Criminal Appeal Nos. 1156 of 2014 & 521 of 2015 (High Court of Kerala, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 26TH DAY OF SEPTEMBER, 2019 / 4TH ASWINA, 1941** ## **CRL.A.No.1156 OF 2014(A)** **AGAINST THE JUDGMENT IN SC 210/2012 DATED 08-10-2014 OF COURT OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES),KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN CP 10/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY** **CRIME NO.401/2011 OF Mukkom Police Station , Kozhikode** ## **APPELLANTS/ACCUSED NOS.1,3 TO 6 & 8TO 11:** **1 ABDURAHIMAN@CHERIYAPPU, AGED 55 YEARS, S/O.UNNIPOKKU, HAJI,KOLLOLATHIL,KODIYATHOOR.P.O,KOZHIKODE DISTRICT. 2 ABDUL KAREEM, AGED 22 YEARS, S/O.ABOOBACKER,KANNATTIL HOUSE,KODIYATHOOR.P.O,KOZHIKODE DISTRICT. 3 ABDUL NAZER @ AUTO NAZER AGED 31 YEARS S/O.ALEEMA,PALAKKADAN HOUSE,NARANJILATH,KODIYATHOOR.P.O,KOZHIKODE DISTRICT. 4 FAYAS, AGED 28 YEARS, S/O.ABOOBACKER,MALIYEKKAL HOUSE,KODIYATHOOR.P.O,KOZHIKODE DISTRICT. 5 NAJID, AGED 22 YEARS, S/O.HYDER,KALATHINGAL HOUSE,KODIYATHOOR.P.O, KOZHIKODE DISTRICT.** Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-2-: **6 RASHID, AGED 22 YEARS, S/O.ABDURAHIMAN,MURIKKOLI VEEDU,KODIYATHUR.P.O,KOZHIKODE DISTRICT.** - **7 HIJAZ RAHMAN @ KATTA, AGED 23 YEARS, S/O.ABDUL SALAM,ELLANGAL HOUSE,KODIYATHOOR.P.O,KOZHIKODE DISTRICT.** **8 MUHAMMAD JAMSHEER @ PALA JAMSHEER, AGED 25 YEARS, S/O.ABDUL NASAR,PALAKKADAN HOUSE,KODIYATHOOR.P.O,NARANJILATH,KOZHIKODE DISTRICT. 9 SHAHUL HAMEED.K., AGED 29 YEARS, S/O.MUHAMMEDUNNI,KOLAYIL HOUSE,KODIYATHOOR.P.O,KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.)[FOR A1 TO 7 AND 9] SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SRI.R.ANIL SRI.B.RAMAN PILLAI (SR.) (FOR A8) SRI.M.SUNILKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **OTHER PRESENT:** **SRI ALEX M THOMBRA SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2019, ALONG WITH CRA(V).521/2015, THE COURT ON 26-09-2019 DELIVERED THE FOLLOWING:** Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-3-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 26TH DAY OF SEPTEMBER, 2019/4TH ASWINA, 1941** ## **CRA(V).No.521 OF 2015** **[AGAINST THE JUDGMENT IN SC 210/2012 DATED 08-10-2014 OF COURT OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES),KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN CP 10/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY** **CRIME NO.401/2011 OF Mukkom Police Station , Kozhikode]** ## **APPELLANT:** **KATHALI KUNHAMU,KOTTUPURATH THENERI HOUSE,CHERUVADI(P.O),VIA-MAVOOR,KOZHIKODE DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS:** **1 ABDULRAHIMAN @ CHERIYAPPU, AGED 55 YEARS, S/O.UNNIPOKKU HAJI, KOLLOLATHIL, KODIYATHOOR.P.O., KOZHIKODE DISTRICT.** **2 MUHAMMAD SALIM AGED 23 YEARS S/O.ABOOBACKER,KANNATTIL HOUSE,KODIYATHOOR(P.O), KOZHIKODE DISTRICT,PIN-673602.** **3 ABDUL KARIM AGED 46 YEARS S/O MUHAMMED,PALAKKADAN HOUSE,KODIYATHOOR(P.O), KOZHIKODE DISTRICT,PIN-673602.** Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-4-: - **4 ABDUL NAZER @ AUTO NAZER, AGED 32 YEARS, S/O.ALEEMA,KOTTAKUZHIYIL HOUSE,NADAKKAL,KODIYATHOOR.P.O, KOZHIKODE DISTRICT,PIN-673602.** ## **5 FAYAS,** **AGED 29 YEARS,** **S/O.ABOOBACKER,MALIYEKKAL HOUSE,KODIYATHOOR(P.O), KOZHIKODE DISTRICT,PIN-673602.** **6 NAJID AGED 23 YEARS S/O HYDER,KALATHINGAL HOUSE,KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** **7 IRSHAD KUYYIL AGED 24 YEARS S/O.ABDURAHIMAN,KUUYYIL HOUSE,KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** **8 RASHID AGED 23 YEARS S/O.ABDURAHIMAN,PUTHENKADAVU HOUSE,KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** **9 HIJAZ RAHMAN @ KATTA, AGED 24 YEARS, S/O.ABDUL SALAM,ELLANGAL HOUSE,KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** - **10 MUHAMMED JAMSHEER @ PALA JAMSHEER, AGED 26 YEARS, S/O ABDUL NASAR,PALAKKADAN HOUSE(NARANJILATH), KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** - **11 SHAHUL HAMEED.K AGED 30 YEARS S/O.MUHAMMADUNNI,KOLAYIL HOUSE,KODIYATHOOR(P.O), KOZHIKODE DISTRICT, PIN-673602.** Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-5-: - **12 JAFFER @ BICHUTTA AGED 34 YEARS S/O.MUHAMMAD.K.T,KOLAYIL HOUSE,KEERANTHODIKA, KODIYATHOOR(P.O),KOZHIKODE DISTRICT,PIN-673602.** - **13 AYOOB.E AGED 26 YEARS S/O ABOOBACKER,EDAKKANDI KUYYIL HOUSE,KODIYATHOOR(P.O),KOZHIKODE DISTRICT, PIN-673602.** **14 MURSHID.K AGED 30 YEARS S/O.USMAN,KUYYIL(KOTTAMMAL),KODIYATHOOR(P.O), KOZHIKODE DISTRICT,PIN-673602.** - **15 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031.** **R1, R14 BY ADV. SRI.C.HARIKUMAR BY ADV. SRI.R.ANIL BY ADV. SRI.T.ANIL KUMAR BY ADV. SRI.MANU TOM R1, R12 BY ADV. SMT.MITHA SUDHINDRAN BY ADV. SRI.B.RAMAN PILLAI SR. BY ADV. SRI.A.RAJESH BY ADV. SRI.RENJITH RAJAPPAN BY ADV. SRI.M.SUNILKUMAR BY ADV. SRI.SUJESH MENON V.B. BY ADV. SRI.V.C.SARATH BY ADV. SMT.SANU S MALAKEEL BY ADV. SRI.THOMAS ABRAHAM NILACKAPPILLIL BY ADV. SRI.P.VIJAYA BHANU SR. BY ADV. SRI.M.VIVEK** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 20-08-2019, ALONG WITH CRL.A.1156/2014(A), THE COURT ON 26-09-2019 DELIVERED THE FOLLOWING:** Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-6-: **A.M.SHAFFIQUE & N.ANIL KUMAR, JJ. ----------------------------------------------------Crl.A.No.1156 of 2014 & Crl.A.(V)No.521 of 2015 'CR' ----------------------------------------------------Dated this the 26[th] day of September, 2019** ## **J U D G M E N T** ## **N.ANIL KUMAR, J:** By judgment dated 8.10.2014, the Special Additional Sessions Judge (Marad Cases), Kozhikode, in S.C.No.210/2012 convicted and sentenced the accused Nos.1,3,5,6,8,9,10 and 11 for the offences punishable under Sections 143,147,148,353 and 302 read with 149 of the Indian Penal Code (for short 'IPC') and accused Nos.4,5,6,8,9,10 and 11 for the offences punishable under Section 302 read with 120B IPC. Accused Nos.2,7,12,13 and 14 were found not guilty and were acquitted under Section 235(1) of the Code of Criminal Procedure (for short 'Cr.P.C.') 2. Challenging the conviction and sentence, accused Nos.1,3,4,5,6,8,9,10 and 11 filed Crl.A.No.1156/2014 before this Court. At the same time, PW8 in S.C.No.210/2012, who is none other than the father of deceased Shaheed Bava, filed Crl.A(V).No.521/2015 against the order of acquittal passed against accused Nos.2,7,12,13 and 14 and also for enhancement of the sentence awarded to the other accused. Respondents in this appeal are the accused 1 to 14 and the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-7-: State respectively. ## 3. The prosecution case, in brief, is hereinbelow:- The deceased Shaheed Bava is a native of Cheruvadi and was employed in the Gulf for some time. The deceased was a frequent visitor to the residence of PW2, whose husband was also employed in the Gulf at that time. On 22.10.2011 night, while the deceased was returning from the house of PW2 in his car, accused Nos.2,5 to 12 and 14 tried to obstruct the car and chased him upto his house, wherein the relatives of Shaheed Bava threatened them with dire consequences. Resultantly, they were forced to return Kodiyathur. Again, on 9.11.2011 at night time, Shaheed Bava came to the house of PW2 along with A4 in the latter's autorickshaw, while all the accused were waiting for another opportunity to wreak vengeance on him. As informed by the fourth accused, in whose autorickshaw the deceased had gone to the house of PW2, the other accused formed themselves into an unlawful assembly, armed with deadly weapons and in prosecution of their common object, beat up Shaheed Bava with iron rods and sticks. Thereafter, the critically injured deceased was dragged towards an electric post and he was tied with a plastic rope in the electric post. On information, Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-8-: one among the onlookers, PW4 and a Police Constable came to the spot and tried to save the deceased Shaheed Bava, who was unconscious by that time. However, the accused deliberately obstructed the Police and proclaimed that his deadbody alone will be allowed to be removed from the spot. Hence, more Police force was brought to the spot and the injured was taken to the KMCT Hospital, Mukkom and from there he was taken to the Baby Memorial Hospital, Kozhikode. However, he succumbed to the injuries after undergoing a major surgery on 13.11.2011. It is further alleged that A4 conspired with the other accused to murder Shaheed Bava, by making telephone calls between the accused. 4. Originally the case was registered pursuant to Ext.P1 statement given by PW1, who is the uncle of Shaheed Bava for the offence punishable under Section 308 of IPC. Thereafter it was converted to 307 IPC and on the death of Shaheed Bava, Section 353, 302 IPC r/w120B IPC were also included. PW41 was specially authorised to investigate into the crime and the Special Investigation Team headed by him after completion of the investigation laid the charge before the Judicial First Class Magistrate Court-II, Thamarassery. The learned Magistrate after complying with the usual Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-9-: formalities, committed the case to the Court of Sessions, Kozhikode. The learned Sessions Judge took cognizance of the offence punishable under Sections 120B,143,147,148,302,353 read with 149 of Indian Penal Code and the case was numbered as SC No.210/2012 and made over to the Additional Sessions Judge (Marad Cases), Kozhikode for trial and disposal. Pursuant to the summons issued from the court, all the accused appeared. They were enlarged on bail. After hearing the learned Special Public Prosecutor and the defence, the court below framed charge against the accused under Sections 120B,143,147,148, 353,302 r/w 149 of IPC. The charge was read over to which the accused pleaded not guilty. 5. In the trial that followed, PWs.1 to 42 were examined and marked Exts.P1 to P116 and identified MOs.1 to 28 on the prosecution side. On closing the evidence of prosecution, the accused were questioned under Section 313(1) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. Their defence is one of total denial. 6. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-10-: under Section 232 of Cr.P.C. The accused were therefore called upon to enter on their defence and to adduce evidence which they might have in support thereof. The defence examined one witness as DW1. 7. After the trial, the court below found accused 1,3,5,6,8,9,10 and 11 guilty for the offences under Section 143,147,148,353 and 302 read with 149 of IPC. A4,5,6,8,9,10 and 11 were again found guilty for the offences punishable under Section 302 read with 120B of IPC. All the above accused persons were sentenced to undergo imprisonment for life and accused Nos.1,3 and 4 were further sentenced to pay an amount of Rs.25,000/- as fine under Section 302 r/w 149 of the Indian Penal Code. The accused Nos.5,6,8,9,10 and 11 were sentenced to pay Rs.50,000/- as fine under Section 302 r/w Section 149 and 120B of the IPC. All the above accused except the fourth accused were also sentenced to undergo Rigorous Imprisonment for six months under Section 143 and Rigorous Imprisonment for one year under Section 148 IPC and Rigorous Imprisonment for six months for the offence under Section 353 IPC. The above sentences were ordered to be run concurrently. Accused Nos.2,7,12,13 and 14 were found not guilty and were acquitted. It was also ordered that Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-11-: if the fine amount was realised, a sum of Rs.2,00,000/- should be paid to PW8 as compensation under Section 357(1) of Cr.P.C. 8. PW1-K.T.C.Mammed is the uncle of the deceased Shaheed Bava. Shaheed Bava was a bachelor and was employed in the Gulf for some time. After returning from the Gulf, he used to visit the house of PW2. The local people including the accused were deeply annoyed by the frequent visits of Shaheed Bava to PW2's residence. On 9.11.2011 at about 11.45 p.m. PW1 received a telephone message from N.K.Ashraf, who was the then local Panchayath member, that Shaheed Bava was found lying near Kodiyathur Village Office on account of an assault sustained to him. PW1 informed this matter to his brother Kareem and thereupon, they proceeded to Kodiyathur in a motor cycle driven by Ajas, who is the son of his brother Kareem. When they reached Kodiyathur, nearly 200 people from the locality had assembled there. They saw Shaheed Bava lying in an unconscious state near an electric post surrounded by about 15 persons. While so, they were assaulting Shaheed Bava armed with deadly weapons such as iron rods and wooden sticks. As a result of the attack, blood was profusely oozing out from his nose and mouth. In the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-12-: meanwhile, one unidentifiable person came forward and attacked Shaheed Bava and PW1 somehow tried to prevent him from doing so. However, he could identify all the other persons, who assaulted Shaheed Bava. Pursuant to the information received, Police from Mukkom Police Station arrived at the scene of occurrence. The accused did not permit the Police to take Shaheed Bava to the hospital. While so, A1 uttered that the deadbody of Shaheed Bava alone would be taken to his house and if the Police was inclined to register a crime for murder, he would take the responsibility. Subsequently, the Sub Inspector of Police also came to the scene of occurrence. Shaheed Bava was taken to the K.M.C.T. Hospital, Mukkom. As he had sustained severe injuries, he was referred to the Medical College Hospital, Kozhikode for better management. To facilitiate urgent treatment, Shaheed Bava was taken to Baby Memorial Hospital, Kozhikode. Stating the above details, PW1 gave Ext.P1 First Information Statement before the Police. PW1 stated that he identified all the 14 accused subsequent to their arrest by the Police at the Police Station. PW1 identified A1,A3,A4 and A9 before court. 9. PW2 Remla @ Poovi is the mother of PW26 Baby Jilna. PW2 was residing very near to Kodiyathur Village Office Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-13-: for the last five years along with her father and three children. The husband of PW2 was employed in the Gulf. Her younger son was aged 12 years on the date of occurrence. According to her, the deceased Shaheed Bava was maintaining a good relationship with her family. Her husband had full knowledge about their relationship and he had whatsoever no objection for the same. According to her, on 22.10.2011, the deceased Shaheed Bava came to her house to give some money to her. When he was returning from her house at 1 a.m., some persons from the locality made an attempt to obstruct his car and while so, Shaheed Bava made an attempt to hit them. Thereafter, Shaheed Bava came to her house on 9.11.2011 at 10 p.m. He had returned from the house at 11 p.m. When enquired about the prior incident, Shaheed Bava told her that everything was settled between them. He also told her that A4 was there to take him back and that he had come in the autorickshaw of A4. After some time, he telephoned A4 and returned to the road. When Shaheed Bava left her house, she closed the door and while so, she heard a loud cry from outside the house. When she opened the front door, she saw A10 Jamsheer hitting the head of Shaheed Bava with a wooden reaper. A6 caught hold of Shaheed Bava and while Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-14-: so, A5 started hitting him with a wooden stick. A6 kicked him and A9 caught hold of his shirt and pushed him against the compound wall. A1 and A8 kicked him on his chest. Thereafter, he was dragged to the electric post and both his hands and legs were tied by MO3 plastic rope. PW2 identified A11 as the person, who had tied Shaheed Bava along with A3 and A12. According to PW2, despite the arrival of the Police, the accused did not permit them to take the injured to the hospital. After some time, the Sub Inspector of Police came to the spot and took Shaheed Bava to the hospital. PW2 identified MOs.1 and 2 as the weapons used by the accused. 10. PW26 supported the version of PW2 in full. She stated that Shaheed Bava maintained a good relationship with her family and he used to visit her house. According to her, she treated Shaheed Bava as her own brother. On 22.10.2011 Shaheed Bava came to her house at about 11.30 pm in his car. There were some untoward incidents while he was returning to his house. Again on 9.11.2011, Shaheed Bava came to her house at about 10 pm. along with A4. At that time, Shaheed Bava told her that there would not be any problem as the matter was settled. She identified MO10 as the mobile phone used by Shaheed Bava at the time of Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-15-: occurrence. His mobile number was 9745797004. According to her, at about 11 pm, when Shaheed Bava left her house, she heard a loud cry from outside the house. Along with PW2, she went to the courtyard where she saw A10 beating Shaheed Bava with a wooden stick. She identified A10 and MOs.2 and 7 as the wooden sticks used by the accused to beat Shaheed Bava. Although Shaheed Bava cried aloud and prayed for mercy, A5 Fayas brought a wooden stick and started beating it on the head of Shaheed Bava. She also identified A5 before court. A6 Najid caught Bava and kicked him on his belly with his knee. Thereafter, A9 caught hold of the shirt of Bava and smashed his head on the compound wall of PW3. Thereafter, A1 Abdurahiman @ Cheriyappu, A3 Abdul Kareem, A8 Rashid, A11 Shahul Hameed and A14 Murshid joined them, hitting Shaheed Bava with sticks and beating with their hands. She also identified them before court. When Shaheed Bava was about to collapse, A1 and A8 kicked him on the chest. MO3 platic rope was brought, the hands and legs of Shaheed Bava were tied and he was dragged towards an electric post and tied there. She also identified A11 Shahul Hameed, A3 Abdul Kareem and A6 Najid, who had tied Shaheed Bava with MO3 rope to the nearby electric post. She Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-16-: further identified A2 Muhammad Salim, A5 Fayas, A7 Irshad Kuyyil and A13 Ayoob and who prevented the police from taking Bava to the hospital. She stated that she witnessed the occurrence in the presence of electric light. 