RASI Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellants in these appeals, accused 1 to 7, in SC No. 301/2001, on the file of the Sessions Court, Kozhikode, have been charged for the offences punishable under S.143, 147, 148, 341, 506(ii) and 302 IPC read with S.149 IPC, and also for the offences punishable under S.27(2) and (3) of Indian Arms Act, 1959. Accused 1 to 5 were convicted for all the offences charged against them under IPC, and were sentenced to undergo rigorous imprisonment for three years respectively under S.148 and S.506(ii), and for life imprisonment under S.302 IPC, with a fine of Rs. 25,000 in default of which to undergo rigorous imprisonment for two years. They also have been sentenced to undergo simple imprisonment for one month under S.341 IPC. Accused 6 and 7 were convicted for all the offences charged under IPC, except 302 IPC, and sentenced on same terms as above. Accused 2 to 7 were also convicted under S.27(2) and (3) of the Arms Act, and were sentenced to undergo rigorous imprisonment for three years. This conviction is under challenge in these appeals. Crl. A. No. 76/2003 is by accused 1 to 3. Crl. A. No. 1187/2002 is by accused 4 and 6. Crl. A. No. 854/2003 is by the 5th accused and Crl. A. No. 1199/2002 is by the 7th accused. The contentions urged by the Counsel appearing in these appeals are almost same, mainly assailing the identity of the person as spoken to by PWs 1, 4 and 9. They also assail the recovery effected in bulk from the residence of the third accused.

(2.) The alleged incident happened as follows. During night on 4th March 1998, Alex Jacob, PW 4 Biju and CW 3 Ratheesh, met in a bar hotel called 'Hotel Maharani'. After taking liquor, they came to Mavoor Road to take food from a bunk shop near the footpath. There they saw the second accused quarrelling with PW 12, an alleged night flower,.Suharabi. Alex Jacob intervened in their quarrel, and asked the second accused to leave PW 12 alone. This resulted in push and pull between the second accused and Alex Jacob, as a result of which, the second accused fell down. Accused 1, 3, 4 and 5 were also present at that time. First accused threatened the said Alex Jacob, and all of them, A1 to A5, went to wards westwards. Few minutes later, accused persons came to the scene of occurrence, first accused carrying MO 1 dagger, and others carrying swords, identified as MO 2 series. There were wordly altercations between the two groups. It was at that time, PW 1 came in a motor bike. He identified Alex Jacob as his classmate, and therefore, tried to intervene in the quarrel. It was at that time, 5th accused threatened PW 1 by wielding the sword in his hand. When PW 1 withdrew, the first accused stabbed on the chest, below the collar bone with MO 1 dagger, of the Alex Jacob. On getting the stab injury, the said Alex Jacob ran towards the east and the accused persons when towards west. PW 1 and others hospitalised the injured Alex Jacob. When brought to the hospital, the Doctor certified Alex Jacob dead. Immediately, PW 1 launched Ext. P1 F. I. Statement at about 3.00 a.m.. on 5th March 1998 to PW 8, the Head Constable of Kasaba Police Station, Kozhikode. He registered Ext. P1(a) F.I.R. PW 15, the Circle Inspector of Police, undertook the investigation. Thereafter, the investigation was completed by PW 17, who was the successor in office of PW 16. PW 17 laid the charges.

(3.) The prosecution examined 18 witnesses, and marked 25 documents. M.Os. 1 to 12 were also identified. P. Ws. 1, 4 and 9 are the ocular witnesses. The identity of the persons were not revealed by either the first informant or the witnesses questioned by the police. This required test identification parade. This was conducted by Judicial First Class Magistrate-II, Kozhikode, upon orders from the Chief Judicial Magistrate. After appreciating the evidence on record, the court below found the accused guilty as aforesaid, and passed sentences as mentioned above.