Kerala High Court
Shine C/O. Chandran vs State Of Kerala on 4 February, 2009
Author: Thomas P.Joseph
Bench: A.K.Basheer, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 474 of 2005()
1. SHINE C/O. CHANDRAN,
... Petitioner
2. ANIL KUMAR S/O. NESAMONY,
3. VINU, S/O. SUNNY, S.R.COTTAGE,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/02/2009
O R D E R
A.K. BASHEER & THOMAS P.JOSEPH, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = = =
CRL. APPEAL No.474 of 2005,
CRL. APPEAL No.515 of 2005
AND
CRL. APPEAL No.1058 of 2005
= = = = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 4th day of February, 2009
J U D G M E N T
----------------------
Thomas P.Joseph, J.
Accused, eight in number faced trial for the offences punishable under Secs.143, 147, 148, 341, 324, and Sec.302 read with Sec.149 of the Indian Penal Code (for short, "Code") on a charge that on 2.5.1998 at about 7.15 p.m. on the Neyyattinkara-Kattakada road at Thozhukkal Junction they formed an unlawful assembly and in prosecution of their common object to cause the death of Surendra Kumar @ Giri (hereinafter referred as "the deceased"), wrongfully restrained him and P.Ws.1 and 2, voluntarily caused hurt to them and the deceased succumbed to the injuries. Learned Additional Sessions Judge found the accused guilty of the offences charged against them, convicted and sentenced them to undergo imprisonment for life under Sec.302 of the Code and imprisonment for various periods and payment of fine for the other offences (except for Sec.148 of the Code for which no separate sentence was awarded). That conviction and sentence are under challenge. CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 2 :- Accused 1, 5 and 6 filed Crl.Appeal No.474 of 2005, accused 2 to 4 filed Crl. Appeal No.515 of 2005 and accused 7 and 8 filed Crl.Appeal No.1058 of 2005. Learned counsel submitted that the first appellant in Crl.Appeal No.515 of 2005 (accused No.2) died after filing of the appeal. None of the near relatives of accused No.2 has come forward seeking leave to continue the appeal to the extent it concerned accused No.2. Hence that appeal to the extent it concerned the first appellant/accused No.2 stands abated.
2. We heard learned counsel, Shri Pirappancode V.Sreedharan Nair, Shri V.N. Achutha Kurup and Shri R.T. Pradeep who appeared for the accused and the learned Public Prosecutor, Shri Jai George. It is contended by the learned counsel that charge framed by the learned Additional Sessions Judge is defective and that vitiated the trial. Further contention is that prosecution has not proved the alleged motive and the case against accused beyond reasonable doubt. Learned Public Prosecutor supported the conviction and sentence.
3. According to the prosecution accused Nos.1 to 8 are DYFI activists and the deceased is a BJP activist. The BJP activists led by the deceased had taken up a campaign in the locality against sale of illicit arrack and put up boards and pasted posters at Thozhukkal Junction as part of it. Accused No.2 is the owner of Silpi sounds at CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 3 :- Thozhukkal Junction. Accused No.2 removed one of those boards and set up his serial lights (illumination sets) while illuminating the Chapel and nearby places in connection with the celebration in the church. Deceased who was annoyed by that conduct of accused No.2 destroyed some serial lights. On 1.5.1998 accused No.2 threatened to avenge the deceased for that. On 2.5.1998 at about 7.15 p.m. accused Nos.1 to 8 armed with weapons formed unlawful assembly at the place of occurrence. P.Ws.1, 2 and the deceased came to Thozhukkal junction to take tea from Beena restaurant near the place of occurrence. Accused Nos.4 and 5 called the deceased as they wanted to talk to him. The deceased followed by P.Ws.1 and 2 went towards the accused. Accused surrounded P.Ws.1, 2 and the deceased. Accused No.2 challenged the deceased that he dared to destroy the serial lights and exhorted accused No.1 to do away with the deceased. Accused No.1 assaulted the deceased with M.O.1 and inflicted injuries. P.W.1 tried to intervene. Accused No.1 assaulted P.W.1 also with M.O.1 and inflicted injuries. P.Ws.1, 2 and the deceased ran towards south. Accused No.1 followed them and assaulted P.W.2 on the back of his neck with M.O.1. P.Ws.1, 2 and the deceased were taken to the Government Hospital, Neyyattinkara. P.W.6, Assistant Surgeon, Government Hospital, Neyyattinkara proved CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 4 :- Ext.P2, wound certificate concerning P.W.1. P.W.6 examined P.W.1 in that hospital on 2.6.1998 at about 7.40 p.m. P.W.1 had incised wounds on the front of left shoulder and lateral aspect of right scapula. Since the condition of the deceased was serious, they were referred to the Medical College Hospital, Thiruvananthapuram where the deceased was declared dead. P.W.12 conducted inquest on the body of the deceased. Exhibit P7 is the report.
4. P.W.7, Assistant Professor, Department of Forensic Medicine, conducted the postmortem examination and issued Ext.P3. Exhibit P3 refers to the antemortem injuries which includes four incised wounds. P.W.7 was of the opinion that injury No.1 in Ext.P7 was sufficient in the ordinary course to cause the death. That, P.W.1 and deceased suffered injuries as stated in Exts.P2 and P7 on 2.5.1998 and that the latter succumbed to the injuries are proved by the prosecution and not disputed before us. On the question whether P.W.2 suffered injuries in the same transaction, it is contended that there is no evidence to prove that. We will advert to that a little later.
