EDAKKANDI DINESHAN @ P. DINESHAN Vs. STATE OF KERELA

JUDGEMENT

(1.) The present criminal appeal arises out of judgment and order dtd. 12/4/2011 passed by High Court of Kerala at Ernakulam, in Cri. Appeal No. 1040/2006. By the impugned judgment and order, the Appellants/Accused- A4 to A10 and A13 to A15 have been acquitted under Ss. 302 r/w 149 of the Indian Penal Code, 1860 (hereinafter 'IPC') while conviction and sentence against A1 to A3 and A11 and A12 was confirmed. Additionally, A3 was convicted and sentenced under Sec. 5 of the Explosive Substance Act,1908.

(2.) For the sake of brevity and for maintaining continuity the accused persons are referred as per their sequence in the trial.

(3.) The factual matrix of the case are that on 1/3/2002, Rashtriya Swayam Sevak Sangh/Vishva Hindu Parishad (in short 'RSS/VHP') had called for a hartal. The Hartal led to clashes between members of the Communist Party of India (M) (in short 'CPI (M)') and RSS. A group of 11 persons, afraid of the mob led by CPI(M), hid and stayed near a shed situated near the Meloor river. At midnight, they saw 11 persons coming from the eastern side and 5 persons coming from the northern side carrying deadly weapons like, axe, dagger and chopper. All the 11 but for the 2 deceased persons were alerted and rushed towards the river to save themselves. The two deceasednamely Sunil and Sujeesh, were asleep and thus, the mob inflicted fatal injuries on them. The body of Sujeesh was taken to a hospital in Thalassery where he was pronounced dead and based on the statement of PW-1, FIR No. 53/2002 dtd. 2/3/2002 was registered under Sec. 43, 147, 148, 341, 506(ii), 307, 302 r/w 149 IPC and Sec. 3, 5 of Explosive Substances Act, 1908 at P.S. Dharmadam on receipt of the report investigating agency was set in motion. PW-19 conducted the investigation and on 2/3/2002 body of the 2nd deceased person Sunil was found at a marshy land near the spot of occurrence in the morning. The inquest of both the dead bodies was conducted and inquest reports were prepared. Subsequently, post-mortem was done on the same day. A1, A9 and A11 were arrested on 6/3/2002. Pursuant to the disclosure statement of A11 made under Sec. 27 of The Indian Evidence Act, 1872 (hereinafter 'IEA'), recovery of the axe used in the murder was made from the bushes near the spot of occurrence. A2, A4, A10, A15 were arrested on 10/3/2002 and, based on the disclosure statement of A12, a chopper was recovered. A3, A5 to A8 and A12 were arrested on 16/3/2002. It is pertinent to note here that though one Ashraf was named in the FIR as A13, subsequently on 10/3/2002 a report for deletion of his name was moved by PW19 before the Ld. Magistrate stating that Ashraf was undergoing treatment at Mangalore on the date of incident. On completion of investigation, Chargesheet was filed against all the accused persons (A1 to A15). The Trial Court vide its judgment dtd. 24/4/2006 found all accused persons guilty under Sec. 143, 147, 506 (ii), and 302 r/w. 149 of IPC. A2,3,11,12 were also found guilty under Sec. 148 of IPC and under Sec. 5 of the Explosive Substance Act and A15 was completely acquitted of all charges.