, 2, 5 and 6. The body was sent for post-mortem examination. Autopsy was conduced at about 11.15 a.m. on 27th November, 1994. The following anti mortem injuries were found on the person of the deceased :-

"1. On the back side of the head a bruise of the size 3 cm x 2 cm was found.

2. on the back of the left side of the head a bruise of size 3 cm x 2 cm was found. 3. On the upper portion of the head a swelling of the size 3 cm x 3 cm was found. 4. On the front side of the head a swelling of size 3 cm x 3 cm was found.

5. On the right side of the eye brow a bruise of size 2 cm x 1 cm was found.

6. Below the right eye a bruise of size 2 cm x 2 cm was found. Right eye was closed. Outside the right was totally blackened.

7. a swelling of the size 6 cm x 4 cm was found on the right cheek."

8. The learned Sessions Judge relying on or on the basis of the material brought on record accepted the deposition of PW-1, Kolandaisamy. All the other accused were held g