IMPORTANT POINTS
The unlawful assembly armed with deadly weapons alleged by PW1 at the time of occurrence was not true to facts. He had improved his version during the progress of the case and implicated three more to sustain a case of unlawful assembly. No evidence was also adduced to prove that all the accused formed into an unlawful assembly armed with deadly weapons for the purpose of rioting in prosecution of their common object assaulted and murdered the deceased. The occurrence in this case took place during the night. No light was also available in and around the scene of occurrence. PWs.4 to 6 had also no occasion to see and identify the assailants at odd hours immediately after the incident. We are of the view that the learned Sessions Judge ignored the fundamental principles in the matter of appreciation of evidence that the evidence should be appreciated in its totality and not in isolation.

JUDGMENT :

N. Anil Kumar, J.

In this criminal appeal filed under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as the Code), accused 1 to 7 in S.C.No.157/2011 on the file of the Additional Sessions Court-III, Mavelikara challenged the conviction entered and sentence passed against them for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) and Section 27(1) of the Arms Act, 1959.

2. By judgment dated 02.03.2016, the learned Sessions Judge sentenced A1 to A7 to undergo imprisonment for life and to pay a fine of Rs.25,000/-each and in default of payment of fine to undergo rigorous imprisonment for one year more for the offence punishable under Section 302 of the IPC. For the conviction under Section 143 of the IPC, A1 to A7 were sentenced to undergo rigorous imprisonment for six months each. A1 to A7 were sentenced to undergo rigorous imprisonment for one year each for the conviction under Section 147 of the IPC. A1 to A7 were sentenced to undergo rigorous imprisonment for two years each for the conviction under Section 148 of the IPC. For the conviction under Section 27(1) of the Arms Act, A1 to A7 were sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.5,000/-each and in default of payment of fine to undergo rigorous imprisonment for six months each. Set off was allowed to each of the accused under Section 428 of Cr.P.C.

3. The prosecution case, in brief, can be summarized as follows:-

Chandran Pillai (hereinafter referred to as the deceased) was a leader of the Rashtriya Swayamsevak Sangh (hereinafter referred to as RSS) whereas the accused were the sympathizers of the Communist Party of India (Marxist) (hereinafter referred to as CPI(M)). These two political parties have long standing political rivalry between them due to serious ideological, historical and empirical reasons. On 20.4.2007 at about 08.45 pm., accused Nos.1 to 7 belonging to CPI(M) resorted to assault one Aneesh, who was one of the members of the RSS, while the latter was travelling inside a stage carriage at Vettiyar in Mavelikara Taluk. In connection with the above, the deceased came to Vettiyar and had a discussion with PWs.1 to 3. Following this, on 20.04.2007 at about 11.30 pm., at Vazhipadiyil House in Vettiyar Muri, Vettiyar Village, accused Nos.1 to 7 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object to do away with the deceased and PWs.1 to 3 chased the deceased and PWs.1 to 3 from the compound of Vazhipadiyil House and, while so, the deceased was trapped inside a quarry on the Northern side of the property of one Vasudevan Pillai. Thereafter, the 1st accused inflicted blows on the deceased with an oar on the right side of his head and accused Nos.2 and 3 inflicted cut injuries on the limbs and various parts of the deceased with MOs.1 and 2 swords. The 4th accused whipped him with a cable and the 5th accused beat him with an iron rod. The 6th accused inflicted severe blows on him with an iron pipe and the 7th accused beat him with a stick and due to the grievous injuries sustained, the injured succumbed to the injuries.

4. Accused Nos.1 to 7 faced trial before the court. When accused Nos.1 to 7 pleaded not guilty to the charge framed against them by the trial court for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the IPC and Section 27(1) of the Arms Act, 1959, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined PWs.1 to 18 and Exts.P1 to P43 were marked on the prosecution side. MOs.1 to 11 were marked.

5. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecut