- (1.) Leave granted.
(2.) The appellants call into question the legality of the judgment rendered by a Division Bench of the Kerala High Court while partially altering the conviction of Nujum (Appellant No.2) who is, hereinafter referred to for the sake of convenience as A2 and maintaining the conviction of Shajahan (appellant No. 1 for short A1), Manzoor (A3) and Musthafa (Appellant No.4 for short A-4) u/s. 323 read with Sec. 34 of the Indian Penal Code. A-2 was convicted in terms of Sec. 304 Part II of the Indian Penal Code, 1860 (in short the IPC) instead of Section the conviction u/s. 302 of the Indian Penal Code by the trial Court, and sentenced to undergo rigorous imprisonment for five years. The conviction of A2 and the sentence for offence, punishable u/s. 324 Part I of the Indian Penal Code, was not interfered with.
(3.) The prosecution version as unfolded during trial was as follows: The accused who are closely related to each other were harbouring extreme enmity towards Ashraf (PW-5) and his younger brother Abdul Samad (hereinafter referred to as deceased ). On 18.9.1994 at or about 1.50 P.M. at Kulasekharapuram in Adinadu Village, Punnakulam Muri and to the south of Puthentheruvu junction near the eastern boundary of the paramba of Laila, (the sister of PW5 and the deceased) accused in furtherance of their common intention to voluntarily cause hurt to the aforesaid brothers with dangerous weapons attacked them. A1 pulled the deceased by catching hold of his legs, Nujum-A2 stabbed him with M.O.1 knife, A4 cut him with M.O.2 chopper. When PW5 intervened to rescue the deceased, Musthafa-A4 inflicted a cut injury on PW5 with M.O.2 chopper, A2 inflicted a stab injury on Shuhra Beevi (PW1) with M.O. 1 knife and Manzoor-A3 assaulted PW5 using his hands. The deceased succumbed to the injuries and injured PW5 was admitted in the hospital. The accused thereby committed offences punishable under Ss. 302 and 324 read with Sec. 34 of the Indian Penal Code.;