Shanto @ Shantappan vs State Of Kerala on 8 July, 2021

[Cites 17, Cited by 0]

Kerala High Court

Shanto @ Shantappan vs State Of Kerala on 8 July, 2021

Political ideology occupies an exalted place in civil society, but it should enable that society to reach out to higher ideals and sublime values, not lead to mindless killing, plunging families into grief and holding that society itself to ransom. We refrain from referring to the political colours of the parties since, in death, affiliations and ideologies fade into obscurity. Suffice it to say that a young man was brutally hacked to death by his political rivals. On an Onam day, when the people of the State; as legends would have, welcomes a most noble and virtuous King of yore, in whose regime, it is said there existed no dishonesty or deceit; the young man was called out to the streets, from his friend's house, brutally attacked with lethal weapons and dismembered, literally butchering him alive.

2. The charges were under Sections 120B, 143, 147, 148, 324, 307, 302, 212, 109, 201 read with 149 of the Indian Penal Code. There were 18 accused arrayed before the Sessions Court, of which accused 1 to 4 & 7 Crl.A.No. 954 of 2016 - 3 - alone stood convicted. All of them were handed down sentences of imprisonment for life, fine of Rs.75,000/- with default rigorous imprisonment (RI) for six months under Section 302, RI for six months and fine of Rs.20,000/- with default R.I. for two months for Section 324 read with 149 IPC, simple imprisonment (SI) for one month and fine of Rs.500/- with a default sentence of SI for 15 days under Section 341, SI for three months and fine of Rs.5,000/- with default SI for one month under Section 143 and RI for four months and fine of Rs.10,000/- with default SI for two months under Section 148 IPC. The prosecution examined PW1 to PW23 and marked Exts.P1 to P99 [100 in number] and material objects MO1 to MO27 were also marked. The defence marked D1 to D13. The State has not filed any appeal from the acquittals ordered by the Sessions Court. In the present appeal, we are only concerned with the conviction and sentence of A1 to A4 and A7. The larger conspiracy said to have been hatched with the other accused and the presence of some of the others have been disbelieved by the Sessions Court.

3. Learned Senior Counsel at the outset urge that there is absolutely no evidence to convict the accused. The theory of a conspiracy, at the behest of a political party, in which the eighteen accused were said to have actively participated has not been established by the prosecution. Some of the witnesses paraded before Court Crl.A.No. 954 of 2016 - 4 - were disbelieved and many among the accused were acquitted. The appellants were found guilty only on the sole eyewitness testimony of PW1. PW1's presence is very doubtful and he is a planted witness, just as the accused are arrayed at the dictates of the political overlords. PW1 and the deceased belonged to the same political party and there was alleged, an attack against PW1 on the previous day. The appellants were wrongly accused of the earlier incident and it was only to settle scores that the appellants were included in the array of accused. The appellants were not involved in the incident and there is no scientific evidence to connect them to the crime. The incident occurred in a residential area on the afternoon of a festival day and PW1 states that many of the residents gathered, hearing the threats shouted by the aggressors and the cries of the victim. However, none of the residents were made witnesses by the prosecution, thus totally avoiding independent testimonies of the incident. The presence of PW1 is highly doubtful and the expert opinion regarding his injuries throw further suspicion on his narrative. The injuries seen on the body of PW1 were marginal and could have been self-inflicted, just to establish his presence at the scene of occurrence or suffered on the previous day. The trial Court has unnecessarily laboured on the digital data produced by the prosecution to find the presence of PW1 at the scene of Crl.A.No. 954 of 2016 - 5 - occurrence ignoring the fact that he is a resident of the same locality. More pertinently, the investigation was confined to the mobile numbers of the deceased and PW1. There was no effort to ferret out the mobile number of A7 who is said to have called PW1 just before the incident, asking him to send out the deceased to the midst of the waiting assailants. A1 and A2 were taken into custody when they were rescued by the Police from a mob attack, about 7km distant from the scene of occurrence. The presence of blood in their dress was their own and nothing connects them to the crime as discernible from the chemical analysis carried out. The appellants are wrongfully convicted and it is prayed that they be acquitted of the charges.

