Judgment :

SURINDER SINGH NIJJAR, J.

1. These two appeals have been filed against the common judgment of the High Court of Kerala at Ernakulam dated 28.6.2004 in Criminal Appeal No. 432 of 2003 and Criminal Appeal No. 873 of 2003 whereby the High Court dismissed the appeal filed by the appellants herein by confirming the judgment of the trial court convicting and sentencing them under Section 302 and 149 of the Indian Penal Code. By the same judgment, their conviction under Section 120 (B) was set aside.

2. The appellants along with eight other persons were tried by the Sessions Court, Kollam, in Sessions case no. 564/1999 for the offences punishable under Section 114, 143, 147, 148, 120(B) & 302 read with Section 149 of Indian Penal Code. It was the case of the prosecution that the deceased Kochukuttan and Murali (CW-11) had assaulted the appellants on 19.5.1997 "at 9.00 p.m. at a place at Chaithram Restaurant" run by the appellant Devakumar @ Jayakumar. Seeking revenge, the two appellants, Rajeev (A3) and Venu (A4) assembled at Chaithram Restaurant at Veliyam junction on 20.6.1997 at 7.45 p.m. and hatched a conspiracy to murder Kochukuttan. On 24.6.1997, all the ten accused in furtherance of a common object, armed with deadly weapons such as swords, iron rods, chopper, knife and stick etc. came to Chaithram Restaurant in a jeep KL-2B/9938. The jeep, which belonged to CW-16, was driven by Venu (A4). All the accused came out of the jeep at a place in front of the restaurant. Accused Prathap (hereinafter referred to as A1) and Rajeev (hereinafter referred to as A3) were in the front whereas Padmachandran (A5) to Deepu (A10) followed behind them. They came to a place in front of Harishree Bakers on the Eastern side of Kottarakkara Oyoor Public Road at Veliyam junction at about 7.45 p.m. At that time, the deceased was talking to PW-1 Hareendranathan. A3, Rajeev, called Kochukuttan by saying "Kochukuttan Come here". Thereafter, appellant no. 1 Prathap (A1) assaulted the deceased with his sword and caused an injury on his head. At the same time, appellant no. 2 (A2) shouted "cut this man". He was also armed with a sword and made a cut with the same on the side of the chest of the deceased. As a result of the injuries, Kochukuttan fell down on the road on the side of the verandah of Harishree Bakers. Thereafter, Padmachandran (hereinafter referred to as A5), Arjunan (hereinafter referred to as A6), Siddikishan (hereinafter referred to as A7), Saji @ Sajith(hereinafter referred to as A8), Rajesh (hereinafter referred to as A9) and Deepu(hereinafter referred to as A10) are alleged to have inflicted various injuries with their weapons such as iron rods, chopper, sword, knife and stick. After causing mortal injuries to Kochukuttan, the assailants left the place in the same jeep in which they had arrived. The deceased was moved to the hospital initially in a car driven by CW-14. However, the lights of the car developed some problem and the deceased was transferred to the jeep driven by CW-15. Kochukuttan succumbed to the injuries at 8.10 p.m. on 24.6.1997. Upon completion of the investigation, the ten accused were put on trial. The prosecution cited PW-1, PW-2. PW-4 and PW-5 to PW-10 as eye-witnesses. It is noticed by the High Court that PW-6 to PW-10 were declared hostile as they did not fully support the prosecution story. PW-3 was examined mainly to prove the criminal conspiracy which had been hatched at the hotel of Chaithram owned by A2, appellant in Criminal Appeal No. 873 of 2003 in the High Court. The trial court convicted A1, A2, A5, A6 and A7 under Section 302 of IPC and sentenced them to imprisonment for life and fine of Rs. 20,000/- each, in default to undergo R.I. for a period of 6 months. A1, A2, A5, A6 and A7 were also convicted under Section 149 and sentenced to R.I. for 1 year each. A1, A2 and A4 were also convicted of the offence under Section 120B IPC and sentenced to R.I. for 5 years each. Accused A3 and A8 to A10 were