11. PW4 was the Assistant Sub Inspector of Police attached to the Mukkom Police Station. He was holding G.D.charge of the Police Station on that day. At about 12 o' clock, in the night, he received a telephone message that a person was wrongfully restrained and assaulted by a group of people near the Kodiyathur Village Office. He recorded the information in the G.D. and proceeded to the spot in the motor cycle driven by Sr.C.P.O.Anil. When they reached the spot, they found a person lying unconscious near an electric post surrounded by 15 persons. They could notice the blood bleeding from his nostrils and mouth. Considering the plight of the victim, PW4 told the assailants that immediate medical care should be given to the injured. Despite the request, he was prevented from doing so. When PW1 and one Kareem made an attempt to take the injured to the hospital, A6 uttered abusive words against them and prevented them from taking the injured to the hospital. In view of the obstruction on the part of the assailants, he had contacted the Sub Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-17-: Inspector of Police to come with sufficient police force to the scene of occurrence. The Sub Inspector of Police arrived immediately and they took the injured in the Police jeep to KMCT Hospital and from there, the relatives of Shaheed Bava took him to Baby Memorial Hospital. PW4 identified Ext.P6 entry of G.D. dated 9.11.2011 to prove that he received information that one person was assaulted in front of the village office. 12. PW8 is the father of deceased Shaheed Bava. The telephone number of Shaheed Bava was 9745797004. He stated that on 9.11.2011 at about 11.45 pm, he received a phone message from his brother Kareem that his son Shaheed Bava was found lying in an unconscious state near Kodiyathur Village Office. On getting the information, he proceeded to the spot. However, apprehending danger, he did not go to the spot directly. Later, he received an information that the Sub Inspector had taken his son to the hospital. Accordingly, he went to the hospital to see his son. His son was fully unconscious then. On 10.11.2011 at about 3.40 am, the Neuro Surgeon attached to the Baby Memorial Hospital had conducted a surgery on the head of the injured. However, the victim succumbed to the injuries on 13.11.2011. Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-18-: He further stated that Bava was unconscious till his death. He also stated that on 22.10.2011 at around 2 am, some persons from the locality came to his house complaining that Bava had made an attempt to hit their body with his car. He identified A2 Muhammad Salim, A5 Fayas, A6 Najid, A8 Rashid, A9 Hijas Rahman @ Katta and A11 Shahul Hameed, as the persons who came to his house on 22.10.2011. PW8 also identified MO5 mobile phone alleged to have used by Shaheed Bava. 13. PW28 was the Duty Medical Officer, Baby Memorial Hospital, Kozhikode on 10.11.2011. While he was working as a Casualty Medical Officer, he had examined Shaheed Bava at 8.10 a.m. and noted the following injuries:- 1) Lacerated injury on the left buccale mucosa. 2) Contusion right eye brow. 3) Contusion root of the nose. 4) Multiple abrasion on several parts of the body. PW28 identified Ext.P49 case sheet maintained in the hospital. He stated that the patient was referred to the Neuro Surgeon for better management. 14. PW33 was the Consultant Neuro Surgeon attached to the Baby Memorial Hospital on 10.11.2011. He Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-19-: had examined Shaheed Bava and conducted surgery on the patient at 3.40 am on that day. According to him, the injured had sustained head injuries and CT scan revealed that there was extra dura and intra dura hemorrhages. He added that the injuries sustained to the head were possible by beating with sticks and these injuries are sufficient to cause death in the ordinary course of nature. 15. PW34 was the Casualty Medical Officer of Baby Memorial Hospital, Kozhikode on 10.11.2011. According to him, on 10.11.2011 at 3.10 am, Bava was taken to the casualty with an allegation of assault by a group of people at Kodiyathur. He had examined the injured and issued Ext.P59 wound certificate. 16. PW35 Dr.Prasannan, the Professor of Forensic Medicine, Medical College Hospital, Kozhikode conducted autopsy on the dead body of Shaheed Bava on 14.11.2011 and issued Ext.60 postmortem certificate. PW35 noted the following ante mortem injuries on the body of the deceased. - “(1) Sutured incised wound 27 cm long, curved with concavity down wards on left side of head (surgical). - (2) Abraded contusion 5x3cm, vertical on left side of forehead extending to top of head, 5cm away from midline and 4cm above eyebrow. - (3) Abraded contusion 6x3cm, transverse, 2cm behind upper end of injury no.2, 2cm away from midline, on top of left side of head. - (4) Abrasion 3.5x0.5cm, oblique on right side of forehead, Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-20-: lower left end 0.5cm away from midline and 3cm above eyebrow. - (5) Transverse graze abrasion 2x0.5cm, at the lower end of injury no.4. - (6) Contusion 3x1cm, oblique with central area of pallor along its middle portion on right side of forehead, lower left end 1cm, above middle eyebrow. - (7) Multiple abrasions over an area 5x2cm with vertical graze pattern, on right side of face 5cm in front of ear. - (8) Linear abrasion 1cm, oblique on right side of forehead, 8cm away from midline and 2cm above eyebrow. - (9) Abrasion 1x0.3cm on front aspect of right ear lobule. - (10) Abrasion 1x0.5cm, on edge of right earlobe, 1.5cm below top. - (11) Abrasion 3x1cm oblique, on back of middle of left earlobe. - (12) Abrasion 5x3cm with vertical graze pattern on left side of face, 1.5cm to the left of eye. - (13) Pressure abrasion 12x0.6cm, vertical with transverse stripe pattern, on front of left shoulder extending to armpit, upper end extending to shoulder top. - (14) contusion 4x2x0.3cm, transverse, at outer aspect of left elbow. - (15) Four circular contusions 0.5cm diameter each, 0.2cm deep placed one below other, 1cm apart, in an oblique line, on front of left upper arm, 7cm below front fold of axilla. Similar contusion 0.3cm diameter, 1.5cm to the left of upper most one. - (16) Abrasion, 2.5x0.2cm, vertical on back of left upper arm, 14cm above elbow. - (17) Abrasion 3.5x1cm, transverse on back of left forearm extending to outer aspect 2cm above wrist. - (18) Abraded contusion 3.5x2.5x0.2cm, with centre free portion 1.5cm broad on top of left shoulder, transverse at root of neck. - (19) Superficial laceration 1.5x0.2cm, on top of left shoulder, towards back, 10cm away from neck. - (20) Abrasion 1x0.3cm transverse on left side of back of chest; 12cm away from midline and 6cm below shoulder top. - (21) Curved linear abrasion with concavity to left, 0.7cm long on back of left side of chest, 10cm below shoulder top, 5.5cm below injury no.20 (nail mark). - (22) Transverse graze abrasion 4x3cm on top of left shoulder, towards outer aspect. - (23) Vertical graze abrasion 9x4cm on left side of back of chest 15cm away from midline and 5cm below shoulder blade. Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-21-: - (24) Multiple small abrasions over an area 6x3cm at outer aspect of left side of abdomen extending to back. - (25) Multiple abrasions over an area 12x2-3cm at outer aspect of left buttock extending to thigh. - (26) Oblique graze abrasion 12x3cm on lower part of left buttock, lower right end extending to thigh. - (27) Multiple abrasions 6x4cm on front of left knee. - (28) Vertical graze abrasion 2.5x2cm, on inner aspect of left knee. - (29) Transverse graze abrasion 1.5x1cm at outer aspect of left ankle. - (30) Vertical graze abrasion 2.5x2cm on front of left leg 5cm above ankle. - (31) Abrasion 1x0.2cm curved with concavity to left of front of left leg 20cm below knee. (nail mark). - (32) Abrasion 0.5x0.5cm on upper aspect of middle of right foot. - (33) Vertical graze abrasion 6x1 to 2cm at outer aspect of right ankle. - (34) Abraded contusion 2x0.5cm, curved with concavity downwards, on right side of back of chest, 1cm away from midline, 7cm below shoulder. - (35) Abrasion 1x0.5cm, on left side of back of chest, 5cm away from midline, 7cm below shoulder. - (36) Contusion 15x2x0.2cm, with central normal area 1.5cm broad along its middle, on back of right side of shoulder extending to upper arm, transverse, 6cm below shoulder top, 8cm away from midline. - (37) Abrasion 0.2x0.2cm, on back of right index finger at its root. - (38) Abrasion 0.3x0.3cm, on back of right wrist. - (39) Oblique graze abrasion 1x0.3cm, on back of right forearm, 10cm above wrist. - (40) Transverse graze abrasion 5x5cm, on back of right elbow extending to outer aspect. - (41) Vertical graze abrasion 2.5x0.5cm, on back of right forearm, 3cm below tip of elbow. - (42) Contusion 12x1x0.2cm, with central normal area along its length, on back of right upper arm, oblique, lower end 14cm above tip of elbow. - (43) Contusion 1x0.1cm, on right side of front of chest 8cm away from midline 6.5cm below collar bone. Similar injury 3.5cm above the 1[st] one. - (44) Incised sutured wound 1cm long, transverse on right side of front of abdomen. Underneath the injury a flap of skull bone (9x8cm) was present. (surgical) Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-22-: - (45) Multiple spotted abrasions over an area 5x2cm on front of upper part of right thigh. - (46) Oblique graze abrasion 6x6cm on front of right knee. (47) Contusion 1x1x0.2cm at inner aspect of left side of lower lip 2cm away from midline. - (48) Contusion 2.5x1.5x0.5cm on upper lip just to the right of midline. - (49) Abrasion 0.5x0.5cm on right side of front of lower jaw 0.7cm away from midline. - (50) Transverse skin contusion with depressed pale central part along its length 0.6cm broad, 4 in number on front of left forearm, 4to 5cm long extending to outer aspect, 1 to 3cm apart one below the other. - All abrasions were covered by brown scab and contusions reddish brown in colour. - (51) On reflection of scalp there was contusion (dark red) on left half of front, left side and back of head (30x8x1cm) there was a skull defect 9x8cm on left side of skull vault, through which part of brain was protruding. Brain was soft and oedematous. Subdural blood clots present over left side of brain (over cerebral hemisphere 7x7x2cm) subarachnoid bleeding present on entire surface of brain. Contusion with necrosis of brain present at under aspect of right fronto temporal region of brain.” 17. PW35 stated before the trial court that the deceased died as a result of blunt injuries sustained to his head. When examined before court, PW35 opined that he had noted 51 ante mortem injuries and the blunt injuries sustained to the head are fatal and sufficient to cause death in the ordinary course of nature. PW35 opined that the injuries could be caused by beating with MO2 wooden rafter and MO1 iron rod. Thus it is clear that Shaheed Bava died as a result of sustaining head injury on 9.11.2011 night. 18. PW37, the then ASI attached to the Mukkom Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-23-: Police Station registered Ext.P1 statement of PW1 and entrusted the same to PW39. On the strength of Ext.P1, PW39 registered Ext.P61 FIR of Mukkom Police Station. Thereafter, investigation was taken over by PW40-the Circle Inspector of Police, Koduvally. He visited the place of occurrence and prepared Ext.P3 observation mahazar. During the course of investigation, he received information that the injured Shaheed Bava had succumbed to the injuries. Immediately, he went to the Baby Memorial Hosptial, Kozhikode and prepared Ext.P62 inquest report. In Ext.P62 inquest report in Column Nos.(vii) and viii(a), PW40 noted the fatal injury on the head of the deceased. Column No.(xi) in Ext.P62 is pertaining to the apparent cause of death. In Ext.P62, PW40 noted that the deceased died as a result of head injury. 19. PW41 is the investigating officer, who conducted the major part of the investigation. As directed by PW41, PW40 went to the Nedumbassery International Air Port and arrested A5 by Ext.P32 arrest memo. At the time of arrest, he seized Exts.P31 passport, P33 boarding pass and P34 air ticket of A5. MO9 mobile phone was also seized from the possession of A5. PW41 received information touching the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-24-: involvement of A2 to A8 and A4 in the crime. They were arrested on 16.11.2011. He issued lookout notice against A2,A3 and A6. Subsequently, A6 surrendered before the court. PW41 filed application for getting police custody of A6. Ext.P65 is the report filed by him incorporating Section 353 of IPC. He produced MOs.15 to 17 before court. During investigation, it was disclosed that the mobile phone number of Shaheed Bava was 9745797004. Hence, he took necessary steps for getting the call data records of his phone. He arrested A2,A3,A9 and A10 on 20.11.2011 by Exts.P67 to P70. They were produced before court and were remanded to judicial custody. Ext.P77 is the report filed by him including the names of A9 and A10. Ext.P76 is the report filed by him narrating the name and address of A2. On 22.11.2011, A11 and A12 were arrested by him and later they were produced before the court. He filed application to get the custody of A2,A3,A8,A9,A10,A11 and A12 before court. The court allowed the application granting police custody. On being questioned, A6 disclosed that he had kept the rope in the place of occurrence and he would show the same if he was taken there. Based on the information, he proceeded to the building bearing Door No.1/303 of Kodiyathur Panchayath as Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-25-: led by the accused and recovered MO3 plastic rope. He seized MO3 in the presence of witnesses as per Ext.P11 mahazar in the presence of PW10 the Village Officer of Kodiyathur Village. He was an attester to Ext.P11 mahazar. PW10 also prepared Ext.P12 and P13 site plans. 20. On being further questioned, A6 confessed that he had kept the mobile phone on a table in his bed room and he would show the same if he was taken there. Based on the above information, PW41 proceeded to the house bearing door No.1/62 of Kodiyathur Panchayath and recovered MO18 mobile phone by Ext.P14 mahazar. 21. On 26.11.2011, PW41 obtained the custody of A2,A3,A8 to A12. On being questioned, A8 also confessed that he had kept the mobile phone on a table placed in his bedroom and he would show the same if he was taken there. Based on Ext.P84 confession given by A8, PW41 proceeded to the house bearing Door No.1/48-C and recovered MO19 mobile phone by Ext.P19 mahazar. Further, A12 confessed that the mobile phone was kept in his bedroom and if he was taken there, he would show the same. As led by A12, PW41 went to building bearing Door No.1/57 of Kodiyathur Panchayath and seized MO6 mobile phone as identified by Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-26-: A12. Ext.P16 is the mahazar prepared and MO20 is the SIM card produced by him. 22. As part of the investigation, PW41 questioned A11. On being questioned, A11 confessed that the phone was kept inside the almirah of his house and he would show the same if he was taken there. Based on Ext.P86 confession, PW41 proceeded to the house of the accused as led by him and recovered MO21 mobile phone bearing IMEI 359547018228616 along with MO22 and MO23 SIM cards as per Ext.P18 mahazar. Similarly, 8[th] accused confessed that the wooden stick was kept safely very near to the occurrence place and he would show the same, if he was taken there. Based on Ex.P82 confession, PW41 proceeded to the place as led by the accused and recovered MO7 wooden stick as per Ext.P27 mahazar. A3 confessed that the mobile phone was kept at his residence and he would show the same if he was taken there. Based on Ext.P87 confession as stated above, PW1 proceeded to the place as led by the accused and recovered MO24 mobile phone as per Ext.P25. While so, he received reliable information that A7 and A13 were present near to the place namely Kattamkal. Accordingly PW41 proceeded to the place as led by one Ahammed, who was very Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-27-: familiar with the place and arrested A7 and A13 as per Ext.P22 arrest and inspection memo of A7 and Ext.P23 arrest and inspection memo of A13. At the time of arrest, PW41 seized MO11 mobile phone bearing No.9895819212 from A7 as per Ext.P21 mahazar. A10 confessed that the mobile phone and sim card were kept in his residence and he would show the same if he was taken there. Accordingly, PW41 proceeded to the place as led by the accused and recovered MO25 mobile phone bearing No.9946637931 by Ext.P24 mahazar. A2 confessed that the mobile phone and SIM card were kept at his residence and he would show the same if he was taken there. Based on Ext.P89 confession, PW41 proceeded to the place and recovered MO27 mobile phone bearing No. 8606361791 by Ext.P26 mahazar. A9 confessed that the iron rod was kept safely very near to his house and he would show the same if he was taken there. Based on Ext.P97 confession statement, PW41 proceeded to the place as led by the accused and recovered MO1 iron rod by Ext.P28 mahazar. A9 further confessed that mobile phone was kept at his residence and he would show the same if he was taken there. Based on Ext.P90 confession, PW41 recovered MO8 mobile phone by Ext.P29 mahazar. Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-28-: 23. On 30.11.2011, PW41 received information that A5 would be present at the air port. Accordingly, he instructed PW40 to do the needful. PW40 arrested A5 and handed over to PW1 along with the seized articles. While so, one Sharaf Ali produced a mobile phone allegedly owned by Shaheed Bava with IMEI No. 354315049215902. The above MO5 mobile phone was seized by Ext.P93 mahazar and produced before court for forensic examination. After examination, Ext.P95 report was submitted by the expert before the court below. On being questioned, A5 confessed that the SIM card was kept in a house at Anakkampoili and he would show the same if he was taken there. Based on Ext.P96 confession statement, PW41 proceeded to the place and recovered MO14 sim card by Ext.P35 mahazar. In the statement made by the 5th accused he confessed that the stick was kept in a nearby property and he would show the same if he was taken there. Based on Ext.P97 confession statement, PW41 proceeded to the place and recovered MO2 stick by Ext.P37 mahazar. PW41 questioned the witnesses, recorded their statement and sent the relevant exhibits and material objects for forensic examination as part of investigation. Call data records from the relevant service providers were Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-29-: obtained and produced before the court below. 24. Learned Senior Counsel appearing for the appellants 1 to 7 and 9 in Crl.A.No.1156/2014 Sri.P.Vijaya Bhanu contends that PW1, who is the close relative of deceased Shaheed Bava, has no acquaintance with the accused. The learned Senior Counsel submits that PW41 the investigating officer, after the arrest of the accused, instead of taking steps to conduct test identification parade, he himself had shown the accused to PW1. It is pointed out that the accused was also shown to PW4, the Assistant Sub Inspector after their arrest. It is further submitted that about 200 persons gathered at the time of incident and as such, non-examination of at least one independent witness is fatal to the prosecution case. According to the learned Senior counsel, if proper and timely treatment was given to Shaheed Bava, there would not have been any chance of causing death of Shaheed Bava. Stated differently, the external injuries sustained by the deceased were not sufficient to cause his death and as such, it could be presumed that the assailants had no intention to cause any fatal injuries to the deceased. It is pointed out that there is no reliable evidence to prove the criminal conspiracy. According to the learned Senior Counsel, to bring home the charge of criminal conspiracy, it is necessary to establish that Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-30-: there was an agreement between the accused for doing an uneventful act for which absolutely no evidence was adduced by the prosecution. 25. Coming to the investigation conducted by PWs.40 and 42, the learned Senior Counsel submits that PW42 the Sub Inspector conducted investigation in this case and the same was followed by PW40 the Circle Inspector. Both PWs.40 and 42 did not question PW2, PW26 and PW4 who were the material witnesses in this case. It is submitted that PWs.2 and 46 were questioned by PW41 after a delay of six days and PW4 was questioned by PW41 only after the arrest of the accused. To support the contentions, learned Senior Counsel points out Ext.P2 scene mahazar prepared by PW42. As per Ext.P2 scene mahazar, the scene of occurrence is in front of the Village Office and not in front of the house of PW1 and PW3. Thus, it is argued that another scene mahazar was prepared by PW41 after a long delay on 30.12.2011 and shifted the place of occurrence from the front of village office to the front of PW2's house with an intention to place PW2 and PW26 to witness the incident. 26. Coming to the recovery of MOs.1 to 3, the learned Senior Counsel points out that the factum of recovery Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-31-: through independent witnesses has not been proved. It is further submitted that Ext.P41 to 47 and P52 and 54 call data records are not admissible in evidence. 27. Learned Senior Counsel Sri.B.Raman Pillai appearing for and on behalf of 8th appellant in Crl.A.No.1156/2014 submits that there is no evidence to show that the accused formed themselves into an unlawful assembly armed with deadly weapons for committing murder as alleged by the prosecution. The learned Senior Counsel submits that there is no reliable evidence to connect 8th appellant with the crime. 28. Per contra, the learned Senior Public Prosecutor Sri.Alex.M.Thompra submits that this is a case wherein a group of individuals tried to enforce certain laws according to their will. According to the learned Public Prosecutor, the victim was subjected to inhuman treatment and was tortured to the maximum as evidenced by Ext.P60 postmortem report. Ext.P59 wound certificate and Ext.P60 postmortem report would go to show that there were more than 50 injuries on the body of the deceased. The learned Public Prosecutor submitted that the murder was committed with an intention to create fear psychosis in the public at large and was committed in a public place in the presence of large number of persons under the guise of moral policing. The evidence on record Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-32-: would show that even the police personnel were threatened by the accused and the Police was constrained to get more police force to take the victim to the nearest hospital. The learned Public Prosecutor further submits that the evidence on record was sufficient to prove the guilt against the accused beyond reasonable doubt and no interference is warranted. 29. Sri.S.Rajeev, the learned counsel appearing for the appellant in Crl.A(V).No.521/2015 has supported the contention of the learned Public Prosecutor in full. According to the learned counsel, the order of acquittal passed against A2,A7, A12,A13 and A14 is per se incorrect. It is pointed out that in spite of specific evidence available against the accused, the court below has acquitted them without considering valuable evidence against them. Further, the court below has also gone seriously wrong in not awarding the sentence of death to the convicted accused since the facts of the case and evidence available on record would clearly go to show that the case at hand would come within the doctrine of rarest of rare case. It is submitted that the crime was committed so brutally and it shocked the conscience of the society. 