Dinesh Maheshwari, J. - (1.) In this appeal, the accused-appellant has called in question the judgment and order dated 21.02.2008 in Criminal Appeal No. 1003 of 2000 whereby, the High Court of Judicature at Madras has affirmed his conviction for the offence under Section 302 of the Indian Penal Code ('IPC'), even while acquitting the accused No. 2 for the offence under Section 302/34 IPC in modification of the judgment and order dated 27.06.2000 as passed by the Principal Sessions Judge, Thanjavur in Sessions Case No. 168 of 1999. 1.1. In the Sessions Case aforesaid, the accused-appellant was charged for the offence under Section 302 IPC whereas the appellant's brother (accused No. 2) was charged for the offence under Section 302/34 IPC and the appellant's wife (accused No. 3) was charged for the offences under Sections 302/34 and 341 IPC. The Trial Court convicted the appellant for the offence under Section 302 IPC and awarded him the punishment of life imprisonment together with fine of Rs. 1,000/- with default stipulations; and also convicted the appellant's brother (accused No. 2) for the offence under Section 302/34 IPC and awarded him the same punishment of life imprisonment with fine of Rs. 1,000/- with default stipulations. However, the Trial Court found the appellant's wife (accused No. 3) not guilty of the offences under Sections 302/34 and 341 IPC and she was, accordingly, acquitted. In appeal, the High Court maintained the conviction and sentence of the appellant but found the accused No. 2 not guilty and he was, accordingly, acquitted.
(2.) The basic question calling for determination in this appeal is as to whether, in the given set of facts and circumstances, the High Court was justified in maintaining the conviction of the appellant for the offence under Section 302 IPC?
(3.) The background aspects of the case, so far relevant for the question at hand, could be noticed, in brief, as follows: 3.1. The prosecution case had been that the deceased Poondhaisezhiyan and wife of the appellant, Smt. Jayaseeli (who was accused No. 3 in this case) carried a long-drawn rivalry because of the elections of Town Panchayat where the deceased was instrumental in getting another candidate elected as President and thereafter, himself got elected as Vice-president by defeating the accused No. 3. According to the prosecution, the accused No. 3 made a complaint against the deceased that was enquired into and was found to be false; and this failure of complaint had enraged the accused persons. It was alleged that on 23.08.1997 at about 5.00 p.m., the appellant R. Jayapal (accused No. 1) along with his wife (accused No. 3) had had an altercation with the deceased in front of his house when the appellant vowed to finish off the deceased within 24 hours. It was further alleged that the same day at about 7.15 p.m., when the deceased left his house in order to visit Thanjavur and was crossing the lane in front of the house of the appellant, the appellant came down with a spike, the accused No. 2 came with a sickle, and the accused No. 3 came unarmed; the accused No. 2 (brother of the appellant) attacked the deceased with sickle but his blow was blocked by the deceased; the deceased attempted to run away but was ambushed by the accused No. 3 and she exhorted not to spare the deceased; and then, the appellant stabbed the deceased on chest with the spike. This incident was allegedly witnessed by PW-1 Pandian, brother of the deceased who carried the deceased to hospital and on whose statement, FIR was registered as per the report made by PW-12 Head Constable Jaganathan. The relevant parts of FIR could be usefully extracted as follows:-".....Today on 23.08.97, at 5 p.m. my brother was in his house. When I returned from bazaar, there were shouting. When I went near I saw my brother Poondaichelian, Jayaseeli and Jayapal were arguing. Then my brother Poondaichelian told Jayaseeli that was sending false complaint against him and she was talking ill of him and told her to behave properly. For that Jayaseeli asked what respect he deserved. Jayapal told him to finish him off within 24 hours. I pacified my brother and send him to his house. Jayaseeli and Jayapal went towards east. Then my brother listened the 7 1/4 news in radio and started to Thanjavur. At that time in the post near my house, light was glowing. There was good illumination. I was sitting on the raised platform of my house. When my brother was going towards east in the road in front of the road near the house of Jayapal, Jayapal came with a spike, Savier came with a sickle and Jayaseeli came with no weapon. Savier ran to my brother and cut my brother with sickle. My brother blocked that and pushed him down. So, the cut did not land on my brother. My brother tried to run toward West. Jayaseeli blocked the way of my brother and shouted not to spare him. Jayapal stabbed the spike in his hand on the left chest of my brother. My brother fell down. I ran shouting. Arumainathan who is in front of my house and those who came by the way, Chinnaiyan s/o Rengamani, Ravichandran, s/o Gurusamy also shouted. Jayapal, Jayaseeli and Savier also ran. I chased them to catch them. They ran to each direction. I chased Jayapal towards east and caught him in a short distance. Fearing that he may punch me with the spike, I snatched the spike. He tussled and threw away the spike and ran away. The spike is lying there. When returned and saw my brother, he was struggling for life. I got a van urgently and got him in the Thanjavur Medical College hospital there doctor examined him told that my brother had died and sent the corpse to mortuary. He also told me that he would inform that police. I was shocked since my brother died and I sat there weeping. Now I am telling you what happened. I request you to take action on Jayapal, Savier and Jayaseeli who killed my brother.";