STATE OF KERALA Vs. NAZAR

JUDGEMENT

(1.) Criminal Appeal No. 1043/99 has been preferred by the State of kerala while Criminal Appeal No. 1044/99 has been preferred by Yesudas @ Tommy, who was accused No. 1 in the trial. Both the judgments are directed against the common judgment and order of the High Court of Kerala at ernakulam dated 22.7.1993 whereby the High court disposed of several appeals preferred by different accused including appeal filed by yesudas @ Tommy, the appellant in Criminal appeal No. 1044/99. It appears that during the pendency of the appeal before this Court, appellant Yesudas @ Tommy was released on parole but he committed suicide. The appeal preferred by him, therefore, abates. The appeal preferred by the State of Kerala was originally preferred against A2, A3, A5 and A7. This Court granted special leave only against a2 and dismissed the special leave petition as against A3, A5 and A7. We may only notice at this stage that 13 accused had been put up for trial before the court of sessions, Alappuzha in sessions Case No. 39/96. The trial court by its judgment and order dated 11.12.1997 convicted a1 of the offence under Section 302 ipc and sentenced him to death. A2, A3, A5 and A7 were convicted of the offence punishable under Sections 302 read with Section 149 ipc and sentenced to imprisonment for life. They were also found guilty of some other minor offences. On appeal, the High Court declined the death reference but finding A1 yesudas @ Tommy guilty of the offence punishable under Section 302 IPC sentenced him to imprisonment for life. So far as A2, A3, A5 and A7 are concerned, it found that there was no evidence to prove that there was an unlawful assembly, and, therefore, acquitted them of all the charges levelled against them. As noticed above, the. appeal preferred by Yesudas @ Tommy has abated and the appeal of the State of Kerala is confined only against A-2 Nazar.

(2.) We have gone through the judgments of the courts below. The learned counsel for the parties have brought to our notice the relevant evidence on record. We are satisfied that the High Court has correctly recorded the finding, that Section 149 has no application in this case. The facts clearly disclose that the accused did not act pursuant to a common unlawful object, because there was in fact no unlawful assembly. Each one of the accused was acting on his own and, therefore, could be held guilty only for his individual act.

(3.) So far as the allegations against A2 are concerned, he is alleged to have injured PWs 1 and 2. PW2 has turned hostile and did not support the case of the prosecution.