30. PW2 Remla and PW26 Baby Jilna are the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-33-: material witnesses in this case. It is clear from the evidence of PW2 and 26 that they are residing very near to Kodiyathur Village and the deceased Shaheed Bava was employed in the Gulf for some time and after his return from the Gulf, he used to visit the house of PW2 frequently which annoyed the local people, which according to them, is immoral. It is further brought out in evidence that on 22.10.2011 at night, while the deceased Shaheed Bava was returning from the house of PW2 in his car, some persons hailing from the locality had attempted to obstruct his car and that thereupon, deceased Shaheed Bava tried to hit them with his car. Pursuant to this incident, some of the accused chased the deceased Shaheed Bava to his house and from there, the relatives of deceased Shaheed Bava threatened them with dire consequences. The alleged incident on 22.10.2011 created enmity between deceased Shaheed Bava and the local people including the accused. The incident, happened on 22.10.2011 was known to PW2 and PW26 as well. While so, on 9.11.2011 night, Shaheed Bava came to the house of PW2 along with A4. PWs.2 and 26 identified A4 before court and reiterated that A4 was present along with A1 when the deceased Shaheed Bava came to the residence of PW2 on 9.11.2011. They Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-34-: testified that the deceased Shaheed Bava came to their residence in the autorickshaw owned by A4. The call data records would show that at about 11.30 pm, the deceased Shaheed Bava made a call to A4 while he was returning from the house of PW2. When he reached the house of PW3 Muhammed Basheer, according to Pws.2 and 26, all the accused formed themselved into an unlawful assembly and committed rioting with deadly weapons and they attacked deceased Shaheed Bava with MO1 iron rod and MO2 wooden rafter and dragged him towards an electric post situated near the road side and tied him with MO3 plastic rope to that electric post. PWs.2 and 26 deposed before court in clear terms that all the accused were present at the scene of occurrence and they had witnessed the occurrence. 31. Indisputably, somebody informed the Police over phone regarding the occurrence. Initially, PW4 who was the Assistant Sub Inspector of Police, Mukkam rushed to the scene of occurrence to save the deceased Shaheed Bava. But A1 and A6 obstructed the Police stating that only the deadbody of the victim would be allowed to be taken. Hence, PW4 was constrained to contact the Sub Inspector of Police who came in a Police jeep and took the deceased Shaheed Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-35-: Bava to the K.M.C. Hospital at Mukkom. Since the deceased Shaheed Bava sustained serious injuries, he was referred to the Baby memorial Hospital where PW33 conducted surgery on 10.11.2011 on the body of the victim Shaheed Bava. Ext.P49 case sheet would show that C.T.scan of the deceased was taken which would show a left frontotemporoparietal acute subdural hemorrhage with mass effect and midline shift and evidence of transtentorial herniation. Ext.P49 would further show that the victim was subjected to an emergency left frontotemporoparietal decompression craniectomy and evacuation of acute subdural hemorrhage followed by duroplasty. Since his condition was critical, he was ventilated postoperatively. However, he did not improve and finally expired at 3 pm on 13.11.2011 despite intensive measures. According to PW33, the cause of death is severe craniocerebral injury. This opinion of PW33 and Ext.P60 postmortem certificate would clearly show that the deceased died out of severe craniocerebral injury, about 4 days after the incident of attack which took place on 9.11.2011. 32. The evidence on record would indicate that timely medical assistance had been given to the deceased immediately after the occurrence and hence, we are of the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-36-: view that the death was not due to medical negligence as contended by the learned Senior Counsel appearing for the appellants. 33. In order to prove the allegation of conspiracy between the accused, the prosecution examined PW27 the Nodal officer of Vodafone Cellular Ltd. PW27 produced Ext.P41 call data records. PW29 yet another Nodal Officer of Idea Cellular Ltd. produced Exts.P50,51 and 52 call data records. PW30 Nodal Officer of Bharathi Airtel Kerala Circle produced Ext.P54 call data records. As stated supra, PW41 the Investigating Officer has seized the mobile phone with the SIM cards from the accused as confessed by them and some mobile phones were seized from their possession at the time of arrest. The court below has considered the call data records in detail and entered into a finding that there was an agreement between A4,A5,A6,A8, A9,A10 and A11 in between 9.30 p.m on 9.11.2011. It is also brought out in evidence that PW41 recovered the mobile handsets from the accused in accordance with section 27 of the Evidence Act. 34. In the case on hand, the call data records exhibited by the prosecution were duly certified in accordance with the provisions of the the Indian Evidence Act,1872 (for short 'the Evidence Act'). Further, the Nodal Officers of the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-37-: respective service providers were examined and the requirements under Section 65B of the Evidence Act were satisfied. The evidence of the phone call made to deceased Shaheed Bava before his death and the calls made by A4 to the other accused immediately after the arrival of deceased Shaheed Bava at the residence of PW2 on the date of occurrence and corresponding calls made by all other accused to implement the moral code of conduct are proved in evidence. On 9.11.2011 at 9.30 p.m., deceased Shaheed Bava was accompanied by A4 and came to the residence of PW2. It goes without saying that A4 was the first person to know about the entry of Shaheed Bava in the house of PW2. The call details of phone No.9745797004, which was used by Shaheed Bava would reveal that on 9.11.2011 at 21:24:43 hrs. Shaheed Bava contacted A4 and after sometime, he contacted A4 at 21:40:21 hrs. Exts.P41,P42,P54, P45,P52 and P46 would prove that after getting information from A4 regarding the presence of Shaheed Bava inside the house of PW2, some of the accused i.e., A4,A5,A6,A8,A9,A10 and A11 were in frequent contact. In view of the evidence let in by PW2 and PW26 that those persons were present in the scene of occurrence, the only inference which could be drawn is that Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-38-: the accused shared common object and collectively attacked the victim. 35. The concept of unlawful assembly as can be seen from Section 141 of IPC has two elements. Firstly, the assembly should consist of at least five persons and secondly, they should have a common object to commit an offence or achieve any one of the objects enumerated therein. This is distinct from criminal conspiracy as defined under Section 120B of IPC. For arriving at a conclusion that a person is guilty of the offences under Section 143,147,148 or vicariously liable under Section 149 for some other offence, it must be proved that such person is a member of an unlawful assembly consisting of not less than five persons irrespective of the fact whether the identity of each one of the five persons is proved or not. If that fact is proved, the next step of enquiry is whether the common object of unlawful assembly is one of the five objects specified under Section 141 of the IPC. 36. Punishment of Criminal conspiracy under Section 120B and vicarious liability under Section 149 are distinct and separate. For imposing liability on the members of the unalwful assembly under Section 149 of IPC, it is not necessary that every member of the unlawful assembly should Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-39-: commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. In the case on hand, the allegation of the prosecution is that all the accused formed themselves into an unlawful assembly and in prosecution of their common object, waited for the arrival of Shaheed Bava from the house of PW2 to assault him on account of self-styled moral code of conduct prescribed by them. 37. To prove unlawful assembly, prosecution mainly relied on the oral evidence of PW1. According to PW1, on 9.11.2011 after 11.30 p.m he received a telephonic message from his brother Kareem that his brother Shaheed Bava was lying in an injured condition near Kodiyathur Village Office and sought his help to remove him to the hospital. Evidence on record would show that he came to the place of occurrence in a motor cycle driven by his brother's son along with Kareem. On his arrival, he could find 15 persons assembled there and the deceased Shaheed Bava was found lying near an electric post situated in front of the house of PW3. He identified some of the accused persons who prevented PW4the A.S.I attached to Mukkom Police Station from removing Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-40-: Shaheed Bava to the hospital. 38. The prosecution examined PW3 to prove unlawful assembly in continuation of evidence let in by PW1. It is true that he turned hostile to the prosecution. However, he maintained that there was an unlawful assembly in front of his house and the members of the unlawful assembly assaulted a person in front of his house. 