4. Learned Senior Public Prosecutor, Shri.Alex.M.Thombra meticulously took us through the evidence, which according to him establishes the crime to have been committed by the appellants herein. Though the conspiracy has not been established, for which reason the other accused were acquitted, the case of the prosecution against the appellants holds good. They are the persons who were seen to have committed the overt acts and there is no escape from the fact that the brutal attack on the victim was by A1 to A4. A7 called the victim out, from his friend's house, to be meted out a gruesome end to his life. The learned Prosecutor also relies on the recoveries Crl.A.No. 954 of 2016 - 6 - and the scientific evidence to bring home the guilt of the accused-appellants. The trial Court has misdirected itself in disbelieving the other witnesses, who were credible and independent, who had no axe to grind against the perpetrators of the crime. The conviction and sentence have to be upheld argues the Prosecutor.

5. The post-mortem was conducted by PW20, who marked the report as Ext. P27. The post-mortem report shows a total of 16 incised wounds (lethal-according to us), 3 superficially incised wounds, 3 lacerated wounds and 5 abrasions. Death was due to multiple incised wounds to the upper and lower limbs. We are not detailing the wounds but we cannot but mention some of them. One of the wounds (injury No. 5) on the back of the left-hand transected inner three fingers; leaving those fingers attached by a skin tag with the partial cutting of the index finger at the base, another (injury No. 10) 12 cm below the knee the outer leg bone was cut for its full thickness and the inner bone partially, yet another (injury No.11) 12cm further below where again the tendons and the outer leg bone were fully cut, a wound (injury No.12) underneath the tendons which cut the outer leg bone fully and one (injury No.13) cleanly cutting the muscles, vessels, nerves and leg bones at both ends above the left heel; dismembering him. The right leg also had seven incised wounds, on the right knee, in front of that leg, Crl.A.No. 954 of 2016 - 7 - one (injury No.16) 17 cm below knee cutting tibia to 3/4 th of its thickness, another (injury No. 17) which cut the shaft of the tibia for its full thickness, again three injuries (injuries No.18, 19 & 20) cutting tibia to its full thickness and so on and so forth. The deceased was brought to the hospital in two pieces with the left foot neatly severed from the body. The Doctor opined that injury numbers 10, 11, 13, 16, 19 and 20 described herein above would have rendered the victim immobile. The injuries as per the expert opinion were sufficient in the ordinary course of nature to cause death. The sharp weapons used for hacking and the blunt ones which caused the lacerations were shown to the Doctor who deposed that it was possible with those weapons to cause the wounds, more fully described in the report. It was elicited in cross-examination that death was due to blood loss and shock, the shock being a consequence of bleeding. That it was a homicide is beyond doubt and it can be assertively inferred that the victim was hacked to death by more than one person; the group acting in tandem and with a common object; the intention of snuffing out the victim's life. None, in their right senses, could have imagined that the victim survives the injuries inflicted.

6. The incident narrated by PW1 to the Police, is seen from Ext. P1, FIS and is as follows. On 28.08.2015 at about 3.00 p.m, along with the victim, he was having food Crl.A.No. 954 of 2016 - 8 - at his residence, when A7 called him over the mobile phone. A7 asked him to send out the victim, who was planned to be killed by 'them'. He came out of his house and saw A7, one Sandeep and another person sitting in an autorickshaw. On seeing PW1, A7 asked him to send out the victim, who was wanted by 'them' and drove off in the autorickshaw. When A7 departed, PW1 along with the victim, came out of the house and walked towards the nearby temple. At that point, six persons on three motorbikes waylaid the two. A1 was riding pillion in the motorbike ridden by A2, A3 pillion in the bike of A4 and two others in the third motorbike who alone had covered their faces with towels. A1 and A3 had two weapons each, in their hands and the pillion in the third bike had two iron pipes with him. On alighting from their respective vehicles, A1 handed over one sword to A2, as did A3 to A4 and the pillion in the third bike handed over one iron pipe to the rider. A1 shouted at the victim that he will be killed and slashed him on the head with the sword. The victim fell when PW1 intervened and then A2 aimed the sword at PW1's neck, which caused injury on his back. A3 and A4 chopped on the fallen victim's body several times, exhorting others to kill him. The masked riders who came on the 3 rd bike also assaulted the two victims with iron pipes. PW1 in a bid to escape, ran but was followed by A2 who again cut him on his back. Hearing the commotion PW4, the brother of PW1, Crl.A.No. 954 of 2016 - 9 - came out of the temple and ran to his rescue. Seeing PW4, A2 re-joined the others asking the fallen victim whether he was not dead yet, and again chopped on his body. The nearby residents were crying aloud and they came out, when the assailants, with their weapons, fled the scene in their bikes. PW1 then rushed to his house and took out his vehicle (Tavera) and brought it to the place where the victim was lying fallen. He along with Unni (PW5), Sandeep (PW9), Devadas and Lijesh (PW6) took the victim to Santhi Hospital. PW5 drove the vehicle, while the victim was bleeding profusely and was constantly asking for water. The wound on PW1's back was also bleeding. At Santhi Hospital the victim was given first aid and directed to be taken to a higher centre. The victim was then taken to Aswini Hospital where the Doctors certified him as brought dead.

7. PW1 also spoke of the earlier incident, on the previous day, when A1 to A4 along with Saleesh and Vigil attacked him with iron rods. He spoke of the respective political affiliation of himself, the deceased and the accused. The motive was spoken of as the ill will harboured by the accused, on the deceased questioning the rival party members about the destruction of a flag post. A1 to A4 were specifically named and so was A7 who was instrumental in summoning the victim onto the streets. PW1 also claimed that he can identify the masked assailants Crl.A.No. 954 of 2016 - 10 - who came in the third bike. He asserted that the three persons along with A7 were sitting in the autorickshaw, parked at a distance watching the proceedings.

8. PW1 spoke more or less in tune with the FIS and his statement to the Police. Before Court PW1 in addition to the FIS said that immediately after the incident two persons from Chembuthra came to the spot on a bike and howled. When the public gathered at the spot they departed, said PW1. PW2 and PW3 were arrayed as eyewitnesses; whose depositions were disbelieved by the trial Court. It was held that their evidence is surrounded by suspicious circumstances and their presence at the spot itself was doubtful. Their version, that they were proceeding to purchase articles for a coming festival, was disbelieved, rightly so, since, on Onam day, most of the shops will be closed. The trial Court also pertinently noticed that despite claiming to be eyewitnesses, they never approached the Police. They were questioned after a month, on 29.09.2015. We find no reason to come to a different finding especially since their presence was not mentioned by PW1 at the time of First Information and it was neither conveyed to the Police or the Magistrate when statements were recorded.

9. PW6 spoke about the deceased having called him just before the incident, to convey the threats levelled by A7 and later called to inform him that the deceased was Crl.A.No. 954 of 2016 - 11 - stepping out of the house to see A7, who was standing outside. This was disbelieved for the crucial calls from the deceased to the witness was omitted to be mentioned by PW6, before the Police and before the Magistrate. PW8, before Court, deposed that he saw two persons (A1 & 2) holding swords and having blood on their dress climbing into CW15's autorickshaw along with A7. PW8 was questioned by the Police almost two months after the incident and his version of the flight of A1 and A2 was quite contrary to the statement of PW1, who saw them escaping from the spot on the bikes in which they came there. PW9 heard about the incident and rushed to the spot to see A1 and A2 running away, which again was contrary to the evidence of PW1 . PW15 was the witness of Ext.P18 to Ext.P21 recovery mahazars MO-4 (dress of A3), MO-11 (dress of A7), MO-26 (dress of A4) and MO-27 (mat taken out by A7). He admitted his allegiance to the political party of PW1 and the deceased. The Court found it very unnatural for the Police to have taken this witness along with them in making various recoveries from different places. Further except for the mat, which was used in the autorickshaw, all the other MOs; dresses used by different accused, were marked as those used by the respective accused and not as recovered by them. PW15 was not an eye-witness to the incident and the recovered objects stated to have been used by the accused cannot be relied on. As was held by Crl.A.No. 954 of 2016 - 12 - the trial Court we too find it difficult to rely on the evidence of PWs: 2,3, 6, 8, 9 and 15 to that extent. This, however, does not result in absolving the accused since there is one crucial eye-witness, relied on by the prosecution, whose presence according to the accused is very doubtful on the spot.

10. PW1 as we noticed, spoke in tune with the FIS but made certain deviations one of which was concerning PW2 and PW3; whose evidence has to be eschewed totally. Then, PW1 before Court named two other persons having been involved in the incident, ie: Vibin Babu(A6) and Kannan(A5). These two were the persons who were said to have been wearing masks and travelling on the third bike, both of whom were acquitted by the trial Court. In the FIS, PW1 only said that he could identify on sight the masked riders in the third bike; not being acquainted with them. But later he named them, contrary to the first version. However, it is pertinent that concerning A1 to A4 and A7; PW1 stuck to his earlier version, with minor variations concerning the threats levelled by the assailants and the statements made by them in the course of the incident. These are only vague recollections made of an incident; which definitely would have left PW1 shaken and the minor variations, we find to be not very material. The essential elements of A7 having called out the victim, A1 to A4 having waylaid them and brutally Crl.A.No. 954 of 2016 - 13 - attacked the victim while chasing away PW1, was deposed by him in tune with the FIS and statements under 161 and 164.

