SAIDU MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) Criminal Appeal Nos. 1207 of 2004 and 1083 of 2005 and Criminal Revision Petition No. 2373 of 2004 arise from the judgment rendered by the I Additional Sessions Judge, Thrissur in S.C. No. 201 of 1995, which, in turn, arose from C.P. No. 2 of 1994 of JFCM, Kunnamkulam (Crime No. 95 of 1993 of Kunnamkulam Police Station registered under Sections 143, 147, 148, 341, 342, 324 and 302 read with Section 149 of the Indian Penal Code). Criminal Appeal No. 1544 of 2004 is filed by the complainant in C.P.1 of 1995 on the file the JFCM Kunnamkulam from which S.C. 202 of 1995 arose. That Criminal Appeal is directed against the acquittal of the respondents in that appeal stated to have been passed in S.C. No. 202 of 1995.

(2.) The facts relevant for the disposal of the appeals and Criminal Revision Petition are as follows : Deceased Suresh Babu was an active worker of Bharatheeya Janatha Party (BJP for short). He was employed as a motor winding mechanic at Kunnamkulam. There were political clashes between the followers of Communist Party of India (Marxist) (CPI(M) for short) and BJP loyalists. At about 8.00 p.m. on 10-3-1993, deceased Suresh Babu was returning to his house in a Stage Carriage Bus by name Babu, bearing Registration No. KRH/03. When the bus reached Ottappilavu Centre at 8.15 p.m. the accused (20 persons) in Crime No. 95 of 1993 formed themselves into members of an unlawful assembly armed with deadly weapons like sticks, rafters, knife etc. stopped the bus. A1, A2, A4 and A5 entered into the bus, caught hold of Suresh Babu, who was sitting in one of the rear seats of the bus and pulled him out of the bus. He was taken to the front side of the bus. The first accused inflicted a stab injury on the back of the left side of the chest of Suresh Babu. He fell down on his front. The first accused inflicted two more stab injuries on the person of Suresh Babu. At that point of time, the other accused beat Suresh Babu with sticks and rafters. Thereafter the accused ran away from the spot. A person, who witnessed the incident, made a telephone call to the Kunnamkulam Police Station and informed P.W. 14, the Head Constable attached to the Kunnamkulam Police Station, that a clash was going on at Ottappilavu Centre. The caller did not disclose his identity. On getting the information, P.W. 14, along with Police Constables went to the place in a police jeep. By that time, all the shops at Ottappilavu Centre were closed and the area was deserted. The police party saw a person lying on the road margin with bleeding injuries. He was unconscious. He was immediately removed to the Kunnamkulam General Hospital. The Medical Officer on duty examined the person and pronounced him dead. P.W. 1 went to the police station and gave Ext. P1 First Information Statement at 12 midnight which was recorded by P.W. 15, the Sub Inspector of Police. P.W. 15 registered Ext. P1 (a) F.I.R. against 11 named persons and 190 others who could be identified by sight. P.W. 15 conducted inquest on the dead body of Suresh Babu between 9.45 a.m and 12.45 p.m. on 11-3- 1993. Thereafter post mortem examination on the dead body was conducted by P.W. 13, the Assistant Professor of Forensic Medicine attached to the Medical College Hospital, Thrissur. He issued Ext. P 11 post mortem certificate. Subsequent investigation was conducted by P.W. 16, the Circle Inspector of Police. He filed Ext. P14 report arraigning 20 persons as accused in the case. He filed the final report on 16-12-1994 before the Judicial First Class Magistrate, Kunnamkulam. The case was numbered as C.P. 2 of 1994. All the accused except A4 appeared before the Magistrate. The learned Magistrate split up and refiled the case as against A4 as C.P. 13 of 1993 and included the same in the Register for Long Pending Cases. The case as against other accused was committed to the Court of Sessions. That case was numbered as S.C. No. 201 of 1995.

(3.) Dissatisfied with the Investigation conducted by P.W. 16, P.W. 12, the father of the deceased filed M.P. No. 1500 of 1994, a complaint arraigning the 20 accused in Crime No. 95 of 1993 and another person alleging that they committed the offences punishable under Sections 120B, 34, 143, 147, 148, 341, 342, 302 read with Section 149 I.P.C. The learned Magistrate took cognizance on the complaint against 21 persons under Sections 143, 148, 342, 302 read with Setion 149 I.P.C. The learned Magistrate conducted enquiry under Section 202 of the Criminal Procedure Code. The complainant and 4 witnesses were examined. After conducting the enquiry the learned Magistrate passed an order which reads as follows :