JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the learned Single Judge of the Madras High Court upholding the conviction of the appellants for the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short `IPC) so far accused A1 is concerned, and the co-accused for the offence punishable under Section 302 read with Section 34 IPC. Learned District and Sessions Judge, Tirunvelveli, has held the appellant and the co-accused guilty and as aforenoted by judgment dated 20.10.1989 in Sessions Case No.140 of 1987. Another person Subbiah-A3 was charged for commission of offence punishable under Section 323 IPC. A3 did not prefer appeal before the High Court and A2 has also not filed any appeal before this Court.

2. Background facts in a nutshell are as follows:

2.1. According to the prosecution appellant herein along with Shanmugavel A2 and Subbiah-A3 the father of A2 caused the death of one Vairamuthu (hereinafter referred to as `deceased) at 2.30 p.m. on 22.4.1986 at Villam village, Tenkasi Taluk. The first accused Arumugam and the third accused Subbiah are brothers. The deceased is none other than the brother of first and third accused. The accused, the deceased as well as PWs 1 and 2 - the brothers of A1 and A3 and the deceased were living as joint family in Palayampattu Street, Vallam village. During the panchayat election in 1986, in Ward No.II, three persons contested i.e. A1, the deceased Vairamuthu and one Murthi (PW4). The first accused requested the deceased to withdraw his nomination. The deceased refused to do so. The first accused had withdrawn himself from contesting in the election. The deceased was elected as a member of the Ward No.II. After two weeks, there was an election for the President of the Panchayat Board. On 21.4.1986 at 9 p.m. the third accused Subbiah came to the house and questioned the deceased as to how he received money to exercise his right to vote in the President election. The deceased refuted the said charge and also beat A3 who also beat the deceased. PW 4 and others separated the deceased and A3. While returning, A3 shouted that by any means, he will kill the deceased.

2.2. On the fateful day i.e. on 22.4.1986, the deceased was returning from his mango grove at 2.30 p.m. At that time, A1 armed with spike (MO1), A2 armed with aruval (MO2) and A3 armed with stick (MO3), came to his house. A3 entered into the house and dragged the deceased by holding the shirt and challenged saying "yesterday, you beat me, now you beat me". There was exchange of hot words. Immediately, A1 stabbed the deceased on his right neck with the spike, which pierced through the neck of the deceased and came out on the left side as stated by PW1. The second accused cut the deceased on his leg with the aruval as stated by PW1. The second accused questioned the third accused as to why the deceased was not yet killed. So saying, the second accused cut the deceased twice on his head. The deceased swooned and fell down. When PW1 tried to intervene, the third accused beat him with the stick on his right index finger, left thigh and on the back. When A3 attempted to beat PW1 again, he avoided the same by bending and the blow fell on the head of A1 who fell down. Thereafter, A1 tried to pull out the spike MO1 from the neck of the deceased and the spike broke into two pieces. A2 and A3, along with the weapons, ran away. The spike was identified by PW1. The death was instantaneous. The occurrence was witnessed by PW1 and PW2, who are the brothers and PW3 the sister of the deceased as well as accused 1 and 3.

2.3. Pichai Kannu (PW1) and Ramakrishnan (PW2) went to Kutralam Police Station and gave the complaint. PW13, the Sub Inspector of Police, Kutralam Police Station recorded the statement of PW1 at 3.30 p.m., which is Ex.P1 as attested by PW2. He also prepared the first information report on the basis of which investigation was undertaken.

3. After completion of investigation charge