JUDGMENT

Dr. ANAND, J. :—On 9-3-1992, when this special leave petition, directed against the judgment and order dated 4th September, 1991, of the High Court of Kerala in Criminal Appeal No. 537 of 1988, came up for preliminary hearing, the following order was made:

"Issue notice limited to the question as to the nature of offence and the quantum of sentence. No orders on bail."

2. Heard learned Counsel for the parties. Leave is granted confined to the limited question on which notice was issued as referred to above.

3. For an occurrence which took place on 24th December 1986, in which one Suku succumbed to the injuries as a result of the assault during the occurrence, six accused persons were arrayed by the investigating agency for offences punishable under sections 302, 324, 323, 241, 148 read with Section 149, IPC. They were put on trial and the prosecution sought to establish its case by examining as many as six eye-witnesses besides other evidence, documentary and oral. At the trial, however, four eye-witnesses, PW 3 Devassykutty, PWs 6 and 7 salesman and his assistant in the arrack shop and PW 8 Unni alias Velayudhan turned hostile and did not support the prosecution case. The prosecution case was sought to be proved by the ocular testimony of PW 4 Biju and PW 5 Anil, both aged about 13 years at the time of occurrence and the other evidence. Both the eye-witnesses supported their statements recorded under Section 161, Cr.P.C. during their testimony in court. The trial Court on the basis of prosecution evidence found accused No. 1, Subran, guilty of an offence punishable under section 302, IPC and sentenced him to suffer rigorous imprisonment for life. Accused Nos. 2 to 6, namely, Rajan, Preman, Viswan, Sura and Shajan, were found guilty of an offence under section 326/149, IPC and each one of them was sentenced to undergo rigorous imprisonment for three years. Besides, accused 1 to 4 were convicted for an offence under section 148 and sentenced to suffer rigorous imprisonment for one year. All the accused were also convicted and sentenced to suffer rigorous imprisonment for six months each under section 147, IPC. All the accused were also convicted for offences under section 143, 341, 323, 324 read with Section 149, IPC but no separate sentences were awarded on any of those counts. On an appeal before the High Court, the conviction and sentence awarded to accused 1 to 3 and 5 were confirmed while accused 4 and 6 were acquitted and the conviction and sentence recorded against them by the learned Sessions Judge was set aside. In view of the limited notice issued by this Court, we are relieved of the necessity to reappreciate the prosecution evidence in extenso and shall therefore confine ourselves to the determination of the nature of the offence and the award of appropriate sentence to the four appellants accepting, as established the prosecution case against the four appellants beyond a reasonable doubt.

4. According to the prosecution case, all the six accused persons were armed with weapons like chopper, iron rod, knife, cycle chain and torches. It is the prosecution case that the accused had held PW 2 George and while the first accused kicked him, the third accused inflicted injuries on him with a cycle chain. So far as Suku deceased is concerned, according to the prosecution, all the accused except the first accused caused him injuries with a torch, a cycle chain and a knife. The first accused is alleged to have caught hold of Suku by the collar and inflicted injuries on his hands, arms and legs with a chopper. The assault took place in front of an arrack shop. According to the prosecution case there was enmity between the two groups on account of illicit distillation and suspicion of information being passed on to the Excise officials. However, no evidence was led in support of this allegation by the prosecution and no motive for commission of the crime was established at the trial.

5. The post-mortem on the deceased was