5. P.Ws.1 to 4 are the witnesses examined by prosecution to prove the incident. P.Ws.2 and 3 are direct brothers. According to P.Ws.1 to 3, on 2.5.1998 they, along with deceased and one Anil Kumar were at work at the residence of one Ravindran Nair. After the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 5 :- work was over on the evening they washed themselves. P.W.3 and Anil Kumar proceeded to Thozhukkal junction to take tea. P.W.3 deposed that himself and Anil Kumar had tea from Beena restaurant and were standing in front of that restaurant. P.Ws.1 to 3 claimed that at about 7.15 p.m. P.Ws.1 and 2 and the deceased came to the Junction, according to P.Ws.1 and 2, to take tea from Beena restaurant. When P.Ws.1, 2 and the deceased reached near the scene of occurrence, accused Nos.1 to 8 were standing near Silpi Sounds belonging to accused No.2. Accused Nos.4 and 5 called the deceased as they wanted to talk to him. The deceased, followed by P.Ws.1 and 2 went towards the accused. The accused surrounded P.Ws.1, 2 and the deceased. Accused No.2 challenged the deceased that he dared to destroy the serial lights and exhorted accused No.1 to do away with the deceased. Accused No.1 assaulted the deceased on the left side of his neck with M.O.1 P.W.1 intervened. Accused No.1 assaulted P.W.1 on his left shoulder and right scapula with M.O.1. Both suffered injuries. Scared, P.Ws.1, 2 and the deceased ran towards south along the road. Accused No.1 went behind them and assaulted P.W.2 on the back of neck with M.O.1. P.Ws.1 and 2 claimed that they got into the Chembaravthivila road (running eastwards towards south of the place of occurrence) and looked back for the deceased. P.W.3 claimed CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 6 :- that then also he was standing in front of Beena restaurant. P.W.3 deposed that accused No.1 who followed P.Ws.1, 2 and the deceased again assaulted the deceased with M.O.1. P.Ws.1 to 3 saw the deceased collapsing on the road. P.W.3 and C.W.4 (D.W.1) who came there took P.Ws.1, 2 and the deceased to the Government Hospital, Neyyattinkara and then to the Medical College Hospital, Thiruvananthapuram where the deceased was declared dead. P.W1 deposed that while undergoing treatment at that hospital, he gave first information (Ext.P1) at 10.30 p.m (C.W.28 recorded Ext.P1 and registered the case). Exhibit P1(a) is the FIR. The signature of C.W.28 in Exts.P1 and P1(a) was proved through P.W12 as C.W.28 was not alive. P.Ws.1 to 3 identified M.O.1 as the weapon with which accused No.1 inflicted injuries on P.Ws.1, 2 and the deceased. P.W.1 claimed that when the accused surrounded them, he saw weapons with all the accused. P.Ws.1 to 3 claimed that there was light at the place of occurrence from the burning street lights and electric bulbs in the nearby shops.
6. P.W.4 is a resident of Thozhukkal area and claimed to have been to that junction on the evening of 2.5.1998 to purchase articles. At about 7.15 p.m. he was standing in front of the shop of Chandran CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 7 :- (almost opposite to the place of occurrence on the western side of the road). P.W.4 found accused Nos.1 to 5, 7 and 8 on the opposite side (of the shop of Chandran) in front of Silpi Sounds belonging to accused No.2. By about 7.15 p.m. P.Ws.1, 2 and the deceased came in front of Beena restaurant. Accused Nos.4 and 5 came forward and called the deceased as they had something to tell him. When the deceased and P.Ws.1 and 2 went to them, the said (accused) persons surrounded them. Accused No.1 had M.O.1 with him. Accused No.2 was carrying a short stick. Accused Nos.4 and 5 carried punch blocks (an instrument for hitting that could be kept in the hand). Accused No.2 challenged the deceased that he dared to destroy serial lights and exhorted to do away with the deceased. Accused No.1 assaulted the deceased and P.W.1 with M.O.1. P.Ws.1, 2 and the deceased took to their heels. Accused No.1 went behind them and assaulted P.W.2 on the back of his neck with M.O.1. Deceased collapsed in front of the shop towards south of Ramakrishna Stores. P.Ws.1 and 2 ran towards Chembarathivila road and after chasing them, accused returned to the Junction. Accused Nos.4 and 5 threw away the punch blocks and the accused dispersed towards different directions. P.W.4 claimed that there was sufficient light at the time of the incident. According to P.W.4, he listened to the accused persons (when they were standing CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 8 :- near Silpi Sounds belonging to accused No.2) as they were carrying weapons.
7. P.W.5 is the father of the deceased. He deposed that on 2.5.1998 at about 5.00 p.m. accused Nos.1, 2 and 6 came to his house and enquired about the deceased. To his query about the purpose, they told him that they wanted the deceased in connection with the purpose of church. P.W.5 told them that the deceased had gone for work on the morning. P.W.5 claimed that the said persons had come in search of the deceased previously also and hence when they enquired about the deceased on 2.5.1998, he felt nothing unusual about that. P.W.5 learnt about the death of the deceased on 2.5.1998 at about 10.00 p.m.
8. P.W.10 is a local leader of the BJP. He had been to Thozhukkal junction on 2.5.1998 at about 7.00 p.m. and met accused No.4 who informed him about the deceased (who is a BJP activist) destroying the serial lights in front of the Chapel. P.W.10 told accused No.4 that as the BJP had no involvement in that matter, accused No.4 could get damages from the person concerned. While P.W.10 was going along Chembarathivila road he met the deceased, informed the latter about his meeting of accused No.4, advised the deceased to settle the issue and walked away. Later, he learnt about the incident CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 9 :- and death of the deceased. P.W.10 is also an attester in Ext.P7, the inquest report prepared by P.W.12. The witness identified M.Os.2 to 4, clothes seized from the dead body at the time of inquest.
9. In Ext.P2, wound certificate concerning P.W.1, history and alleged cause of injury stated is "due to a person assaulting with sword (Akkathy) at Thozhukkal junction on 2.5.1998 at 7.20 p.m.". P.W6, Assistant Surgeon who examined P.W.1 and issued Ext.P2 stated that the incised wounds mentioned in Ext.P2 could be caused with a weapon like M.O.1. P.W.7, Assistant Professor who conducted the postmortem examination on the body of deceased and issued Ext.P3 opined that injury No.1 (incised wound) mentioned in Ext.P3 can be caused with a weapon like M.O.1. Injury Nos.2 to 4 (also incised wounds) can be caused by coming into contact with sharp edged portion of M.O.1. Injury Nos.5 to 7 (abrasions) could be caused while falling on the ground. Injury No.8 is a healing wound, 0.5x0.5 cm on the inner aspect of left wrist of the deceased, covered by yellowish red crust.
10. Exhibit P8 is the mahazar for scene of occurrence prepared by P.W.12. P.W.11 is an attester in Ext.P8 (P.W.11 is the brother of P.Ws.2 and 3). As per Ext.P8, P.W.3 pointed out the place of occurrence to P.W.12. Exhibit P5 is the sketch of the place of CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 10 :- occurrence prepared by P.W.8, Village Officer. As per Exts.P5 and P8, place of occurrence is the eastern margin of Neyyattinkara- Kattakada road, in front of the closed shop of one Yesudas which is on the southern side of Silpi Sounds belonging to accused No.2 and on the northern side of Beena restaurant belonging to one Moni. P.W.12 found dry blood stains on the road portion about 22.90 metres south of the scene of occurrence. He collected soil stained with blood and not stained with blood from that place. From towards a little south of the place where blood stains were seen, Chembarathivila by-lane goes towards east. Exhibits P5 and P8 show two electric posts towards north and south of the place of occurrence on the western road margin, 16.00 metres and 11.40 metres, respectively away from the place of occurrence. The western side of the road comes within Municipal area while the eastern area comes within Panchayat area.
11. P.W.13, Circle Inspector deposed that he arrested accused Nos.1 and 6 to 8 on 18.5.1998 and on the information given by accused No.1, recovered the same day M.O.1 which was kept in a growth of grass in a paddy field. Exhibit P6 is the mahazar for the recovery. Exhibit P6(a) is the relevant portion of the information allegedly given by accused No.1 and which led to the alleged recovery. P.W.13 seized M.Os.5 and 6 (clothes produced by accused No.1) as per CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 11 :- Ext.P13. P.W.9 is an attester in Ext.P6 and supported the prosecution. He is an Ex-serviceman and claimed to be residing about 50 metres away from Thozhukkal junction. P.W.9 deposed that he found accused No.1 producing M.O.1 from the above said place before P.W.13. P.W.13 claimed to have arrested accused No.2 on 5.5.1998 and searched his house on 5.5.1998 but weapon could not be recovered. He arrested accused Nos.5 to 8 and searched their houses on 6.5.1998 for weapons but with the same result. M.Os.7 and 8 are the clothes produced by accused No.6 and seized as per Ext.P14. M.Os.9 and 10 are the clothes produced by accused No.7, seized as per Ext.P15. M.Os.11 and 12 are the clothes produced by accused No.8, seized as per Ext.P16.
12. When questioned under Section 313 of the Code of Criminal Procedure (for short, "Cr.P.C.") accused claimed that the church authorities had hired serial lights from Silpi Sounds (run by the accused No.2) for illuminating the Chapel and other places in connection with the celebration. Accused No.1 is an employee of accused No.2. Deceased belonged to the BJP. Deceased and others destroyed the serial lights. There was a quarrel over that between the deceased and others and the church authorities on 1.5.1998. Deceased sustained injuries on 2.5.1998. Deceased and others had CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 12 :- altercation with people belonging to the Abkari lobby. Accused claimed that they have nothing to do with the incident.
13. Accused examined C.Ws.4 and 8 as D.Ws.1 and 2, respectively. D.W.1 (C.W.4) is running a furniture shop towards north- west of the scene of occurrence on the western side of the road. D.W.2 (C.W.8) claimed that he was standing in front of the shop of one Bhaskaran Nair at Thozhukkal Junction. According to D.Ws.1 and 2, incident occurred after 7.00 p.m. D.W1 deposed that the deceased and P.W.1 were standing in front of Beena restaurant belonging to Moni. D.W.2 stated that the deceased and P.W.1 were standing in front of Ramakrishna Stores. While so, a person wearing black pant and white shirt went there carrying a knife and assaulted the deceased and P.W.1. The deceased and P.W.1 took to their heels. The assailant chased and assaulted them again with that knife. The deceased collapsed on the road. D.W.2 claimed that the assailant got on to the pillion of a Scooter and escaped. D.W.1 deposed that the assailant ran away along the road. D.W.1 took P.W.1 and the deceased to the hospital. D.W.1 claimed that P.W.1 and the deceased had destroyed the serial lights put up by the church authorities as the board put up by them was removed. D.W.1 claimed that there was load shedding in the Panchayat area (i.e. towards eastern side of the road) between CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 13 :- 7.00 p.m. and 8.00 p.m. on 2.5.1998. There was current supply in the Municipal area (i.e. on the western side of the road where electric posts are situated). D.W.2 claimed that he saw the incident in the light of burning petromax in the nearby shop.
14. We shall consider the contention that the court charge is defective and vitiated the trial. We have gone through the court charge. The place of occurrence is not mentioned in the court charge. So also, accused No.1 who is alleged to have inflicted injuries on the deceased and P.Ws.1 and 2 is not separately charged with the offences punishable under Secs.324 and 302 of the Code. Instead, accused Nos.1 to 8 are charged together for the offences punishable under Secs.143, 147, 148, 324 and Sec.302 read with Sec.149 of the Code. According to the learned counsel, it is mandatory under Sec.212 Cr.P.C. that place of occurrence is stated in the court charge. It is argued that the omissions are material and vitiated the trial.
