IMPORTANT POINT
Merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of the Division Bench of Kerala High Court allowing the appeal filed by the respondent. Five accused persons faced trial for alleged commission of offence punishable under Sections 143, 147, 148, 323, 324 and 302 of the Indian Penal Code, 1860, (in short the ‘IPC’).

2. All the accused persons denied their involvement in the crime. Learned First Additional Sessions Judge, Thiruvananthapuram found A1 to A4 guilty, while A5 was acquitted. The following convictions and sentences were recorded:

“A.1 to A.4 are found guilty and A.1 is convicted and sentenced to undergo R.I for one month u/s 341 and also is sentenced to undergo R.I for one year u/s. 323 IPC and is also sentenced to undergo imprisonment for life and also to pay a fine of Rs.20,000/- in default to undergo R.I for 3 years u/s. 302 IPC A2 and A3 are convicted and sentenced to undergo R.I for one month each u/s. 341 IPC and also sentenced to undergo R.I for 3 years each u/s. 324 IPC and also sentenced to undergo imprisonment for life and also to pay a fine of Rs.20,000/- each in default to undergo R.I for 3 years u/s. 302 IPC. A.4 is convicted and sentenced to undergo R.I for 2 years u/s. 324 IPC set off allowed u/s. 428 IPC sentences shall run concurrently.”

A.1 filed Criminal Appeal No.529/1999 challenging the order of conviction and sentence. The other accused filed Criminal Appeal No.444./1999 against the same judgment. Both the appeals were heard together by the High Court.

3. Prosecution version as unfolded during trial is as follows:

Gangadharan Pillai (hereinafter referred to as the ‘deceased’) father of PW1, and Raveendran, Al’s father’s brother, were neighbours. A coconut tree belonging to the said, Raveendran was slanting over the building of the deceased. On the allegation of falling of tender coconut etc. from the coconut trees, there were frequent quarrels between the deceased and Raveendran. The deceased Gangadharan Pillai demanded to cut and remove and remove the said coconut tree. On 27.10.1993 at about 8.15 p.m. a quarrel occurred between Raveendran and Gangadharan Pillai and Reveendran sustained injuries, for which the Poonthura Police registered Crime No.82 of 1993 for offences punishable under Sections 341, 323 read with Section 34 IPC. Ext. D3 is the scene mahazar in respect of crime No.82 of 1993. On account of the injuries sustained by Raveendran, Al to A4, close relatives of Raveendran, and A5, a friend of A1, decided to do away the deceased and to inflict bodily harm on PWs 1 and 3. In prosecution of their common object they formed themselves into an unlawful assembly with deadly weapons like dagger, sword, Iron rod, iron bar etc. at 8.45 p.m. on 27.10.1993 inside the coconut garden of one Mohammed Shah situated by the side of the pathway that starts from Ambalathara-Poonthura Road at Numari Chantha near the Vedanthara Bridge. Al caught hold of the collar of the shirt of PWI and fisted thrice on his chest. A4 with the iron rod inflicted a blow on the back of PW1 and A3 with the iron bar inflicted four or five blows on the right shoulder of PW 1. Then PW1 cried aloud. At that time, Al inflicted a stab injury on PW1 with the dagger which was warded off by PW1. On hearing the cry of PW1, his father Gangadharan Pillai (deceased) rushed to the scene and tried to prevent the accused from causing further harm to PW1. At that time A2 and A3 caught hold of the deceased and wrongfully restrained him. Then Al with the dagger inflicted a stab injury on the back at the left side above the waist on the deceased. A4 and A5 inflicted blows on the body of the deceased with iron rods. At that time PW3, mother of PW1 and wife of the deceased, intervened and tried to prevent the accused from causing further harm to the deceased and PW1. A2 with a sword, inflicted a cut injury on the head and two other cut injuries on the thighs of PW3. A3 and A4 inflicted blows on many portions of the b