IMPORTANT POINT
The absence of recovered weapons does not negate a conviction for attempted murder if credible eyewitness testimony and medical evidence support the charges.

JUDGMENT :

(C.S. SUDHA, J.)

In this appeal filed under Section 374(2) Cr.P.C. the appellants, who are accused nos.1 and 2 (A1 and A2) in S.C.No.141/2004 on the file of the Court of Session, Kozhikode challenge the conviction entered and sentence passed against them for the offences punishable under Sections 450 and 307 IPC.

2. The prosecution case as stated in the final report/charge sheet is – the accused persons, five in number, who are Muslims had enmity towards Hindus residing in Maradu Beach, Kozhikode. In order to disturb the communal harmony between the Hindus and Muslims, to promote enmity between the two religions and to cause the death of CW1, Rajendran, the accused along with 20 other persons formed themselves into an unlawful assembly at about 07:45 p.m. on 03/01/2002. They trespassed into the house of CW1, pelted stones resulting in the window panes in front of the house of CW1 being broken causing damages to the tune of more than Rs.3,000/- to him. After trespassing into the house of CW1, A1 and A2 inflicted grievous injuries on CW1 by hacking him with swords and thereby attempted to murder him. Hence, as per the final report/charge sheet, the accused persons were alleged to have committed the offences punishable under Section 143, 147, 148, 153A, 427, 450, 307 read with Section 149 IPC.

3. Crime no.20/2002, Beypore police station, that is, Ext.P6 FIR was registered by PW7, the then Sub Inspector based on Ext.P1 FIS of CW1, the injured. The initial investigation was conducted by PW9, Sub Inspector, Kozhikode City Trafic police station and thereafter by PW10, Circle Inspector, Cheruvannoor who on completion of investigation submitted the charge sheet/final report alleging the commission of the offences punishable under the aforementioned Sections by the accused persons.

4. On appearance of all the accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Kozhikode. The case was numbered as S.C.No.141/2004 and thereafter made over to the Special Additional Sessions Judge (Marad Cases), Kozhikode, for trial and disposal.

5. On behalf of the prosecution, PW1 to PW11 were examined and Exts.P1 to P10 and MO.1 to MO.2 were marked in support of the case. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.

6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. The first accued offered himself as a witness and hence he was examined as DW1. Exts.D1 and D2 are the contradictions brought out in the testimony of PW1 and PW2.

7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find the accused persons guilty of the offences punishable under Sections 143, 147, 148, 427, 153A read with Section 149 IPC and hence they were acquitted under Section 235(1) Cr.P.C. in respect of the said offences. Accused Nos. 3 and 5 were also found not guilty of the offences punishable under Section 450 and 307 IPC. Hence they were acquitted under Section 235(1) Cr.P.C. However, A1 and A2 have been found guilty under Section 235(2) Cr.P.C. of the offences punishable under Section 450 and 307 IPC. Hence, they have been sentenced to rigorous imprisonment for a period of five years and to a fine of Rs.25,000/- and in default to undergo simple imprisonment for six months for the offence punishable under 307 IPC and to rigorous imprisonment for a period of two years and to a fine of Rs.5,000/- and in default, to simple imprisonment for a period of two months for the offen