39. In support of the oral evidence let in by PWs.1 and 3, PW4 Asst.Sub Inspector of Police, Mukkom Police Station adduced evidence to show that pursuant to the information received that a person was found lying near the Village Office at Kodiyathur, he immediately proceeded to the place where he could find Shaheed Bava lying in an unconscious state surrounded by 15 persons. Although an attempt was made to take him to the hospital, he was prevented from doing so. 40. PW25 was examined to prove that there was an unlawful assembly in front of the house of PW3 on the date of occurrence. According to PW25, after 11.30 p.m. on that day he received a mobile phone call from PW2 stating that some persons had assaulted Shaheed Bava and sought his help. Pursuant to the information, he immediately made a call to Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-41-: Shaheed Bava's mobile number 9745797004. The telephone call was attended by somebody and he could hear the loud cry of Shaheed Bava and utterances made by the unlawful assembly. 41. PW2 and PW26 adduced evidence to show that there was an unlawful assembly on the date of occurrence as alleged by the prosecution. 42. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plan for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. To prove the charge of conspiracy, it is not necessary that the intended crime was committed or not. It is also not necessary that all conspirators should agree to the common purpose at the same time. What part each conspirator is to play may not be known to every one or the fact as to when a conspirator joined the conspiracy and when he left. Going by the evidence in this case, it is clearly brought out that A4, who took deceased Bava in his autorickshaw to the residence of PW2 contacted the other accused through mobile phone. No evidence was adduced by Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-42-: the prosecution to show that he was physically present at the scene of occurrence. PW2 and PW26 had not stated that A4 was present at the scene of occurrence. However, call data records would eloquently show that he had contacted the other accused. 43. From the evidence on record, it was not brought out that A4 conspired with the other accused to do an illegal act. Exts.P41,42,54,45,52 and 46 would prove that after getting information from A4 regarding the presence of Shaheed Bava at the residence of PW2,A4,A5,A6,A9 and A10 were in frequent contact. Based on call data records and other relevant circumstances, the trial court has come to a conclusion that A4,A5,A6,A9,A10 and A11 conspired together in between 9.30 p.m and 11.30 p.m. on 9.11.2011. So far as an offence relating to conspiracy is concerned, it is difficult to adduce direct evidence. Conspiracy is hatched in secrecy. In order to prove the allegation of conspiracy between the accused, the prosecution is relying on the evidence adduced by PW27, who produced Exts.P41 to P47 and also PW29, who produced Exts.P50 and P52 call data records. PW30 produced Ext.P54 call data records. It is not possible for this Court to arrive at a conclusion that A4 and other accused agreed to do Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-43-: or caused to be done an illegal act or legal act by illegal means on the strength of call data records. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. Not only the intention but there has to be an agreement to carry out the object of intention which is an offence. On going through the materials on record, there is nothing in evidence to show that A4 had conspired with the other accused to commit murder. There is no evidence to show that A4 was physically present at the scene of occurrence. Hence, it could not be assumed that A4 intended to murder the deceased. Hence A4 cannot be convicted for the offences under Sections 302 and 120B of IPC. So much so, the separate conviction and sentence imposed against A4,A5,A6,A8,A9,A10 and A11 for the offence under Section 302 read with 120B of IPC are also liable to be set aside. We do so. 44. On the other hand, the common object of the assembly could be easily decipherable from the circumstances of the case such as the time and place of gathering of the assembly immediately after the return of Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-44-: Shaheed Bava from the residence of PW2 as informed by A4 to the other accused are indicative of the common object of the gathering. It is practically not possible to assess the common object of assembly on the basis of the overt acts committed by such individual members of the assembly. Identical point was considered by the Supreme Court in **Vinubhai Ranchhodbhai Patel** v. **Rajivbhai Dudabhai Patel and others** [AIR 2018 SC 2472]. Para 30 of the judgment reads as follows:- “30. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal.” 45. The court below has convicted and sentenced A1,A3,A5,A6,A8,A9,A10 under Section 143,147,148,353 and 302 read with 149 of IPC. Further, A4,A5,A6,A8,A9,A10,A11 were convicted and sentenced Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-45-: under Section 302 r/w 120B of IPC. Going by the evidence adduced in this case and also in view of the discussion made hereinabove, we are of the view that the offence under Section 120B is not prima facie attracted against the 4th accused. Nevertheless, there is evidence to show that the other accused formed themselves into an unlawful assembly for the purpose of rioting and in prosecution of their common object, assaulted deceased Shaheed Bava. If force or violence is used by an unlawful assembly or any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty under Section 146 of the IPC. However, Section 148 provides that a person must be a member of unlawful assembly and the person charged with an offence under Section 148 must also be armed with a deadly weapon. 46. In the case on hand, admittedly, all the accused persons were not armed with deadly weapons. There is a distinction between offence under Section 146 and 148 of the IPC. The offence under Section 146 is punishable under Section 147 of IPC. To constitute the offence of rioting as Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-46-: defined under Section 146, the members of the unlawful assembly need not carry weapons, whereas when a person is charged with an offence under Section 148, he must also be armed with a deadly weapon. Viewed in the above background, we are of the view that the offence under Section 148 of IPC is not attracted in this case. 47. In **Suresh** v. **State of Kerala** [2006(1) KLT 78], a Division Bench of this Court held that the conviction of all the accused for the offence punishable under Section 148 of the I.P.C. without a finding that those who were so convicted were armed with deadly weapons is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of IPC with the aid of Section 149 of IPC for the mere reason that they were members of an unlawful assembly. Hence, the conviction and sentence under Section 148 of IPC are liable to be set aside. 48. Learned Senior Counsel for the appellants submitted that test identification parade was not conducted as soon as after the arrest of the accused. It is argued that this is necessary to eliminate the possibility of the accused being shown to the witness prior to the test identification parade. It is true that no test identification parade was conducted in this Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-47-: case. However, PW2 and PW26 clearly identified the accused before the court and relying on their oral evidence, the court below convicted and sentenced the accused. 