11. The trial Court has very elaborately considered PW1's presence at the scene of occurrence on which hinges the veracity of the prosecution case. The learned Sessions Judge has relied on the call details of the mobile numbers subscribed by PW1 and the deceased, produced at Ext.P24 by PW17, to find their presence in the locality. Ext.P24 indicates the number 8086861654 having been subscribed to by PW1 and activated as of 06.06.2011. A call from 9447463571 came to PW1's number at 15:36:27 hours. The call details of the deceased, in 9745751397 also showed calls at the crucial time. The learned Sessions Judge referred to the Cell ID, which identifies the Tower intercepting the calls, to find PW1's presence along with the deceased, at the scene of occurrence. However, we do not see any evidence as to the exact location of the Tower whose number has been extracted by the trial Court. No questions were asked to PW17 as to the location of the said Tower through which the signals of the call were transmitted. Further, even if the location was specified it only indicates both the mobiles being in the same area and does not place the subscribers in the exact spot, since every Tower has coverage over a larger area. We agree with the learned Senior Counsel that the call details produced cannot corroborate the presence of Crl.A.No. 954 of 2016 - 14 - PW1 in the scene of occurrence as put forth by the prosecution.

12. PW1 however graphically described the incident and named four persons, the appellants 1 to 4 herein as having participated in the attack on himself and the deceased. A7 called the deceased out with the specific intention of facilitating the design of the assailants. The discrepancy concerning the time as projected by the prosecution has been correctly dealt with by the trial Court; it is only 25 minutes. In the FIS the time of occurrence was stated as 3.45 p.m which was corrected as 4.09 p.m by Ext.P90 correction statement. According to PW1 after the incident the deceased along with PW1 and others were taken first to Santhi Hospital and then a higher centre; Aswini Hospital at Thrissur. Ext.P30 is the wound certificate issued in the name of PW1. The date and hour of examination is seen as 5.25 p.m on the very same day. The history has been stated as assault with swords and sticks by eight persons at Vasupuram, Kodakara on 28.08.2015 at 3.30 p.m. Linear abrasions were seen on the back of chest at mid-line and horizontal abrasions over left scapula with a black eye (left) and bleeding from the left ear. The examination of PW1 was immediately after the incident and the history spoken of tallies with his later version to the Police.

13. PW21 is the Doctor who examined PW1. The Crl.A.No. 954 of 2016 - 15 - Doctor's evidence does not support the version of PW1 is the specific contention raised by the appellant. It is argued that the wounds were so negligible and could not have been caused when cutting with a sword which would have resulted in bleeding injuries. It is also pointed out that PW1 was discharged on the next day, on his request and he was not willing to have a CT scan done, which conduct is suspicious. PW21 in cross-examination indeed stated that except for ear-bleeding the other injuries are simple in nature. It was also affirmed that the ear- bleeding and black eye could be on account of injuries sustained on the previous day. The abrasions and lacerated wounds were stated to be not bleeding injuries and the Doctor could not opine on the age of the injuries. We do not think that the opinion of the Doctor throws any suspicion as to the injuries caused on PW1 in the incident. The deposition of the Doctor was recorded almost ten months after the wound certificate was issued. The injuries on the shoulder and the back, though a minor laceration and abrasions validate the version of PW1 that A2 had first aimed at his neck and then on his back, while he was running away. The weapon as can be seen from the injuries could only have nearly graized the body of PW1. It is only natural that amid the gruesome incident, when his friend was being mercilessly cut up, PW1 would have thought, in the spur of the moment, that his injuries also Crl.A.No. 954 of 2016 - 16 - were serious. The abrasions and lacerated wound would have singed his skin and he would not have had the time to verify the severity. In the ensuing shock, he also would not have been able to drive, as stated by him. The FIS was also given on 28.08.2015 at night from the hospital at 10.40 p.m where PW1 was admitted. The FIR(Ext.P47) was registered at 1.15 a.m on 29.08.2015 which reached the Court at 1.25 p.m of that day. We do not see any chance of a conscious deliberation on the part of the prosecution or the witnesses to rope in unconnected people, as accused in the crime, merely based on their political affiliation.

