IMPORTANT POINTS
All the accused persons were not armed with deadly weapons. There is a distinction between offence under Section 146 and 148 of the IPC. The offence under Section 146 is punishable under Section 147 of IPC. To constitute the offence of rioting as defined under Section 146, the members of the unlawful assembly need not carry weapons, whereas when a person is charged with an offence under Section 148, he must also be armed with a deadly weapon. Viewed in the above background, we are of the view that the offence under Section 148 of IPC is not attracted in this case.

JUDGMENT :

N. ANIL KUMAR, J.

1. By judgment dated 8.10.2014, the Special Additional Sessions Judge (Marad Cases), Kozhikode in S.C. No. 210/2012 convicted and sentenced the accused Nos. 1, 3, 5, 6, 8, 9, 10 and 11 for the offences punishable under Sections 143, 147, 148, 353 and 302 read with 149 of the Indian Penal Code (for short ‘IPC’) and accused Nos. 4, 5, 6, 8, 9, 10 and 11 for the offences punishable under Section 302 read with 120B IPC. Accused Nos. 2, 7, 12, 13 and 14 were found not guilty and were acquitted under Section 235(1) of the Code of Criminal Procedure (for short Cr.P.C.)

2. Challenging the conviction and sentence, accused Nos. 1, 3, 4, 5, 6, 8, 9, 10 and 11 filed Crl. A. No. 1156/2014 before this Court. At the same time, PW-8 in S.C. No. 210/2012, who is none other than the father of deceased Shaheed Bava, filed Crl. A. (V) No. 521/2015 against the order of acquittal passed against accused Nos. 2, 7, 12, 13 and 14 and also for enhancement of the sentence awarded to the other accused. Respondents in this appeal are the accused 1 to 14 and the State respectively.

3. The prosecution case, in brief, is herein-below:-

The deceased Shaheed Bava is a native of Cheruvadi and was employed in the Gulf for some time. The deceased was a frequent visitor to the residence of PW-2, whose husband was also employed in the Gulf at that time. On 22.10.2011 night, while the deceased was returning from the house of PW-2 in his car, accused Nos. 2, 5 to 12 and 14 tried to obstruct the car and chased him upto his house, wherein the relatives of Shaheed Bava threatened them with dire consequences. Resultantly, they were forced to return Kodiyathur. Again, on 9.11.2011 at night time, Shaheed Bava came to the house of PW-2 along with A4 in the latter's autorickshaw, while all the accused were waiting for another opportunity to wreak vengeance on him. As informed by the fourth accused, in whose autorickshaw the deceased had gone to the house of PW-2, the other accused formed themselves into an unlawful assembly, armed with deadly weapons and in prosecution of their common object, beat up Shaheed Bava with iron rods and sticks. Thereafter, the critically injured deceased was dragged towards an electric post and he was tied with a plastic rope in the electric post. On information, one among the onlookers, PW-4 and a Police Constable came to the spot and tried to save the deceased Shaheed Bava, who was unconscious by that time. However, the accused deliberately obstructed the Police and proclaimed that his dead-body alone will be allowed to be removed from the spot. Hence, more Police force was brought to the spot and the injured was taken to the KMCT Hospital, Mukkom and from there he was taken to the Baby Memorial Hospital, Kozhikode. However, he succumbed to the injuries after undergoing a major surgery on 13.11.2011. It is further alleged that A4 conspired with the other accused to murder Shaheed Bava, by making telephone calls between the accused.

4. Originally the case was registered pursuant to Ext.P1 statement given by PW-1, who is the uncle of Shaheed Bava for the offence punishable under Section 308 of IPC. Thereafter it was converted to 307 IPC and on the death of Shaheed Bava, Section 353, 302 IPC r/w 120B IPC were also included. PW-41 was specially authorised to investigate into the crime and the Special Investigation Team headed by him after completion of the investigation laid the charge before the Judicial First Class Magistrate Court-II, Thamarassery. The learned Magistrate after complying with the usual formalities, committed the case to the Court of Sessions, Kozhikode. The learned Sessions Judge took cognizance of the offence punishable under Sections 120B, 143, 147, 148, 302, 353 read with 149 of Indian Penal Code and the case was numbered as SC No. 210/2012 and made over to the Additional Sessions Judge (Marad Cases), Kozhikode for trial and disposal. Pursuant to the summons issued from the court, all the accused appeare