RAMACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 7.4.2005 passed by the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 1675 and 1955 of 2003 by which the High Court, while affirming the findings of fact, modified the judgment and order of the trial court dated 29.8.2003 in Sessions Case No. 58 of 2001 i.e. Criminal Appeal No. 1675 of 2003 stood dismissed, while Criminal Appeal No. 1955 of 2003 was partly allowed.

(2.) Facts and circumstance giving rise to this appeal are that:

(3.) Shri C.N. Sree Kumar, learned counsel appearing for the appellants, has submitted that courts below erred in making the case of some of the appellants distinguishable from others as one set of appellants stood convicted under Sections 302/149 IPC etc. and another set of appellants has been convicted under Sections 307/149 IPC etc., though, under the facts and circumstances of the case, no distinction is permissible. Even, if the case of some of the appellants has to be separated from others, the set of appellants who have been convicted under Section 302/149 IPC would have been convicted under Section 304 - Part I IPC. This was necessary in view of the evidence of the doctors, who conducted the postmortem examination of Kuttappan (deceased) and examined other persons. The appellants had not proceeded with common object to kill any person in as much as to kill Kuttappan, thus, provisions of Section 149 IPC are not attracted. From the facts available on record, inference can be drawn that some of the appellants had an object to catch hold of Sobhanan (PW.2), however, there was no intention to kill him. No independent witness has been examined and all the injured witnesses had been very close to the deceased. In a case, where a very large number of assailants are there and the incident is over in a short span of time, it is not possible for the eye-witnesses to identify all the accused and give detailed description of participation of each of them. Thus, evidence of the eye-witnesses cannot be relied upon. The appeal deserves to be allowed.