STATE OF KERALA Vs. ISMAIL

JUDGEMENT

(1.) These appeals arise from S.C.Nos.609 of 2015 and 1234 of 2015 on the files of the Court of the Special Additional Sessions Judge (Marad Cases), Kozhikode. The cases were tried together as they were registered in respect of the same occurrence. There were altogether 17 accused, and the trial court acquitted all of them. Crl.Appeal.No.988 of 2016 is preferred by the State challenging the acquittal of the accused. The remaining appeals are preferred by the victims, of which Crl.Appeal (v) No. 62 of 2017 is by the father of Shibin who succumbed to the injuries sustained in the occurrence and Crl.Appeal (v) No.107 of 2017 is preferred by some among the persons who sustained injuries in the occurrence.

(2.) The occurrence took place on 22/1/2015. Apart from the accused, one Muhammed Aseeb, a juvenile in conflict with law, hereinafter referred to as "the Juvenile", was also involved in the crime. There was a religious ceremony in the house of the Juvenile on 22/1/2015. Food was taken from the house of the Juvenile after the ceremony to the house of the first accused by the sixth accused in a motor cycle bearing registration No.KL-18/D 6024 with the fifth accused in the pillion of the motor cycle. When the motor cycle passed through the road leading to Vellur from Thuneri, a few activists of the organisation DYFI namely Akhil, Rakhil, Lineesh and the deceased, Shibin were standing on the side of the road in front of the house of one Anilkumar. As the re-formation work of the said road was going on, dust scattered when the sixth accused had ridden the motor cycle through the same. The DYFI activists questioned the sixth accused for having ridden the motor cycle in such a manner causing dust to scatter and there occurred a verbal altercation between the DYFI activists and accused 5 and 6 on account of the same. After providing food in the house of the first accused, accused 5 and 6 returned through the same road. This time, the fifth accused was not in the pillion of the motor cycle. Instead, he was riding another motor cycle bearing registration No.KL-18/D 7061. At about 10.00 p.m., an altercation took place on their way back also at the same place. The accusation in the case is that when the altercation was going on between the DYFI activists on one hand and accused 5 and 6 on the other hand, accused 2, 4, 7, 8, 16 and the Juvenile arrived at the said place and supported accused 5 and 6 and thereupon, there occurred a quarrel between the groups. It is alleged that on hearing the noise from the quarrel, three persons namely, Vijeesh, Aneesh and Rajesh who were in the midst of some work in the vicinity arrived there and tried to pacify the groups involved in the quarrel and attempted to separate them to the two sides of the road, the accused to the western side and the DYFI activists to the eastern side. It is also alleged that accused 1, 3 and 15 then arrived there in a scooter bearing registration No.KL18/M- 8285 carrying few weapons. Accused 1, 3 and 15 thereupon asked the remaining accused who were present there then to come towards them, handed over to them the weapons which they carried and gave some instructions. It is further alleged that thereupon, accused 1 to 8, 15, 16 and the Juvenile formed themselves into an unlawful assembly with the common object of committing murder of the DYFI activists, namely, Akhil, Rakhil, Lineesh and Shibin as also Vijeesh, Aneesh and Rajesh and attacked them with the weapons carried by the said accused and also with a torch. It is further alleged that the third accused started the attack by beating Aneesh with the torch carried by him on the face of Aneesh and also on his left hand and thereupon, the sixteenth accused beat Vijeesh with an iron rod on his head, the second accused caught hold of Rakhil and the third accused caused a cut injury on his back with an axe, the first accused caused a cut injury with an axe on the back of Lineesh, the fourth accused caused a cut injury on the hand of Lineesh with a sword and the fifteenth accused snatched a knife from the fifth accused and caused an injury on the back of Rajesh with the same. It is also alleged that due to the attack by the third accused, Akhil sustained fracture on his mandible and his teeth were loosened, Aneesh sustained fracture on his left mandible, left side of face as also left index finger, Rakhil sustained grievous hurt on his back and Vijeesh and Rajesh sustained hurt. It was also alleged that the first accused caused a cut injury on the right chest of Shibin with an axe and when he fell down, the second accused hacked him with a sword on his back and that Shibin succumbed to the said injuries. On the aforesaid allegations, accused 1 to 8, 15 and 16 were charged with the offences punishable under Ss. 143, 148, 326, 324, 307 and 302 read with Sec. 149 of the Indian Penal Code (IPC). There were also charges against the aforesaid accused and accused 9 to 14 under Ss. 201 and 212 of IPC.

(3.) The accused denied the charges. The prosecution thereupon examined 66 witnesses as PWs 1 to 66 and proved through them 151 documents as Exts.P1 to P151. MOs 1 to 65 are the material objects identified by the witnesses. Exts.D1 to D11 are the documents proved by the accused through the prosecution witnesses, and among them, Exts.D1 and D5 to D10 are case diary statements of some of the witnesses. On the closure of the evidence of the prosecution, when the accused were questioned under Sec. 313 of the Code of Criminal Procedure (the Code), they denied the incriminating circumstances against them and pleaded that they are innocent. As the Court of Session did not find the case to be one fit for acquittal under Sec. 232 of the Code, the accused were called upon to enter on their defence. The accused did not adduce any evidence. Thereupon, as noted, on a consideration of the evidence on record, the Court of Session found the accused not guilty of the charges and acquitted them.