14. In addition to this, PW4 is a natural witness, the priest of the temple, just in front of which the incident occurred. PW4 is the brother of PW1 and he said that he saw his brother being chased by two persons with a sword. He also identified A1 and A2 as the persons who chased PW1. PW5, Unni, who helped PW1 to carry the deceased to the vehicle and drove the vehicle, attests to the presence of PW1 at the scene of occurrence, having come to the spot immediately after the incident. He is a driver by profession and was informed that the deceased was lying fallen near the temple and there is nobody to take him to the hospital. When he reached the spot in his bike he saw the deceased being carried into PW1's vehicle by PW1 and two others. PW1 due to his injury asked PW5 to drive. He also spoke of the deceased and PW1 being taken Crl.A.No. 954 of 2016 - 17 - first to Santhi Hospital where he developed dizziness and came back asking the others to take the injured in an ambulance. In cross-examination, it was pointed out that there is an omission in the statement to the Police about PW1 having asked him to drive the vehicle due to the injuries on PW1. We do not think that the omission is so material as to disbelieve the version of PW5.

15. PW6 though disbelieved on his statement of the deceased having called him just before the incident, his further evidence corroborates that of PW1 and PW5. It is trite that the maxim 'falsus in uno, falsus in omnibus' does not apply in India. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749: 2003 SCC (Cri) 1918, at page 764 :

25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P AIR 1957 SC 366).

26. The doctrine is a dangerous one especially in Crl.A.No. 954 of 2016 - 18 - India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P(1972 (3) SCC 751) and Ugar Ahir v. State of Bihar(AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P (AIR 1954 SC 15) and Balaka Singh v. State of Punjab ((1975) 4 SCC 511). As observed by this Court in State of Rajasthan v. Kalki ((1981) 2 SCC 752) normal discrepancies in the evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and Crl.A.No. 954 of 2016 - 19 - those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person.

Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar ((2002) 6 SCC 81), Gangadhar Behera v. State of Orissa ((2002) 8 SCC 381) and Rizan v. State of Chhattisgarh ((2003) 2 SCC 661).

Though the witness has been disbelieved on one aspect so much of his evidence, which can be corroborated otherwise, can definitely be looked into. PW6 stated that he came to the spot after the victims were taken to the hospital. He was informed that they were taken to Santhi Hospital to which place he rushed. He joined PW1 and others who had taken the deceased, at Santhi Hospital from where he drove the vehicle since PW5 developed dizziness. So much of the evidence of PW6 corroborates the version of PW1 and PW5. Similar is the deposition of PW8 who was disbelieved on his version of A1 and A2 having been seen running with swords and fleeing in an autorickshaw along with A7. However, he states that he saw PW1 running out of the temple and taking out his car. He also saw the deceased lying fallen with injuries, who was carried into the vehicle by Devan (mentioned as Devadas in FIS), Sandeep (PW9) and Unni (PW5) which further corroborates the Crl.A.No. 954 of 2016 - 20 - evidence of PW1 and PW5. PW9 is Sandeep who along with PW1 and PW5 carried the deceased into the Tavera vehicle; took him first to Santhi Hospital and then to the higher centre. On this particular aspect, there was no worthy cross-examination of PW9. In such circumstances, we find that the prosecution having established the presence of PW1 in the scene of occurrence. The version of the specific attack made on PW1, is a cut to the neck and back with a sword, which could have resulted in grievous injuries. The fact that only simple injuries were caused cannot by itself result in doubting the veracity of PW1's testimony. The opinion of PW21 Doctor is also that a stab injury could have been more serious. The assailants even according to the prosecution never had an intention to harm PW1. There was no evidence of PW1 being subjected to a stab by the accused. PW1 was attacked only when he sought to interfere in the brutal attack on the deceased. The attempt of the assailants was to frighten PW1 and chase him away; on which finding the trial Court has rightly acquitted the accused on the charges of attempting to murder PW1 and causing hurt to him, restricting the conviction under S.324 for the minor injuries caused to PW1. The presence of PW1 having been established we have to necessarily treat him as an eye-witness; who named the appellants herein and spoke about their specific involvement in the murder of his friend, who was butchered Crl.A.No. 954 of 2016 - 21 - alive in front of his eyes. There is no material evidence to doubt the credibility of PW1 and his version on many aspects, though not on the actual attack, is corroborated by the witnesses whose evidence we discussed above.

