K.N. Basha, J.

(1) - The learned Counsel for the petitioner submitted that the petitioner has been arrayed as A7 and originally there are 9 accused and they have been charged for the offence under Section 341, 323 and 149 r/w 302 IPC.

(2) THE learned counsel for the petitioner submitted that except the petitioner herein, in respect of all the other accused, the case was split up and tried and ultimately ended in acquittal. The learned counsel for the petitioner submitted that the learned trial Judge has held, while acquitting the other co-accused that all the witnesses to the prosecution viz. , PWs 1, 2, 3 and 4 have not supported the prosecution case and they have been treated as hostile. The learned counsel further submitted that the further finding of the learned trial Magistrate is to the effect that even the other witnesses, viz. PWs5 and 6 have also turned hostile. It is submitted that the learned trial Judge has held that the prosecution is failed to prove the charges levelled under Section 148 I. P. C. against A1` to A3 and A5, under Section 147 i. P. C. against A4, A6 to A9 under Section 341 I. P. C. against Al to A9, under Section 324, I. P. C. against Al, A3 and A6, under section 323 I.

P. C. against A4, A6 to A9, under Section 302 IPC against A3 and under Section 149 IPC against Al and A 2 and A4 to A9. It is contended by the learned counsel for the petitioner that as this accused was absconding, his case was split up separately and now the case is posted for trial in respect of the petitioner herein. It is contended by the learned counsel for the petitioner that in view of the learned trial Judge has given a finding to the effect that the prosecution has failed to establish its case in respect of all the charges including the charge for the offence under section 302 IPC, no useful purpose would be served by putting the petitioner herein to undergo the ordeal of trial and as such the proceedings initiated against the petitioner by splitting up the case is liable to be quashed.

(3) THE learned Government Advocate (Criminal Side) submitted that there are totally 9 accused and the petitioner has been arrayed as A7 and as he was absconding his case was split up separately and rest of the other co-accused, viz. , Al to A-6, A8 and A9, the case was tried separately in S. C. No. 86 of 1999 and, the learned Principal Sessions judge, Tanjore, after the trial has come to the conclusion that the prosecution has failed to prove the charges against Al to A6, a8 and A9 in respect of the offence alleged against them. It is submitted by the learned government Advocate (Criminal Side) that the prosecution case is to the effect that all the accused said to have formed an unlawful assembly with intention to commit rioting and causing injury to the witnesses and a1 and A2 armed themselves with iron rods, a3 armed with aruval, A5 armed with cycle chain. A4, A6 to A9 armed with sticks and in furtherance of the common objection all the accused came there and obstructed the prosecution parties, assaulted the witness, pw3. It is further submitted that while attacking the witnesses, the deceased, Rama chandran intervened and sustained injury on his head at the hands of A3 as A3 beat the deceased on his head with the spade handle and thereafter he was admitted in the hospital and ultimately died on 19. 1. 91 at 5. 15 a. m. at Thanjavur Medical College hospital Thanjavur i. e. , three days after the occurrence. It is submitted by the learned government Advocate (Criminal side) that as far as the present petitioner A7 is concerned, he is only said to have assaulted a witness in this case and, he has not attacked the deceased.

(4) I have carefully considered the rival contentions put forward by either side and also perused the materials available on record.

(5) IT is seen that the petitioner has been arrayed as A7 out of 9 accused originally and as the petitioner was absconding the case was spilt up in respect of the other remainin