JUDGMENT :

DEEPAK GUPTA, J.

1. This appeal filed by the accused-appellant is directed against the judgment and order of the High Court of Madras dated 19.12.2008, whereby conviction of the appellant no. 1 (A1) under Section 302, Indian Penal Code, 1860 (IPC for short) has been upheld. Since appellant No. 2 (A2-Rajendran) has died during the pendency of this appeal, the appeal shall stand abated in so far as appellant no. 2 is concerned.

2. The facts of the case are that Chinnappa Gounder (deceased) was the neighbour of the first accused. They both had adjacent landed properties and shared a common boundary. There was a common well on this boundary which was also divided between the appellant no. 1 and the deceased. A dividing wall was there in the well.

3. The appellant had initiated some civil proceedings and appear to have obtained an order permitting accused no. 1 to repair the well. On 17.07.2000, Karuppanna Gounder, his son-in-law Rajendran, his wife Thangaiyee, his son Mayakrishnan, and some others were removing sand from their portion of the well when PW-6 son of the deceased Chinnappa Gounder objected to this action since they were dropping the sand on the passage used by the d