The main legal point established in the judgment is that when an offence under Section 302 IPC has been established, the offender cannot be convicted for the offence under Section 326 IPC, as it falls within the purview of Section 71 of the Indian Penal Code.

JUDGMENT :

P.B.Suresh Kumar, J.

The appeal is by the second accused in S.C. No.1242 of 2011 on the files of the Court of the Special Judge (CBI), Thiruvananthapuram. There were 14 accused in the case and after the trial, the fourteenth accused was acquitted and accused 1 to 13 were convicted and sentenced for the offences for which they were charged. Among them, the appellant was convicted and sentenced for the offences punishable under Sections 144, 148 and 302 of the Indian Penal Code (IPC) and Sections 143, 147, 341, 323, 324, 326 and 506 Part II read with Section 149 IPC.

2. The case relates to the alleged murder of one Paul M.George. He succumbed to the stab injuries suffered on the back side of his trunk on the early hours of 22.08.2009 at a place called 'Ponga' on the Pallathuruthy-Perunna Road in Alappuzha District. A case was registered in connection with the occurrence by Nedumudy Police based on the information furnished by one Shibu Thomas, the driver of the deceased. The investigation in the case was initially conducted by the local police and later by a Special Investigation Team of the State Police. After investigation, a final report was filed by the Special Investigation Team against 25 accused including the appellant alleging commission of various offences. Later, at the intervention of this Court, Central Bureau of Investigation (CBI) conducted further investigation in the case and filed two separate final reports, one in respect of the criminal conspiracy hatched among the accused to attack one Kurangu Nissar and others, and the second final report in respect of the murder of Paul M.George. The present appeal arises from the proceedings initiated on the second final report filed in respect of the said murder.

3. The allegations in the final report filed by the CBI against the accused in general, and against the appellant in particular, are the following:

(i) In the backdrop of a quarrel, on a complaint lodged by the tenth accused, a case was registered by Alappuzha North Police against one Shameer and others. Shameer in the meanwhile, arranged a gangster namely, Kurangu Nissar to intimidate the tenth accused to persuade him to withdraw the case. Owing to the intimidating conduct of Kurangu Nissar, the tenth accused arranged the first accused, another gangster to attack Kurangu Nissar and Shameer. The first accused, thereupon arranged a group of persons to attack Kurangu Nissar and others and proceeded from Changanassery to Mannanchery on 20.08.2009 for the said purpose in four vehicles, two tempo travellers, one Scorpio car and one Santro car. The appellant was one among the members of the said group headed towards Mannanchery. The appellant carried with him a knife. On their way, as one of the tempo travellers got stranded, the remaining vehicles were called back to attend to the stranded vehicle and to proceed together later. While the stranded vehicle was being attended to by the members of the group, one Biju Pushkaran who was proceeding on the same road in a motorcycle, halted near the stranded tempo traveller to enquire as to what had happened. A Ford Endeavour car which came then from the opposite direction hit the said motorcycle and drove away. The deceased was driving the said car. One Manu was also present in the car with the deceased at the relevant time. Agitated by the conduct of the deceased in not stopping his car, the first accused exhorted to the men in his group to chase and get hold of the driver of the car. On hearing the exhortation of the first accused, accused 2, 3, 4, 5, 6, 7, 8 and 9 got into the tempo traveller which was parked there and chased the Ford Endeavour car.

(ii) Even though the deceased had not stopped the car when the same hit the motorcycle, he had to stop after about 1½ kms away, as the front bumper of the car had broken, from where a sound was heard. While the deceased and his co-passenger were inspecting the bumper of the car, the tempo traveller which was chasing them r