Judgment

DUA, J.:- (With J. M. SHELAT J.) These are two appeals (Crl. A. No. 263 of 1971 and Crl. A. No. 300 of 1971) against a common judgment of the Kerala High Court disposing of four appeals (3 separate appeals by accused Nos. 1 to 5 convicted by the Additional Sessions Judge, Kottayan and one appeal by the State against the acquittal of accused Nos. 6 to 10) affirming the conviction and sentence of accused Nos. 1 to 5 and reversing the order of acquittal of accused Nos. 6 to 10, convicting them under Sections 302/149, I.P.C. as also under Section 148, I.P.C. Accused Nos. 1 to 5 have been sentenced to death by both the trial court and the High Court under S. 302, I.P.C. and to rigorous imprisonment for one year under S. 148, I.P.C. whereas accused Nos. 6 to 10 have been sentenced to imprisonment for life by the High Court under Ss. 302/149, I.P.C. and to rigorous imprisonment for one year under S. 148, I.P.C. All the ten accused persons have appealed to this Court and they are :

1. Apren Joseph alias Current Kunjukunju,

2. Kochukunju Vasu alias Thankappan,

3. Velu Damodaran,

4. Kesavan Kumaran alias Kochu,

5. Cherian Mathew alias Scaria,

6. Mundan Poulose alias Baby,

7. Yohannan Pothan alias Kochu,

8. Gangadharan Bhaskaran,

9. Kutty Chellappan alias Iruttu,

10. Kunchan Sukumaran.

This is also the order in which these ten persons appeared as accused in the trial.

2. Criminal Appeal No. 263 of 1971 has been presented to this Court under S. 2 (a) of the SC (Enlargement of Criminal Appeal Jurisdiction) Act, No. 28 of 1970 by accused Nos. 6 to 10 whose acquittal by the trial court was reversed by the High Court on appeal by the State. Criminal Appeal No. 300 of 1971 under Art. 136 of the Constitution has been presented by accused Nos. 1 to 5.

3. The alleged occurrence giving rise to the prosecution of the appellants took place at about 1 O clock on the night between December 13 and 14, 1970 at a place on Manarked-Tenganal road on the southern side of Kalappurakal dispensary of Baby in Puthupally village in Kottayam. The occurrence is stated to be the result of political animosity between the members of the Marxist party and the members of an organisation of agriculturists called "Karshak Sangham" at Puthupally of which the deceased Kuruvilla was the Vice-President.

4. On the evening of December 13, there was a meeting of the Karshaka Sangham near the Puthupally junction and it was over at about 10.30 p.m. After attending the meeting (Pappu) Joseph (P.W. 1) and Joseph Cherian (P.W. 4) along with one Baby started for going home. Kuuruvilla who met them at the Puthupally junction requested them to accompany him to the house of Yesu Kathanar (Christian priest) (P.W. 5) which was on the western side of Puthupally junction. They readily agreed with the result they all went together to the house of the priest along the Manarkad-Thenganal road. That road runs east to west. While Puthupally junction is on the eastern side Eramallur junction is on the western side of this road. In order to reach the house of the priest one has to go through Eramallur junction. After Kuruvilla had a talk with P.W. 5 and when they were returning through the same route, at the place of occurrence which is about 7 furlongs away from the house of P.W. 5 they met Mathayikutty (Mathayi) (P.W. 3) driving a lorry and coming from the opposite direction. On seeing them P.W. 3 stopped his lorry. One Achankunju was also in the lorry with P.W. 3. After stopping the lorry P.W. 3 told these four persons that accused No. 2 and others were coming that way armed with deadly weapons. P.W. 3 accordingly asked these four persons not to proceed towards Puthupally junction, at the same time offering to take them in his lorry. By the time this conversation was over the accused had already reached the scene of occurrence. As soon as they arrived there accused No. 1 Apren Joseph struck a blow with his chopper on Kuruvilla s head. Kuruvilla tried to ward it off with his right hand but was not suc