15. The purpose of framing charge is to tell the accused as precisely and concisely as possible of the matter with which he is charged. The charge must convey to the accused what the prosecution intends to prove against him and what he is required to defend. As per Sec.212 Cr.P.C., the charge must set out all material CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 14 :- particulars including as to the time, place and person and the provisions of law that are alleged to be contravened. But it is not as if every error, omission or irregularity in the court charge would vitiate the trial. The Cr.P.C. is a procedural law. Procedural law is designed to facilitate justice and cannot frustrate the ends of justice as held by this Court in Raghava Nadar Reghu v. State (1988(1) KLT
156) and the Apex Court in Kammari Brahmaiah v. Public Prosecutor (AIR 1999 SC 775).
16. Section 215 Cr.P.C. states as under:
"Effect of errors:- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice".
Section 464 Cr.P.C. states as under:
"Effect of omission to frame, or CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 15 :- absence of, or error in, charge.- (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction".
CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 16 :- Section 465 states as under:
"Finding or sentence when reversible by reason of error, omission or irregularity:- (1) Subject to the provisions hereinabove contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby".
Reading Secs.215, 464 and 465 Cr.P.C together, it leaves us in no doubt that an error, omission or irregularity in the charge cannot vitiate the trial nor can the findings of the trial court be reversed for that reason unless the error, omission or irregularity is such that it prejudiced the accused or occasioned a failure of justice. The court has to consider whether the accused was mislead by the error, CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 17 :- omission or irregularity in the charge and it denied a fair trial to him. The decisions of the Apex Court in Willie (Willaim) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116), Kammari Brahmaiah v. Public Prosecutor (referred supra) and State of Andhra Pradesh v. Thakkidiram Reddy and Others (1998 Crl.L.J. 4035) support that view.
17. In this case, so far as the place of occurrence is concerned, Exts.P5 and P8 (sketch and mahazar for scene of occurrence) copies of which were given to the accused well in advance of commencement of the trial specifically stated where according to the prosecution the incident had occurred. It is with the above information that the accused who were defended by lawyers went to trial. There is no case that the accused were unaware of the place of occurrence stated by the prosecution or were mislead by the omission to mention that in the court charge and, there is also no reason to think so. D.Ws.1 and 2 examined by the accused also stated that the incident occurred on the road at Thozhukkal junction near Beena restaurant (close to the place of occurrence shown in Exts.P5 and P8). So far as the contention that there is no independent charge against accused No.1 for the offences under Secs.324 and 302 of the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 18 :- Code is concerned, learned Additional Sessions Judge stated in the charge thus:
"........accused No.2 exhorted the other accused persons to kill Giri. Accused No.1 using "Akkathy" inflicted cut wounds on the neck of Giri and also on C.WS.1 and 2. The aforesaid Giri succumbed his injuries and thereby, you all the accused have committed the offences punishable under Secs.143, 147, 148, 324 and 302 read with Sec.149 IPC".
Accused No.1 is specifically charged for inflicting injuries on the deceased and P.Ws.1 and 2 with 'Akkathy'. It is only that the Section of offences (Secs.302 and 324 of the Code) are not separately attributed to accused No.1. P.Ws.1 to 4 who gave evidence for the prosecution were thoroughly and at length cross-examined by the learned defence counsel. The evidence of P.Ws.1 to 4 regarding the incident were also put to the accused when they were questioned under Sec.313 Cr.P.C. We are not inclined to think on the facts and circumstances of this case that the error or omission referred above has resulted in any failure of justice or occasioned prejudice to the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 19 :- accused or denied a fair trial to them.
18. We now come to the contention that the motive alleged is not proved. Learned counsel took us through the evidence of P.W.13, Circle Inspector that he had not enquired about the damage allegedly caused to the serial lights. P.W.13 has also not traced the board removed by accused No.2. But regarding the motive, there is the evidence of P.Ws.1, 2, 5 and 10. D.W.1 also deposed that the board put by the deceased (according to him, by the deceased and P.W.1) was removed and on account of that, the deceased destroyed the serial lights, according to him taken on rent by the church authorities. In the circumstances, failure of P.W.13 to investigate into that aspect is not fatal. Though it is the case of the prosecution that there was also political animosity between the deceased and the accused who belonged to BJP and DYFI respectively, P.W.s.1 and 2 were sure that before the incident on 2.5.1998 there was no quarrel between the two sides on that account. According to the learned counsel, "purposes of the church" referred to by P.W.5 in his evidence is the dispute which the deceased had with the church authorities on account of the deceased destroying the serial lights put up by the church authorities. We find it difficult to give such an interpretation. Even D.W.1 who claimed that the church authorities had put up the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 20 :- serial lights only stated that it was taken on hire. Whether taken on hire or not, the lights belonged to accused No.2 is clear from the evidence of D.W.1 also. We also bear in mind that in a case which rests on direct evidence, proof of motive is not absolutely necessary.
19. It is contended that there is no evidence to show that P.W.2 suffered injuries in the incident. Learned counsel argued that if P.W.2 also had been to the Government Hospital, Neyyattinkara and then to the Medical College Hospital, he would have got admitted in any of those hospitals for treatment and there would have been records to prove the injury and treatment. Learned counsel argued that the version of P.Ws.1 to 4 that P.W.2 suffered injuries in the incident has to be rejected.
20. According to P.Ws.1 to 4, P.W.2 suffered injury on the back of his neck due to accused No.1 assaulting him with M.O.1. P.Ws.1 to 3 stated that P.Ws.1 and 2 and the deceased were taken to the Government Hospital, Neyyattinkara and then to the Medical College Hospital. P.W.2 claimed that he did not go for any treatment since the injury was simple. He was given dressing for the wound at the Medical College Hospital. P.W.12, Circle Inspector proved the signature of C.W.28 (expired later) in Exts.P1 and P1(a). Exhibits P1(b) and P1(c) are the body notes of P.Ws.1 and 2, respectively, prepared CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 21 :- by C.W.28 immediately after recording the statement (Ext.P1) of P.W.1 at the Medical College Hospital on 2.5.1998 at 10.30 p.m. Exhibit P1
(c) sates that C.W.28 found dressing with medicine, cotton and plaster on the back of neck of P.W.2 who was undergoing treatment in the outpatient ward of that hospital. Deposition of P.W.12 shows that there was no challenge to Exts.P1(b) and P1(c). Exhibit P1(c) is what C.W.28 saw on the back of neck of P.W.2, which is admissible in evidence. Exhibit P1(c) corroborates the version of P.W.2 that he suffered injury on the back of the neck in the transaction in which P.W.1 and the deceased suffered injuries.
