Judgment

SURINDER SINGH NIJJAR, J.

1. These three appeals have been filed against a common judgment of the High Court whereby the six appellants in the three appeals have been convicted under Sections 302, 307, 149 and 34 of the Indian Penal Code (for short `IPC' ); the sentence to life imprisonment for offences under Section 302 read with Section 149 or 34 of the IPC; rigorous imprisonment for five years under Section 307 read with Section 149 or 34 of the IPC; rigorous imprisonment for six months each under Sections 143 and 148 of the IPC.

2. Initially 13 persons including the six appellants had been charge-sheeted in Kumbla Police Station, Crime No.22/1994 for offences punishable under Sections 143, 148, 324, 307 and 302 of the IPC read with Section 149 of the IPC. Upon trial, the six appellants had been convicted under Sections 143, 147, 148, 307 and 302 read with Section 149 of the IPC and sentenced to life imprisonment together with various other periods of imprisonment under different sections. The sentences were directed to run concurrently. Accused Nos. 7 to 13 were found not guilty and acquitted of all the charges. The convicted accused filed Criminal Appeal No.391/96 before the High Court of Kerala. At the same time, the acquittal of accused Nos.7 to 13 was challenged through revision by K. Hussain (PW2) the son of Moosa Haji, PW5 (the injured witness), through Criminal Revision Petition No.1115/96. Through a common judgment, the High Court was pleased to accept the appeal filed by the convicts and their convictions as well as their sentences were set aside. The case was remanded to the Trial Court for fresh disposal after complying with the provisions under Section 233 of the Criminal Procedure Code. Criminal Revision Petition No.1115/96 against acquittal of accused Nos.7 to 13 was dismissed.

3. On remand, accused Nos.1 to 6 appeared before the Court on 9.1.1998. They were given an opportunity to adduce defence evidence. Consequently, they examined DW1 to DW5 and marked Exbts. D7 to D10. At the time of the remand, the earlier Sessions Judge who had convicted accused Nos.1 to 6 had been transferred, therefore, the evidence was recorded by his successor in office. On a reappraisal of the evidence led by the parties, the Sessions Judge came to the conclusion that the prosecution had failed to prove the offences alleged against the accused. They were, therefore, all acquitted.

4. These acquittals were challenged by the Sate of Kerala in Criminal Appeal No.444/98 and by PW2, K. Hussain, in Criminal Revision No.552/98. The High Court, by a common judgment, came to the conclusion that the prosecution had conclusively proved the case against accused Nos. 1 to 6 and the findings recorded by the Sessions Judge were perverse and manifestly erroneous. Therefore, the judgment of the Trial Court was set aside. They have all been convicted for various offences, as noticed above.

5. Against the conviction and sentence, accused Nos.1 and 4, namely, K. M. Iddinkunhi and Andan, have filed Criminal Appeal No.434/2002, accused Nos. 2 and 3, namely, M.C. Ali and Andunhi have filed Criminal Appeal No.499/2002 and accused Nos.5 and 6, namely, B.K. Bayan Kunhi and K.B. Abbas have filed Criminal Appeal Nos.500-501/2002.

6. We have heard the learned counsel for the parties. Before we consider the submissions made by the learned counsel, it would be appropriate at this stage to notice the case as presented by the prosecution.

7. It is claimed by the prosecution that Moosa Haji, (PW5), his family and some of his close relatives are believers of Shemsia Thareequat sect in the Muslim community. They are the worshippers of Sun and followers of Sai Baba. They are not accepted by a large section of the Muslim community. Therefore, the local Jumaath had unleashed "a sort of an overt and covert attack on PW5 and other followers of Thareequat movement." This had created fights between the two groups of the locality which caused friction in the relatio