16. As for the recoveries made, we only look at those carried out on the confession statement made by the appellants herein. Ext.P22 confession statement of A1 speaks of a billhook having been thrown away into the grass of a nutmeg garden. Ext.P23 confession by A2 also spoke of throwing a sword into the very same nutmeg garden. PW16 is the mahazar witness who saw A1 and A2 being brought to the place of concealment. A1 took out the billhook from the western side of a motor shed from amongst the grass growing there. A2 took out the sword from the south of a pond in the very same property. They were marked as MO1 and MO6 and the mahazars as Exts.P22 and P23. As for the bikes recovered, we do not place any reliance on the same since only the make and not the identification marks or registration numbers were spoken of by PW1. We also do not place any reliance on the recoveries made where the attesting witness was PW15. Suffice it to notice that MO1 and MO6, the weapons recovered at the behest of A1 and A2 showed the presence of human blood on chemical analysis as revealed from Ext.P45, though the grouping was inconclusive.

17. The trial Court had found that the recovery Crl.A.No. 954 of 2016 - 22 - of MO6 by A2 cannot be relied upon to connect the accused with the crime since PW1 had identified A2 having used MO4 sword. We are unable to accept the said finding because admittedly as per the evidence, A1 to A4 came in two bikes and the pillion riders had two swords each in their hands. Obviously, when the four assailants returned, the people who were driving the bike would not hold on to the weapon. There is also no evidence that the four assailants fled the scene on the bikes in the same manner in which they came there. There was admittedly use of four weapons and PW1 identified each of them. The weapon thrown away by the accused need not necessarily be the one used by that accused. MO6 was identified by PW1 as that used by A3. In such circumstances, the recovery of MO6 weapon by A2, which was identified by PW1 as having been used to attack the deceased, connects A2 with the concealment of a weapon used in the crime; in which his presence has been identified clearly by the eye-witness.

18. The dress worn by A1 and A2 (MO9 and MO10) were seized at the time of arrest on the same day, identified by PW1. They were first rescued by the Police from a mob, holding them up, within the limits of Kodakara Police Station the jurisdiction of which borders the area coming under Vellikulangara Police Station. The murder occurred in the Vellikulangara Police Station jurisdiction. PW31 who was on duty at Kodakara Police Crl.A.No. 954 of 2016 - 23 - Station on 28.08.2015 spoke about A1 and A2 having been held up by the people of the locality. Their dress was torn and it had bloodstains. Since they were seen fatigued, they were taken to a hospital for examination. A1's wound certificate is Ext.P26 and A2's Ext.P26(a). The certificates do not indicate any bleeding injury. PW33 who later arrested A1 and A2, on being informed of their involvement in the murder, also spoke of bloodstains in the dress of both the said accused. Pertinent also is the fact that PW31 spoke of tension prevailing within the limits of the neighbouring Police Stations of Vellikulangara and Kodakara, due to the rivalry, between the political parties to which the accused and the deceased respectively owed allegiance. The local people knew of such tensions prevailing due to political rivalry and the news of the bizarre murder of a young man of the locality would also have spread like wildfire. The local public would have obstructed the movement of A1 and A2 on hearing rumours of their involvement in the murder; which was also evidenced by the bloodstains on their dress.

19. Concurring with the trial Court we find A7 having called out the deceased from the house of PW1, where he was in the company of PW1, with the specific purpose of facilitating the attack on the deceased by the assailants, who were on their way to the scene of occurrence. PW1 specifically spoke of A7 having asked for Crl.A.No. 954 of 2016 - 24 - the deceased to be sent out so that they can carry out their plan of murder. A1 to A4 has inflicted grievous injuries on the deceased with lethal weapons dismembering him and cutting up his upper and lower limbs resulting in; from the injuries as noted by us, a dastardly and cold- blooded murder. The accused have thereby committed an offence punishable under S.302 and concerning the injuries caused on PW1, who attempted to interfere and was chased away, committed an offence under S.324. Though the larger conspiracy under S.120B has not been proved, accused 1 to 4 and 7 being members of the unlawful assembly, perpetrated violence with deadly weapons, in prosecution of the common object of the assembly, to cause the murder of the deceased. The accused-appellants are liable to be punished under S.143, 147 and 149 also.

We find the conviction to be proper and affirm the sentences by rejecting the appeal.

Sd/-

K.VINOD CHANDRAN, JUDGE Sd/-

ZIYAD RAHMAN A.A, JUDGE Sp/jma

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