21. It has come in evidence that P.Ws.1 to 4 are activists or sympathisers of the BJP and that the accused are CPI(M) activists. Of course, there was no incident prior to 2.5.1998 between them on account of political animosity. Assuming so, there is evidence that deceased had destroyed the serial lights put up or belonging to accused No.2. According to P.Ws.1 to 3 they, along with the deceased and one Anil Kumar (not cited as witness) had been working at the residence of Ravindran Nair on 2.5.1998 and on the evening after washing themselves, P.W.3 and Anil Kumar went to Thozhukkal junction to take tea, followed by P.Ws.1, 2 and the deceased. According to P.W.4, he had been to Thozhukkal junction to purchase CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 22 :- some articles. P.Ws.1 to 4 have stated that on P.Ws.1, 2 and the deceased approaching Beena restaurant, accused Nos.4 and 5 called the deceased as they wanted to say something, the deceased followed by P.Ws.1 and 2 walked upto the accused who surrounded them, accused No.2 challenged the deceased that he dared to destroy the serial lights and exhorted accused No.1 to dispose of the deceased. They also deposed to accused No.1 inflicting injuries on the deceased and P.Ws.1 and 2 with M.O.1. According to D.Ws.1 and 2, when the deceased and P.W.1 were standing at the Junction (according to D.W.1, near Beena restaurant and according to D.W.2, near Ramakrishna Stores) a person wearing black pant and white shirt came there, assaulted P.W.1 and the deceased with a knife and escaped from the scene, according to D.W.2, riding on the pillion of a Scooter. Learned counsel placed much reliance on the evidence of D.Ws.1 and 2 and argued that they are charge witness Nos. 4 and 8, respectively cited by the prosecution to prove the incident. It is also the contention of the counsel that defence witnesses are entitled to a treatment on par with prosecution witnesses.
22. It is indisputable that defence witnesses are entitled to equal treatment with the prosecution witnesses. We are to consider the entire evidence and decide whether the prosecution has proved its CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 23 :- case beyond reasonable doubt. D.W.1 claimed that he had not told the police about what he saw on the relevant day, time and place. Though D.W.2 claimed that he saw the incident in the light of the petromax in the nearby shop, he claimed that there was sufficient light to identify the assailant. As per the evidence of D.W.1, load shedding was only in the Panchayat area (on the eastern side of the road) and there was supply of electrical energy on the western side (where, as per Exts.P5 and P8 there are two electric posts on the side of the road at a distance of 11.40 metres and 16.00 metres respectively away from the place of occurrence). It is true that in Ext.P8, P.W.12 has not specifically stated about presence of bulbs on those electric posts. But, we find no reason to disbelieve the evidence of P.Ws.1 to 4 that there was sufficient light from those electric posts and nearby shops at the time of the accident.
23. It is contended by the learned counsel that none of the shop keepers are examined as witnesses. Learned counsel contends that in that respect also, there is no reason to disbelieve the evidence of D.W.1, a shop keeper of the junction. It is not disputed by P.Ws.1 to 4 that the shops were functioning at the time of the incident. It is not as if the prosecution had not cited any of the shop keepers to prove the incident. D.W.1 (C.W.4) was cited by the prosecution. May be, CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 24 :- as subsequent turn of events justified it, prosecution was not sure enough about what it thought, the loyalty of D.W1 (C.W.4) and did not examine him. It is altogether a different matter whether such a thought gave justifiable reason not to examine D.W.1 (C.W.4) on the prosecution side. It may also be that other shop keepers had not witnessed the incident as they were busy with their business or, claimed that they had not witnessed the incident. It is apposite in this situation to remember that accused No.2 himself was engaged in business at the very same junction. Non-examination of the shop keepers is no ground to reject the evidence of P.Ws.1 to 4.
24. It is contended that the version of P.Ws.1 to 3 that themselves and the deceased were working at the residence of Ravindran Nair on 2.5.1998 and came to Thozhukkal junction on the evening cannot be believed. According to P.W.1, himself and the deceased had not taken any food that day after their noon meal at the residence of Ravindran Nair. P.W.3 said that their noon meal consisted of rice and vegetables. But in Ext.P3 (postmortem certificate), P.W7 has stated that the stomach of the deceased was full with pieces of meat and other unidentifiable food articles. Learned counsel contended that this statement in Ext.P3 indicated that the deceased had not taken meals with P.Ws.1 to 3 at the residence of CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 25 :- Ravindran Nair, but was elsewhere on 2.5.1998.
25. We are unable to think that the presence of meat particles in the stomach of the deceased as stated by P.W.7 in Ext.P3 would falsify the version of P.Ws.1 to 3 or improve the version of the accused. Exhibit P3 and evidence of P.W.7 show that there was no unusual smell in the stomach of the deceased. No question was put to P.W.7 on behalf of the accused as to the possible time at which the deceased had his last meal. What could be said at the best is that version of P.W.3 that their meal at the residence of Ravindran Nair consisted of rice and vegetables is not fully correct. It is not the contention of the accused that P.Ws.1 to 3 and the deceased had organised themselves and came to Thozhukkal junction to attack any of the accused. Even D.Ws.1 and 2 have no case that the deceased or P.W.1 had attacked the assailant stated by them. In the circumstances, we do not find any importance or consequence for the statement in Ext.P3 about meat particles in the stomach of the deceased.
