ALI, S/O AHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is filed by the 2nd accused in SC No.84/2002 of the Additional District and Sessions Court, North Paravur. The 2nd accused alone was convicted and he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for six months for the offence under section 324 of I.P.C. He is sentenced to undergo imprisonment for life and to pay a fine of Rs. 1 lakhs and in default to undergo imprisonment for three years for offence under section 307 of I.P.C., to undergo imprisonment for life and to pay a fine of Rs. 1 lakh in default to undergo rigorous imprisonment for 3 years for offence under section 302 of I.P.C.

(2.) The accused had been convicted for having committed the murder of two persons viz., Aliyar and Abu. The prosecution alleged that accused 1 and 2 and the deceased were first cousins. The family members joined together and contributed money for conducting marriage of Noorjahan, daughter of CW2. The marriage was held on 23/8/1998. In connection with the marriage, they had to conduct a ceremony on 7/9/1998. On the previous day, I.e., on 6/9/1998, there was an occasion by which Aliyar who was entrusted with the contributions was asked for accounts. This resulted in an altercation between the first accused and CW2. At that time, 2nd accused interfered, caught hold of the neck of CW2 and kicked on his abdomen. CW2 informed the matter to the other relatives. At about 7 pm on the same day, Aliyar and his brothers reached the house of his uncle to make enquiries. Since 2nd accused was not there, they returned. When the 2nd accused came back, two children came to the house of deceased and informed them that Ali had come and they were invited. According to the prosecution, at the relevant time, accused formed themselves into an unlawful assembly. They were armed with dangerous weapons like knife, chopper, sickle and stick. When Aliyar and Abu came, they were attacked on the gravel road in front of the house. Prosecution alleges that all the accused had committed several overt acts and serious injuries were inflicted on CW2 to CW6. The injured were taken to the hospital. Aliyar died on the way and Abu succumbed to the injuries at 7.00 pm on 9/9/1998. Pursuant to the aforesaid incident, crime was registered against five of the accused for offence under sections 143, 147, 148, 323, 324, 307 and 302 r/w Section 149 of IPC. After conducting investigation, final report was filed before the Judicial First Class Magistrate Court-I Aluva and the matter was committed to the Court of Sessions and made over to the Additional Sessions Court for trial. During the pendency of the case before the Court, A1 died on 23/6/2005 and the case against him got abated. Charge was framed only on 24/1/2011. The prosecution examined PW1 to PW26 and marked Exts.P1 to P30. MO1 to MO11 were produced and identified. After completing the procedural formalities, the 2nd accused alone was convicted as stated above. Accused Nos.3 to 5 were acquitted.

(3.) Learned counsel for the appellant submitted that there is absolutely no evidence against the 2nd accused. The entire case revolved around the fact that the first accused had committed the crime and when it was known that the first accused died before trial, all the witnesses have turned against the second accused. In fact, the 2nd accused had not done any overt act as alleged. That apart, there are several lacuna in the investigation and the prosecution was unable to prove the case beyond reasonable doubt against the second accused. Learned counsel therefore sought for an acquittal of the second accused as well.