IMPORTANT POINT
The court upheld the conviction of the accused for forming an unlawful assembly and inflicting grievous injuries, emphasizing the sufficiency of ocular evidence over recovery of weapons.

JUDGMENT :

(Sophy Thomas, J.)

This appeal is at the instance of accused Nos.1, 2, 4 and 7 to 11 in SC No.550 of 2004 on the file of Additional District & Sessions Judge (Fast Track Court-I), Thiruvananthapuram challenging their conviction under Sections 143, 147, 148, 307, 452 and 326 r/w Section 149 of IPC and their sentence under Sections 307, 452 and 326 r/w Section 149 of IPC.

2. Prosecution case is that, on 01.09.1998 at about 6 a.m., accused Nos.1 to 12 formed themselves into an unlawful assembly, armed with deadly weapons like sword, chopper, iron rod etc. and trespassed into the house of PW1 in furtherance of their common object of doing away with PW1 and his two sons - PWs 2 and 3, and they inflicted serious cut injuries on vital parts of their body using sword, chopper etc. which was sufficient in the ordinary course of nature to cause death, unless treated properly.

3. A5, A6 and A12 were absconding and so case against them was split up.

4. On committal, A1 to A4 and A7 to A11 appeared before the trial court. Thereafter A3 passed away and hence charge against him abated.

5. Charge was framed against A1, A2, A4 and A7 to A11 under Sections 143, 147, 148, 452, 326, 307 r/w Section 149 of IPC, to which, all of them pleaded not guilty and claimed to be tried. PWs 1 to 14 were examined, Exts.P1 to P17 were marked and MO1 series to MO3 series were identified.

6. On closure of prosecution evidence, accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought on record and according to them, they were falsely implicated due to some political rivalry. No defence evidence was adduced, except marking of Exts.D1 to D4 contradictions through prosecution witnesses. Ext.X1 was marked as witness exhibit.

7. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found accused Nos.1, 2, 4 and 7 to 11 guilty under Sections 143, 147, 148, 452, 326 and 307 r/w Section 149 of IPC and they were convicted thereunder. Each accused was sentenced to undergo rigorous imprisonment for four years and fine of Rs.5,000/- under Section 307 r/w Section 149 of IPC with a default sentence of simple imprisonment for one year, rigorous imprisonment for three years and fine of Rs.5,000/- under Section 452 r/w Section 149 of IPC with a default sentence of simple imprisonment for six months, and rigorous imprisonment for three years and fine of Rs.5,000/- under Section 326 r/w Section 149 of IPC with a default sentence of simple imprisonment for six months. No separate sentence was awarded under Sections 143, 147 and 148 r/w Section 149 of IPC, and substantive sentences were directed to run concurrently. Aggrieved by the conviction and sentence, A1, A2, A4 and A7 to A11 preferred this appeal.

8. Pending appeal, on 05.12.2021, the 4th appellant-Peeru (A7) passed away. Since the sentence includes fine amount also, the appeal will not get abated, in spite of his death. Learned counsel for the appellants was ready to argue the matter for the deceased 4th appellant also.

9. Heard learned counsel for the appellants and learned Public Prosecutor.

10. This is a case where 12 persons armed with deadly weapons like sword, chopper and iron bar, barged into the house of PW1 in the morning hours of 01.09.1998 and unleashed a massive attack and inflicted serious cut wounds on the body of PW1 and his two sons - PW2 and PW3. PW4-the wife of PW1 is the only occurrence witness apart from the injured.

11. Learned Public Prosecutor would argue that, the number of wounds suffered by PWs 1 to 3, the nature of injuries inflicted and the parts of their body where the injuries were inflicted etc. etc. are sufficient to prove the criminal object of the accused persons, to do away with the life of PWs 1 to 3. PWs 1 and 2 were still in their bed, since it was only 6 a.m, when the accused persons rammed into their house, by breaking open the door. All of them attacked PWs 1 to 3 with deadly weapon