26. Referring to Exts.P1(b) and P1(c) where it is stated by C.W.28 that a few buttons on the shirts worn by P.Ws.1 and 2 were either broken or missing and the evidence of P.W.13, the investigating officer it is contended that P.W.1 and the deceased suffered injuries in CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 26 :- a scuffle and not as stated by P.Ws.1 to 4. P.W.13 stated that he learnt that P.Ws.1 and 2 lost the buttons on their shirts in a scuffle. That statement of P.W.13, in our view is not admissible in evidence. We notice that learned Additional Sessions Judge has permitted such inadmissible evidence to be brought on record while P.W.13 was in the box. For eg., P.W.13 in his cross-examination (obviously in answer to the questions put by the defence counsel) stated thus:
"Investigation did not reveal that the accused had left any of the weapons used for the crime at the place of occurrence....."
"I learnt that C.Ws.1 and 2 (i.e. P.Ws.1 and 2) lost the buttons on their shirts in a scuffle....."
".........My investigation did not reveal that accused No.2 had demanded to witness Sanal Kumar to pay damages for breaking the serial lights........"
".........Investigation revealed that at the very start of the incident itself, there was (wordy) altercation and those who were present left the place........"
CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 27 :- "(Q) Your investigation revealed that the incident occurred only near the Chapel?
A. Yes"
It was impermissible to bring the result of investigation conducted by P.W.13 into evidence, reason being that the Investigating officer when he is not a witness to the matter he deposes about, gets such information in the course of investigation either by questioning the accused or witnesses under Sec.161 Cr.P.C. or by drawing his own inferences from what he saw or heard. The inference drawn by him is not admissible in evidence. So far as the information collected by questioning persons acquainted with the facts of the case under Sec.161 Cr.P.C. is concerned, the statement recorded under that provision could be used only for the purpose mentioned in Sec.162 Cr.P.C., i.e. to contradict the maker when he is called as a witness for the prosecution and not otherwise. Hence the above said statements made by P.W.13 in his evidence cannot be looked into. Trial courts must alert themselves about the extent to which the statements recorded under Sec.161 Cr.P.C. could be used. But as pointed out supra, statements in Exts.P1(b) and P1(c) about what C.W.28 saw - breakage of portion of a button on the shirt of P.W.1 and loss of three CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 28 :- buttons on the shirt of P.W.2 - can be taken into consideration. That is not sufficient to hold that there was any scuffle between P.Ws.1 and 2, the deceased and the assailant. Remember, even D.Ws.1 and 2 have no case that there was any scuffle at the scene of occurrence involving P.W.1, the deceased and the assailant.
27. According to the prosecution, M.O.1 was recovered by P.W.13 on the information given by the first accused. Exhibit P6 is the mahazar for recovery of M.O.1. P.W.9 is an attester in Ext. P6. It is contended by the learned counsel, as admitted by P.Ws.9 and 13 that P.W.9 had attested two other mahazars also prepared by P.W.13 on the day (18.5.1998) on which Ext.P6 was prepared. Further contention is that even as per the evidence of P.Ws.9, 13 and Ext.P6, recovery was from an open place accessible to all and hence the recovery does not come within Sec.27 of the Indian Evidence Act (for short, "the Act").
28. That, P.W.9 had attested two other mahazars also on the same day is not by itself a ground to disbelieve him. P.W.9 is residing near Thozhukkal junction and according to P.W.13, came to the places where those mahazars were prepared on his own. That is not an unusual conduct sufficient to think that P.W.9 is a planted witness. As per Ext.P6 and the evidence of P.Ws.9 and 13, accused No.1 had CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 29 :- produced M.O.1 from among the growth of grass in a canal near a culvert in the paddy field. P.W.9 stated that the said place is about 50-60 metres away from the house of one Augustine and that there are other dwelling houses also. For the application of Sec.27 of the Act, it makes no difference that the discovery was from an open place so far as the object discovered was not exposed to public gaze or sight by others. In this case, evidence is that M.O.1 was kept among the growth of grass in the canal. As such, the contention that the place was accessible to all and hence the discovery will not come under Sec.27 of the Act cannot stand. But we notice from Ext.P6(a), the relevant portion of the statement given by accused No.1 which led to the discovery and the evidence of P.W.13 that there is no mention of authorship of concealment of M.O.1. In the absence of evidence or admission by accused No.1 that he had kept M.O.1 at the place wherefrom it was recovered as per Ext.P6, that recovery cannot be brought under Sec.27 of the Act. But the conduct of accused No.1 producing M.O.1 is relevant and admissible under Sec.8 of the Act. It is true that M.O.1 or for that purpose any of M.Os.2 to 12 were not sent for chemical examination. P.W.13 stated that he had asked his senior officer to do that. Be that it may, M.Os.1 to 12 were not examined in the laboratory for traces of human blood. When there is acceptable CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 30 :- evidence regarding the crime, failure to subject material objects for chemical examination is not fatal, as held by the Apex Court in Baleshwar Mandal v. State of Bihar (AIR 1997 SC 3471). P.Ws.1 to 4 have identified M.O.1 as the weapon of offence. P.Ws.1 and 2 are the injured. They suffered injuries with M.O.1. That, P.W.1 had identified M.O.1 as the weapon of offence at the time of the incident itself is clear from Exts.P1 (first information statement) and P2 (wound certificate) also.
29. It is contended that all the injuries on the deceased are not explained. According to the learned counsel, injury Nos.5 to 8 stated in Ext.P3 (postmortem certificate) are not explained. For that purpose, we refer to the evidence of P.W.7 who conducted the postmortem examination. She was of the opinion that injury Nos.5 to 7 (abrasions) could be caused by falling on the ground. P.Ws.1 to 4 stated that on receiving the blow with M.O.1, deceased ran towards south. P.Ws.3 and 4 stated that accused No.1 followed the deceased and again gave blow with M.O.1. According to P.Ws.1 to 4, deceased collapsed on the road. l This evidence coupled with the opinion of P.W.7 sufficiently explains injury Nos.5 to 7. So far as injury No.8 is concerned, that was a healing injury and not inflicted in the incident referred to in this CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 31 :- case.
30. We have considered the evidence. P.Ws.1 and 2 who suffered injuries have identified accused No.1 as the assailant of themselves and the deceased. P.Ws.3 and 4 have explained their presence at the scene of occurrence. They also identified accused No.1 as the assailant. There is no reason why P.Ws.1 to 4 and more particularly P.Ws.1 and 2 should absolve the real culprit and falsely implicate accused No.1. There is no reason to think that it is a case of mistaken identity of the assailant by P.Ws.1 to 4. Even as per the version of D.W.1, accused Nos.3 to 5 were present near the scene of occurrence at the relevant time. Facts, evidence and circumstances justify the evidence of P.Ws.1 to 4. The mere fact that as admitted by P.Ws.1 to 4 also themselves and the deceased were activists or sympathisers of the same political party in the facts and circumstances of the case is not sufficient to disbelieve them. On the facts, evidence and circumstances on record, we are not impressed by the evidence of D.Ws.1 and 2 and therefore we reject the same.
31. Accused Nos.3 to 8 are roped in by virtue of their allegedly being members of the unlawful assembly with accused Nos.1 and 2 and as it was in prosecution of the common object of that assembly that accused No.1 inflicted injuries on P.Ws.1, 2 and the deceased. CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 32 :- (Since the appeal to the extent it concerned accused No.2 has abated, we are not required to decide whether accused No.2 is involved in the unlawful assembly). Once unlawful assembly and common object of that assembly are proved, it is true that it is not necessary to prove the overt acts of each member of the assembly. Normally, a person is liable for what he does and not for what others do. Section 149 of the Code creates an exception to that rule and makes a member of the unlawful assembly vicariously liable under circumstances mentioned therein. For Sec.149 to apply there must be an unlawful assembly, the offence must have been committed by a member of that assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of the common object. The expression "in prosecution of the common object" is equivalent to "in order to attain the common object" as held by the Apex Court in State of Punjab v. Sanjiv Kumar (AIR 2007 SC 2430). The word, "knew" occurring in Sec.149 of the Code indicates the state of mind at the time of commission of the offence while the word "likely" imports something more than a mere possibility. It must be shown that each member of the assembly was aware of the act of others and they shared the common object. CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 33 :- The offence committed must have a perceptible nexus with the common object. Mere presence of the accused at the place of occurrence is not sufficient. Common object is an inference to be drawn from the proved circumstances. Inference regarding knowledge on the part of the members of the unlawful assembly regarding the common object can reasonably be drawn from the nature of the assembly, nature of weapons used by the members of the assembly, manner and sequence of attack and settings or behaviour at, before or after the incident. If knowledge may not reasonably be attributed to the members of the assembly then their liability for the offence committed during the occurrence does not arise (See Gajanand and Others v. State of Uttar Pradesh, AIR 1954 SC 695 and Munivel v. State of Tamil Nadu, (2006) 9 SCC 394). We shall consider whether accused Nos.3 to 8 are accordingly liable for the act of accused No.1.
32. As per police charge-sheet the accused carried weapons and waited for the deceased at Thozhukkal Junction on 2.5.1998 from 5.00 p.m. onwards. Learned Additional Sessions Judge stated in the charge that accused Nos.1 to 8 formed unlawful assembly at Thozhukkal junction on 2.5.1998 at 7.15 p.m. and committed the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 34 :- offences as above stated. According to the prosecution, accused No.2 was carrying a short stick while accused Nos.4 and 5 were carrying punch blocks. P.W.1 deposed that when the accused surrounded them he learnt that all the accused were carrying weapons but he did not say what all weapons accused Nos.2 to 8 were carrying. In Ext.P1 what P.W.1 said is that accused No.1 carried "Akkathy" (identified as M.O.1) while accused No.2 carried short stick and other accused carried punch blocks, etc. P.W.4 stated that accused No.2 was carrying a short stick while accused Nos.4 and 5 carried wooden (punch) blocks. P.Ws.2 and 3 did not say that any of accused Nos.2 to 8 were carrying weapon. P.Ws.12 and 13 searched the houses of accused Nos.2 and 5 to 8 for weapons but nothing could be recovered. It is difficult to think that as claimed by the prosecution all the accused, carrying weapons were waiting at a busy junction from 5.00 p.m. onwards with the possibility of somebody noticing that and informing the police or at least, the accused thinking so. There is no evidence to show that the accused were waiting at the junction from 5.00 p.m. onwards. If accused No.2 were carrying a short stick, there was no necessity for him to exhort accused No.1 to do away with the deceased. Instead, himself could have assaulted the deceased with the short stick. It is not the case of the prosecution that at any point CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 35 :- of time, accused No.2 or any of accused Nos.3 to 8 assaulted the deceased or P.Ws.1 and 2 or made an attempt for that. Accused No.1 assaulted P.W.1 with M.O.1 only when P.W.1 tried to intervene when accused No.1 assaulted the deceased. Accused No.1 assaulted P.W.2 when P.Ws.1 and 2 and the deceased were running away from the scene of occurrence. It is not the case of P.Ws.1 to 4 that they had seen M.O.1 in the hands of accused No.1 before the incident. According to P.Ws.1 to 4, it is after the accused surrounded P.Ws.1, 2 and the deceased that they noticed M.O.1 in the hands of accused No.1. There is no convincing evidence to show that accused Nos.4 and 5 (we are not referring to accused No.2 as the appeal to the extent it concerned him stands abated) were carrying punch blocks or that any of accused Nos.3 to 8 knew that accused No.1 was carrying M.O.1 and was likely to assault the deceased or P.Ws.1 and 2. The possibility of accused No.1 taking out M.O.1 suddenly and assaulting the deceased and P.Ws.1 and 2 who intervened, with it cannot be ruled out. It is pertinent to note in this regard that none of P.Ws.1 to 4 stated that when P.Ws.1, 2 and the deceased ran towards south along the road, any of accused Nos.2 to 8 accompanied accused No.1 who followed P.Ws.1, 2 and the deceased and inflicted injuries on P.W.2 and again on the deceased. We do not forget that according to CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 36 :- P.Ws.1 to 4, accused Nos.3 to 8 also had surrounded P.Ws.1, 2 and the deceased and it was then that accused No.1 assaulted the deceased and P.W.1 with M.O.1. We do not think from the evidence that P.Ws.1, 2 and the deceased were encircled in such a way that they were unable to move out of it and as pointed out earlier, there is nothing to show that accused Nos.3 to 8 knew that accused No.1 was carrying M.O.1 and that accused Nos.3 to 8 had reason to think that accused No.2 would make such a call to accused No.1 and accused No.1 would act as done by him. The attempt of accused Nos.3 to 8 may have been to persuade or even insist the deceased to compensate the loss caused to accused No.2. That, accused No.4 asked P.W.10 to settle the issue immediately before the incident indicates that possibility.
