Opinion rendered under Section 392 of the Cr.P.C.

Two learned Judges of this Court, Mr. Justice K.T. Sankaran and Mr. Justice Babu Mathew P. Joseph, are equally divided in their opinion in rendering the judgment in this Appeal. Consequently, the matter has been placed before this Court under Section 392 Cr.P.C. through the order of the Hon'ble the Acting Chief Justice.

2. This Court has chosen to hear the appeal afresh. Heard both the learned Senior Counsel for the appellants Sri. M.K. Damodaran and Sri. B. Raman Pillai and also the learned Public Prosecutor in extenso.

3. Accused Nos.3 to 9 in Sessions Case No.115/2009 of the Sessions Court, Ernakulam, who stand convicted under Sections 143, 147, 148, 506(ii) and 302 IPC read with Section 149 of the Indian Penal Code, and each of whom stand sentenced to undergo rigorous imprisonment for six months under Section 143 IPC, rigorous imprisonment for one year under Section 147 IPC, rigorous imprisonment for 2 years under Section 148 IPC, rigorous imprisonment for three years under Section 506(ii) and imprisonment for life and to pay a fine of 25,000/-, in default, to undergo rigorous imprisonment for one year more under Section 302 IPC, have come up in appeal. Even though the facts have been narrated by the aforesaid two learned Judges, when this Court has opted to hear the matter afresh, this Court is narrating the facts in brief as below.

4. Deceased Balasubramanian @ Balu was the Deputy General Secretary of the High Range Plantation Employees Union(HRPEU), Idukki District. It is a trade union owing allegiance to INTUC, which is the trade union wing of the Indian National Congress. Earlier, Balu was a worker of the Dy.F.I. which is the youth wing of the Communist Party of India(Marxist) [CPI(M)] and he had allegedly defected CPI (M) and joined Indian National Congress. Thereafter, he became the leader of HRPEU.

5. In the year, 2003, there occurred the murder of one Ayyappadas, who was one of the office bearers of CPI(M). Balu was arraigned as the first accused in the case. Over and above the aforesaid enmity, Balu along with PW1 and PW3 were instrumental in objecting the proposal to construct a memorial for late Ayyappadas at the river purambokke. It is alleged that on account of all the above, the workers of CPI(M) had nurtured a grudge towards Balu, which became aggravated and consequently, they wanted to exterminate him.

6. In October 2004, there were severe labour unrest in the plantation sector in the high range area. The plantation workers belonged to different trade unions joined together and called for an agitation and struck work. While, such a strike was going on, the HRPEU headed by Balu, PW1 and PW3, had abruptly withdrawn from the strike, which necessitated them to explain the circumstances in which they had to withdraw from the strike. With a view to justifying their action, HRPEU organised various corner meetings and the said Balu was one of their main speakers who could explain the circumstances which compelled them to withdraw from the strike.

7. It is alleged that all of a sudden, by about 7.30 p.m., A1 to A9 who had formed themselves into an unlawful assembly armed with deadly weapons arrived there by jeep bearing Reg.No.KL-5H-7428 owned by PW10 and allegedly driven by A9. The jeep came to an abrupt halt just in front of the venue of the corner meeting. A1 to A8, who were armed with deadly weapons, jumped out of the jeep and rushed towards Balu. It is alleged that the first accused inflicted a cut on Balu with a sword. There occurred a hue and cry and the audience moved away. With a view to escaping from the clutches of the accused, Balu attempted to run away. He was chased by A1 to A4. The second accused inflicted a cut on the back of the head of Balu with a sword. On getting that blow Balu fell in a prone position and he lay prone on the ground. Cuts with swords were indiscriminately inflicted by the accused all over the body of Balu and consequently Balu