- (1.) This appeal has been preferred against the judgment and order dated 7.4.2005 passed by the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 1675 and 1955 of 2003 by which the High Court, while affirming the findings of fact, modified the judgment and order of the trial court dated 29.8.2003 in Sessions Case No. 58 of 2001 i.e. Criminal Appeal No. 1675 of 2003 stood dismissed, while Criminal Appeal No. 1955 of 2003 was partly allowed.
(2.) Facts and circumstance giving rise to this appeal are that: A. Babu (PW.1); Sobhanan (PW.2); and Parvathy (PW.4) all relatives were having inimical terms with the appellants. Several criminal cases were pending between them. In order to take revenge, the appellants formed an unlawful assembly for the purpose of committing murder of Sobhanan (PW.2). They waited in the house of Sudhakaran (A.1) on 12.4.2000, which was the last day of Mahotsavam conducted in the Shanmughaviiasam temple at Kulasekharamangalam, at about 10.00 p.m. B. Sobhanan (PW.2) came alongwith his 8 years old son along the pathway on the eastern side of the house of Sudhakaran (A.1) from the temple. Sudhakaran (A.1) repeatedly shouted "catch him". The accused chased him and on seeing this, Sobhanan (PW.2) ran from the place leaving his son there towards the house of Sobhana (PW.3) i.e. "Sophia Bhawan". However, before Sobhanan (PW.2) could enter "Sophia Bhawan", Sudhakaran (A.1) inflicted cut injury on his hand. Sobhanan (PW.2) entered the said house and succeeded in closing the door from inside. All the accused except Shaji (A.18) broke open the door and inflicted injuries on Sobhanan (PW.2) with their respective weapons and he was dragged to the western courtyard and again beaten. In this process, a large number of articles of the use of "Sophia Bhawan" got destroyed. C. While hearing the hue and cry, Kuttappan (deceased) father of Sobhanan (PW.2) and Babu (PW.1) reached there. The appellants rushed towards Kuttappan (deceased) shouting "Kill them" and thereafter, Sudhakaran (A.1) inflicted a cut injury on the head of the deceased with a sword stick in his hand and other accused inflicted injuries on him with their respective weapons, namely, choppers, knives and iron rods. When Babu (PW.1) and Parvathy (PW.4) made an attempt to intervene, they were also attacked by the appellants and injured. Kuttappan succumbed to the injuries caused by the accused at the spot and the accused persons ran away from the spot. D. An FIR in respect of the incident was lodged and thus, investigation commenced. The recovery of the weapons was made at the instance of the accused and after completing the formalities, 18 accused were put on trial. The prosecution to prove its case examined a large number of witnesses including five eye-witnesses. Out of them, four had been injured witnesses. E. On conclusion of the trial, the court acquitted Shaji (A.18) and convicted A1 to A11, 14 and 15 under Sections 143, 147, 148, 307, 323, 324, 449, 427 and 302 of the Indian Penal Code, 1860 (hereinafter called 'the IPC') read with Section 149 IPC and sentenced to undergo imprisonment for life and also for payment of fine of Rs.25,000/- each, in default to undergo rigorous imprisonment for five years under Section 302 IPC and they are further sentenced to undergo rigorous imprisonment for ten years each and also to pay a fine of Rs.10,000/- each, in default to undergo rigorous imprisonment for three years each under Section 307 IPC and further sentenced to undergo rigorous imprisonment for one year each and also to pay a fine of Rs.3000/- each, in default to undergo rigorous imprisonment for two months each under Section 324 IPC and they are also liable to be sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs.1000/- each. In default to undergo rigorous Imprisonment for two months each under Section 323 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for two months each under Section 427 IPC and they are further sentenced to undergo rigorous imprisonment for seven years each and also to pay a fine of Rs.5000/- each, in default to undergo rigorous imprisonment for two years each under Section 449 IPC and they are also sentenced to undergo rigorous imprisonment for six months each under Section 143 IPC and further sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC and the sentences are directed to run concurrently. Other accused, namely, A12, A13, A16 and A17 were convicted under Sections 143, 147, 148, 307, 323, 449, 427 read with Section 149 IPC. They were sentenced to undergo rigorous imprisonment for 10 years each and also to pay a fine of Rs.,10,000/- each, in default to undergo rigorous imprisonment for 3 years each under Section 307 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for two months each under Section 323 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for two months each under Section 427 IPC and further sentenced to undergo rigorous imprisonment for seven years each, and also to pay a fine of Rs.5000/- each, in default to undergo rigorous imprisonment for two years each under Section 449 IPC and further sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC and also further sentenced to undergo rigorous imprisonment or six months each under Section 143 IPC. F. Being aggrieved, the appellants preferred the appeals which have been disposed of by common judgment and order dated 7.4.2005 by which the High Court modified the order of the trial court to the extent that conviction of A7, A10 and A11 under Section 302 IPC was set aside. However, their conviction and sentence for other offences have been confirmed. Hence, this appeal.
(3.) Shri C.N. Sree Kumar, learned counsel appearing for the appellants, has submitted that courts below erred in making the case of some of the appellants distinguishable from others as one set of appellants stood convicted under Sections 302/149 IPC etc. and another set of appellants has been convicted under Sections 307/149 IPC etc., though, under the facts and circumstances of the case, no distinction is permissible. Even, if the case of some of the appellants has to be separated from others, the set of appellants who have been convicted under Section 302/149 IPC would have been convicted under Section 304 - Part I IPC. This was necessary in view of the evidence of the doctors, who conducted the postmortem examination of Kuttappan (deceased) and examined other persons. The appellants had not proceeded with common object to kill any person in as much as to kill Kuttappan, thus, provisions of Section 149 IPC are not attracted. From the facts available on record, inference can be drawn that some of the appellants had an object to catch hold of Sobhanan (PW.2), however, there was no intention to kill him. No independent witness has been examined and all the injured witnesses had been very close to the deceased. In a case, where a very large number of assailants are there and the incident is over in a short span of time, it is not possible for the eye-witnesses to identify all the accused and give detailed description of participation of each of them. Thus, evidence of the eye-witnesses cannot be relied upon. The appeal deserves to be allowed.;