33. On the facts, evidence and circumstances of this case, we are unable to hold that any of accused Nos.3 to 8 carried weapons, formed unlawful assembly with accused No.1, shared common object with accused No.1 to cause injuries to P.Ws.1 and 2 or cause the death of the deceased and in prosecution of that common object, wrongfully restrained the deceased and P.Ws.1 and 2. We therefore accept the contention of the learned counsel that circumstance did not warrant invocation of Sec.149 of the Code against accused Nos.3 to 8. In the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 37 :- circumstances, conviction of accused Nos.3 to 8 of the offences charged against them and the sentence awarded to them cannot be sustained. Conviction and sentence of accused No.1 for the offences punishable under Secs.143, 147, 148 and 341 read with Sec.149 of the Code cannot also be sustained.
34. What remained for consideration is whether the act of accused No.1 in inflicting injuries on the deceased which resulted in his death amounted to the offence of murder. Learned counsel contends that circumstances do not warrant a conclusion that accused No.1 intended to cause the death of the deceased or to cause such bodily injury as he knew is likely in the ordinary course to cause the death. According to the learned counsel the offence committed by accused No.1 would only fall under Sec.304, Part II of the Code.
35. In deciding the issue raised, the attending circumstances are to be looked into. Nature and site of injury and the weapon used are relevant for consideration. Injury No.1 in Ext.P3 (postmortem certificate) is:
"Incised wound 3.5x1.5 cm, obliquely placed on the left side of neck, is lower inner end 4 cm outer to middle and 5.5 cm below CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 38 :- jaw bone and showed a tailing of 0.3 cm length. The lower end of sternomastoid muscle 7 cm above its lower attachment, the internal jugular vein (except for a tag of tissue 0.2 cm broad at the outer margin) oesophagus and the left borders of sixth and seventh cervical and first thoracic vertebra 4.5x0.5x1 cm were found cleanly cut. The wound was directed backwards, downwards and to the right for a depth of 3.1 cm. The spinal cord underneath vertebral injury was intact".
According to P.W.7 who conducted the autopsy and issued Ext.P3, injury No.1 is sufficient in the ordinary course to cause the death. Nature of that injury shows that it was inflicted with sufficient force. We must presume that accused No.1 was aware of the consequence of his act. When a deep injury is inflicted with a deadly weapon like M.O.1 on a vital part of the body followed by further assaults, even when the deceased attempted to run away and save himself, requisite intention on the part of accused No.1 to cause the death or to cause such bodily injury as he knew is likely to cause the death must be attributed to him. We therefore hold that the act of accused No.1 CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 39 :- amounted to culpable homicide amounting to murder punishable under Sec.302 of the Code. The act of accused No.1 in voluntarily causing hurt of P.Ws.1 and 2 with M.O.1 is punishable under Sec.324 of the Code. Sentence awarded to accused No.1 is also legal and proper. We confirm the conviction and sentence of accused No.1 under Secs.324 and 302 of the Code.
These appeals are disposed of in the following lines:
(1) Crl.Appeal No.474 of 2005 is allowed in part as under:
(i) Conviction of appellant No.1/accused No.1 for the offences punishable under Secs.143, 147, 148 and Sec.341 read with Sec.149 of the Code are set aside and he is acquitted of those charges.
(ii) Conviction and sentence of appellant No.1/accused No.1 under Secs.324 and 302 of the Code are confirmed.
(iii) Conviction and sentence of appellant Nos.2 and 3/accused Nos.5 and 6 under Secs.143, 147, 148, 341, 324 and Sec.
302 read with Sec.149 of the Code are set aside and they are acquitted of all the charge against them. They shall be set at liberty forthwith if not required to be detained otherwise.
(2) Crl.Appeal No.515 of 2005 to the extent it concerned appellant No.1/accused No.2 stands abated consequent to his death.
(i) Crl.Appeal No.515 of 2005 to the extent it concerned CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 40 :- appellant Nos.2 and 3/accused Nos.3 and 4 is allowed. Conviction and sentence of appellant Nos. 2 and 3/accused Nos.3 and 4 under Sec.143, 147, 148, 341, 324 and Sec.302 read with Sec.34 of the Code are set aside and they are acquitted of all the charge against them. They shall be set at liberty forthwith if not required to be detained otherwise.
(3) Crl.Appeal No.1058 of 2005 is allowed. Conviction and sentence of appellants/accused Nos.7 and 8 under Secs.143, 147, 148, 341, 324 and Sec.302 read with Sec.149 of the Code are set aside and they are acquitted of all the charge against them. They shall be set at liberty forthwith if not required to be detained otherwise.
A.K. BASHEER, JUDGE.
THOMAS P.JOSEPH, JUDGE.
vsv