IMPORTANT POINTS
(1) Motive loses its significance when ocular evidence is strong.
(2) What is substantive evidence is disclosure statement deposed to by Investigating Officer in court and not what he had extracted in seizure mahazar.

JUDGMENT

A.M. Babu, J.—Charge-sheet was filed against 13 persons. The persons shown in the charge-sheet as accused 1 and 7 were juveniles on the date of incident. Hence the case against them was split up. The 6th accused died and the charges against him got abated. The 9th accused absconded and therefore the case against him was split up and refiled. The remaining accused persons were tried in SC 1436/2006 by the additional sessions judge, fast track-II, Thiruvananthapuram. Accused 5, 8 and 10 to 13 were acquitted of all the charges they faced. Accused 2 to 4 were convicted and sentenced under Secs 302 and 307 of the Indian Penal Code (IPC) read with IPC 34. They were acquitted of the other charges. The 4th accused filed Crl.A.1147/2014. Accused 2 and 3 jointly filed Crl.A.505/2015.

2. Prosecution case goes as follows: The incident occurred at 9 a.m on 30.7.2002. The place of occurrence was the tarred portion of Sreekaryam-Powdikonam road in front of the Devi temple at Chellamangalam. A person by name Suresh Babu died in the incident. Two persons were injured who were PWs 1 and 2. The accused persons had enmity towards Suresh Babu. The accused persons formed themselves into an unlawful assembly with the common object of committing murder of Suresh Babu. The accused persons committed rioting arming themselves with deadly and dangerous weapons such as swords, chopper, iron rods and sticks. Aneesh (juvenile) hit Suresh Babu with a stick on the head. The 3rd accused cut on the head of Suresh Babu with a sword. Rajesh (juvenile) and accused 8, 10 and 11 beat Suresh Babu on his legs with sticks and iron rods. The 2nd accused cut PW2 with a sword on his hand. The 4th accused cut on the back of PW2 with a chopper. He was hit by the 5 th accused with an iron rod. The 3rd accused cut PW2 with a sword. Rajesh (juvenile) and accused 6, 8 and 9 beat PW1 all over his body with sticks. The 12th accused stood abetting others to attack the victims. All the victims sustained serious injuries. Suresh Babu succumbed to the injuries.

3. The accused persons who faced trial denied the charges framed against them under Secs 143, 147, 148, 149, 302, 307, 324, 326 and 342 of IPC and under Sec.27 of the Arms Act. PWs 1 to 19 were examined and Exts P1 to P24 and MOs 1 to 12 were marked on the side of the prosecution. Exts D1 to D4 were marked on defence side during the course of prosecution evidence. The accused persons who were tried were examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C). They denied the incriminating evidence and circumstances relied on by the prosecution. As they were not acquitted under Sec.232 of Cr.P.C, they were called upon to enter on their defence and adduce evidence. DW1 was examined on defence side to prove the alibi pleaded by the 5 th accused.

4. Accused 2 to 4 who were convicted were sentenced to imprisonment for life under Sec.302 of IPC and rigorous imprisonment for 6 years and a fine of Rs 50,000/- each under Sec.307 of IPC. The sentence in default of payment of fine imposed by the trial court was rigorous imprisonment for 6 months. The substantive sentences were directed to run concurrently only.

5. Heard Sri.B.Raman Pillai, the learned senior counsel for the 2nd accused, Sri.Shabu Sreedharan, the learned counsel for the 3rd accused and Sri.P.S.Pradeep, the learned counsel for the 4th accused. The learned public prosecutor Sri.S.U.Nazar was also heard.

6. Accused 2, 3 and 4 were convicted and sentenced by the trial court under Secs 302 and 307 of IPC read with IPC 34. They were found to have committed murder of Suresh Babu. It was also found that they attempted to commit murder of PW2. The prosecution mainly relies on ocular evidence to prove the complicity of accused 2, 3 and 4. The witnesses examined for ocular proof were PWs 1 to 4. PWs 1 and 2 sustained injuries in the incident. The trial court did not convict any accused for causing hurt to PW1. The prosecution has no case or evidence that accused 2