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sentence against A1 to A3 and A11 and A12 was confirmed.

Additionally, A3 was convicted and sentenced under Section 5 of the Explosive Substance Act,1908.

FACTS

2. For the sake of brevity and for maintaining continuity the accused persons are referred as per their sequence in the trial.

3. The factual matrix of the case are that on 01.03.2002, Rashtriya Swayam Sevak Sangh/Vishva Hindu Parishad (in short ‘RSS/VHP’) had called for a hartal. The Hartal led to clashes between members of the Communist Party of India (M) (in short ‘CPI (M)’) and RSS. A group of 11 persons, afraid of the mob led by CPI(M), hid and stayed near a shed situated near the Meloor river. At midnight, they saw 11 persons coming from the eastern side and 5 persons coming from the northern side carrying deadly weapons like, axe, dagger and chopper. All the 11 but for the 2 deceased persons were alerted and rushed towards the river to save themselves. The two deceasednamely Sunil and Sujeesh, were asleep and thus, the mob inflicted fatal injuries on them. The body of Sujeesh was taken to a hospital in Thalassery where he was pronounced dead and based on the statement of PW-1, FIR No. 53/2002 dated 02.03.2002 was registered under Section 43, 147, 148, 341, 506(ii), 307, 302 r/w 149 IPC & Section 3, 5 of Explosive Substances Act, 1908 at P.S. Dharmadam on receipt of the report investigating agency was set in motion. PW-19 conducted the investigation and on 02.03.2002 body of the 2nd deceased person Sunil was found at a marshy land near the spot of occurrence in the morning. The inquest of both the dead bodies was conducted and inquest reports were prepared. Subsequently, post-mortem was done on the same day. A1, A9 and A11 were arrested on 06.03.2002. Pursuant to the disclosure statement of A11 made under Section 27 of The Indian Evidence Act, 1872 (hereinafter ‘IEA’), recovery of the axe used in the murder was made from the bushes near the spot of occurrence. A2, A4, A10, A15 were arrested on 10.03.2002 and, based on the disclosure statement of A12, a chopper was recovered. A3, A5 to A8 and A12 were arrested on 16.03.2002. It is pertinent to note here that though one Ashraf was named in the FIR as A13, subsequently on 10.03.2002 a report for deletion of his name was moved by PW19 before the Ld. Magistrate stating that Ashraf was undergoing treatment at Mangalore on the date of incident. On completion of investigation, Chargesheet was filed against all the accused persons (A1 to A15). The Trial Court vide its judgment dated 24.04.2006 found all accused persons guilty under Section 143, 147, 506 (ii), and 302 r/w. 149 of IPC. A2,3,11,12 were also found guilty under Section 148 of IPC and under Section 5 of the Explosive Substance Act and A15 was completely acquitted of all charges.

11. Having said this, let us consider the evidence on record to see as to whether the High Court has appreciated the evidence in a proper manner to partly allow the appeal.

12. Admittedly, there was a long-standing political rivalry between RSS and CPI. As has been stated by PW1, he and 11 others were earlier a part of CPI and they had defected and joined RSS and hence there were estranged relations between the two groups. Admittedly, a call of Hartal was given by one organization and the same was opposed by another political party, leading to a clash between the followers of these two parties. The version of witnesses discloses that the group of 11 members rushed to a shed near river Meloor to save their lives from the violent mob. This group of 11 members were hiding themselves near the river and in the night the accused persons led a deadly attack on them and ultimately, two persons lost their lives as a result of this incident.

Hence, the principle of law is crystal clear that on the account of defective investigation the benefit will not inure to the accused persons on that ground alone. It is well within the domain of the courts to consider the rest of the evidence which the prosecution has gathered such as statement of the eyewitnesses, medical report etc. It has been a consistent stand of this court that the accused cannot claim acquittal on the ground of faulty investigation done by the prosecuting agency. As the version of eyewitnesses in specifically naming the appellants have been consistent throughout the trial, we find that there is enough corroboration to drive home the guilt of the accused persons. When the testimony of PW1 Jitesh, PW 2 and PW4 is seen cumulatively, their versions can be seen to be corroborating each other. All of them being eyewitnesses, what is material to be seen is their stand is consistent when they said that it was A2 who was responsible for inflicting blows on both the deceased. It may not be out of place to mention that though the unfortunate incident took place at midnight around 1 am, it was a full moon night and as such, it was not pitch dark. This has also not been vehemently disputed by the defence counsel. Hence, the version put forth by the prosecution witnesses inspires confidence of this Court. The specific role attributed by the prosecution witnesses cannot be challenged on extraneous grounds which have been raised by the defense. There is no contradiction when it comes to assigning specific role to the above accused. Admittedly, there was an enmity between the witnesses as they were from different political groups. Moreover, it can be seen from the record that the Accused and the witnesses were well acquainted with each other as PW1, PW 2 and PW4 had defected from the CPI and had joined RSS. The witnesses could have tried to implicate anyone had they wished to take advantage of their past acquaintance and recent rivalry.