NANU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Judgment of the Court was delivered by Koshy, J. -- 13 persons were charge sheeted for offences punishable under S.143, 147, 148, 449, 324 and 302 read with S.149 of the Indian Penal Code. Original first accused was absconding and, therefore, case against him was split up and only 12 accused faced trial. Out of the accused faced trial, accused Nos. 1, 3 and 12 were found not guilty and they were acquitted. Other accused Nos. 2 and 4 to 11 were found guilty of the offences punishable under S.143, 147,302 and 324 read with S.149 I.P.C. Accused Nos. 4 and 10 were further found guilty of the offences punishable under S.148 I.P.C. All the nine accused who were found guilty were sentenced for life under S.302 read with 149 I.P.C. In addition to the life imprisonment, they were also directed to pay a fine of Rs.15,000 each with a default sentence of rigorous imprisonment for one year except accused No.10 fine imposed on accused No. 10 was Rs. 30,000 with a default sentence of rigorous imprisonment for three years. There was a further direction that accused No.10 shall not be released from the prison unless he had served at least 20 years of imprisonment including the period already undergone by him in the custody. Accused Nos. 2, 5 to 11 were sentenced for two years for the offences punishable under S.147 I.P.C. They and accused No. 4 were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000 with a default sentence of rigorous imprisonment for one year for the offences punishable under S.449 read with S.149 I.P.C. Accused No.10 was also sentenced for rigorous imprisonment one year for the above offence; but fine imposed on him was Rs. 20,000, Accused Nos. 2, 4 to 11 were sentenced for rigorous imprisonment for three years for offences punishable under S.324 read with S.149 I.P.C. Accused No. 4 and 10 were further sentenced for the offences under S.148 I.P.C for three years. There was also a direction to run the sentence concurrently.

(2.) PWS 1 and 2, namely son and wife of the deceased who were natural eye witnesses tendered evidence in support of the prosecution. The fact that the deceased, father of PW 1 was brutally murdered by a group of people consisting of more than ten persons who trespassed into the house in the night with deadly weapons is not disputed. The only question really to be considered is the identity of the persons involved in the incident. Admittedly, neither PW 1 nor PW 2 have previous acquaintance with the accused except accused No.12. They deposed in court that accused No. 12 was not among the crowd who attacked the deceased and his name was implicated as narrated by others. Hence, accused No.12 was acquitted by the Sessions Court. Neither PW 1 nor PW 2 identified accused Nos.1 and 3 during identification parade. They did not properly identified them in the court also. Hence, they were also acquitted. Reason for murder is political rivalry. The deceased was the Secretary of the Nadapuram Assembly Constituency of the B.J.P. and accused were alleged to be the activists of Marxist party. It has come out in evidence that during the relevant time there were intense rivalry between B.J.P. workers and Marxist party workers and many crimes were registered during those days. Due to the group clash, many murders were also reported from the same locality. Main question to be considered in this appeal is whether the appellant/accused have participated in the unlawful assembly in the commission of the crime and whether their identification was proper. Then, they saw the four persons who came earlier alongwith another two, that is

(3.) PW 2 is sleeping in corridor. Then, repeated the same story. She also identified that accused Nos. 4, 5, 6 and 10 are the persons who were in the verandah who came at 9.00 p.m. with the light from the lantern and torch. She was not able to identify other persons who came at 11 O'clock. She also deposed that there was rain at that time. In cross examination, main attempt was to discredit the identification and there was a suggestion and she had some illicit relationship with one Soman. But, that was denied by her and according to her it was a story spread by the Marxist to malign her. It is pertinent to note that no evidence of such relationship was produced by the defence. Brother of PW 2 is examined as PW 4. He deposed that he is conducting an ayurvedic medical shop. He came to the scene on hearing the cry after the incident. He could see about 40 persons running away from the courtyard of the house of the deceased. He chased some of the persons. He could identify accused Nos. 2,3,4 and 6 among the said persons who were running away from the spot. He went to the house alongwith CWs 5, 6 and 7 and took the deceased to the hospital. Other witnesses examined were official witnesses. PW 3 is the Judicial Magistrate of the First Class who conducted the test identification parade. The test identification parade was conducted on 20-8-1997. All the accused were apprehended during the first week of July 1997. They were produced before the Court twice before the test identification parade while remanding them. Test identification parade was conducted strictly in accordance with the rules. Ext. P 3 is the proceedings of PW 3 regarding the test identification parade. Ongoing through the report, we see that the test identification parade was proper in all respects. In the first round, PW 1 identified eight accused. They are accused Nos. 2, 4, 6, 8, 9, 10 and 12 and absconding accused. He also identified four non suspects as accused. During the second round, he identified three more persons (A 5, A 7 and A 11) along with other accused whom he identified in the first round and further identified four non suspects as accused. Thus, PW 1 identified all accused except A 1 and A 3, but, he identified some non suspects also as accused. PW 2 identified accused Nos. 4, 5, 10 and 12 in the first round. During second round, he identified only accused Nos. 5, 10 and 12. Common identification was only with regard to accused Nos. 5 and 10. Accused No. 12 was not involved in the incident according to PW 1 and PW 2.