49. It is trite law that the substantive evidence is the evidence of identification made in court. It is brought out from the evidence of PWs.2 and 26 that the accused are also hailing from the very same locality and the parties are known to each other prior to the date of occurrence. A4 was an autorickshaw driver and he took the victim in his autorickshaw to the residence of PW2 on the date of occurrence. As a general rule, the substantive evidence of a witness is the statement made in court. The purpose of prior test identification is to test and strengthen the trustworthiness of the evidence given before the court. It is accordingly considered as a rule of prudence to generally look for corroboration to establish the identity of the accused. There is no case for the accused that the accused are strangers to PW2 and PW26. The circumstances in this case would indicate that all the accused formed themselves into an unlawful assembly and assembled in front of the house of PW3 to assault deceased Shaheed Bava. Considering the nature of evidence in this case, we are of the view that the evidence Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-48-: adduced in this case is reliable and the court below was fully justified in accepting the evidence of identification even without insisting on corroboration. Considering the other evidence including the oral evidence of PW2, we are of the view that the absence of test identification parade in this case is not fatal to the prosecution. PWs.2 and 26 had no animosity towards the accused to implicate them in a murder case. The local people who are well known by sight even before the commission of offence need not be put before an identification parade in order to identify them. 50. The fact that PW4 was obstructed by the accused though he made an attempt to provide immediate medical care to the deceased Shaheed Bava, is clear from the evidence on record. Offence under Section 353 of IPC is clearly brought out in evidence. 51. Learned Senior Counsel for the appellants contended that Ext.P59 wound certificate preferred by PW34, who was the Consultant Medical Officer, does not show 51 injuries as noted by PW35 in Ext.P60 Postmortem certificate. Thus, it is argued that all the accused are not liable for committing murder as alleged by the prosecution. It is also submitted that corresponding injuries are not noted in Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-49-: Ext.P59 wound certificate. In other words, evidence tendered by PWs.2 and 26 do not tally with Ext.P59 wound certificate. 52. On going through the oral evidence of PW2, specific overt acts are alleged against the accused. Firstly, A10 came all of a sudden with a wooden reaper and hit on the head of the accused. While so, A6 caught hold of deceased Shaheed Bava. A5 hit on the head of the deceased with a wooden reaper. A6 came forward and stabbed on the abdomen of the deceased. A9 caught hold of the shirt of the deceased and hit the head of the deceased against the wall. Consequently Shaheed Bava fell down. A1 and A8 fisted on his chest. A11 and A3 tied his hand and legs and dragged him towards an electric post and tied on it. Evidence tendered by PW2 is supported by the oral evidence of PW26 as well. It is true that no corresponding injury is noted on the chest of the accused alleged to have been inflicted by A1 and A8. It is further brought out in evidence that a plastic rope was brought in and tied the hands and legs of Shaheed Bava before being tied to an electric post. This was allegedly done by A3,A6 and A11. A1, A3 and A8 also assaulted Shaheed Bava. This is a case where more than 5 people gathered together and attacked Shaheed Bava with deadly weapons Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-50-: and otherwise eventually resulting in the death of the victim. 53. On going through the postmortem report and Ext.P59 wound certificate, there is nothing on record to indicate that A1 and A8 fisted the deceased on his chest. So far as the other accused are concerned, the prosecution has succeeded in proving that they assaulted the deceased and the deceased sustained grievous injuries corresponding to the overt acts alleged to have done by them. It is true that all the members of the unlawful assembly are vicariously liable for the overt acts in the very same transaction. In this case, some of the accused were acquitted by the court below for want of reliable evidence. Under the circumstances, unless some positive evidence is there to connect A1 and A8 with the crime, it is not safe to convict the accused for the offences alleged against them. 54. We have been taken through the entire documents oral and documentary evidence adduced by the prosecution at length.It is clear from the evidence that A3, A5, A6,A9,A10 and A11 inflicted several injuries on the deceased. They went to the extent of tying his hands and legs with a rope before being tied to an electric post. They prevented the Police Officials from giving necessary medical aid to the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-51-: injured. Nearly one hour had been wasted on account of the conduct of the accused. On arrival of sufficient police force, medical aid was given to the victim. It is brought out from the circumstances that the freedom of thought, action, expression and personal choice of deceased Bava was not being tolerated by the accused on account of self styled moral code of conduct. A man and woman living together without marriage, live-in-relationship or pre-marital sex cannot be construed as an offence in India. 55. In **Tehseen.S.Poonawalla** v. **Union of India** **and another** [(2018)9 SCC 501], the Supreme Court issued directions to the legislature to create a separate offence of lynching and provide adequate punishment for the wrong doers. The Supreme Court suggested a special law in this case so as to instill a sense of fear for law among the people who involve themselves in such kinds of activities. 56. From the evidence recorded by the trial court, it is clear that the deceased tried to escape from the clutches of untruly elements by running away as soon as he apprehended danger. However, according to PWs.2 and 26, the accused followed him, caught hold of him, pulled him on the ground, inflicted several injuries on his body and tied his Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-52-: legs and hands before being tied to an electric post. He was assaulted brutally. PWs.2 and 26 saw the accused inflicting injuries on the deceased. They uttered that they would not spare the deceased on account of prior enmity between them. The nature of injuries inflicted by the accused were such that they had an intention to do away with him totally. It is also brought out in evidence that there were sufficient electric light at the scene of occurrence and they had seen clearly the accused inflicting several injuries on the deceased. Though the deceased cried aloud to save him, the accused did not show any mercy to him. The arrival of Police party did not change their mind. The Doctor who conducted postmortem examination on the body of the deceased noted as many as 51 injuries all over his body. On going through the evidence of PWs.2 and 26 and other facts and circumstances including the postmortem report, we are of the view that the prosecution had proved beyond doubt that the injuries sustained to the deceased were sufficient to cause death in the ordinary course of nature. 57. The case was tried by the trial judge, who held that the appellants were guilty of murder. Evidence tendered by PWs.2 and 26 would indicate that A3,A5,A6,A9,A10 and Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-53-: A11 were present at the scene of occurrence and caused injuries on the victim. The injuries inflicted all over the body of the deceased as held by the trial court were caused while attacking the deceased forcibly is a strong circumstance against the accused. 58. The deceased was taken to the hospital by the police from the scene of occurrence. Even the act of the Police was obstructed by the accused. Had the appellants been innocent as contended by them, they would have certainly taken the deceased to the hospital. The conduct of the accused in not taking the deceased to the hospital is a strong circumstance against them. 59. The learned Senior Counsel for the appellants in Mr.P.Vijaya Bhanu contended that the bodily injuries found on the deceased were not intentionally inflicted by the accused and the injuries were not sufficient to cause death in the ordinary course of nature. According to the learned Senior Counsel, sexual jealousy was the cause of the incident and the accused did not intend to do away with the deceased. In view of the contention, the principal question arising for consideration in this appeal is as to whether the facts and circumstances established by the prosecution against the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-54-: appellant is murder or culpable homicide not amounting to murder. 60. According to the rule laid down in **Virsa Singh** v. **State of Punjab** [AIR 1958 SC 465] even if the intention of the accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be of murder. To consider as to whether the act was done with the intention of causing death, all the acts and utterance and circumstances will have to be counted together. In the case on hand, it is proved that the bodily injuries were present on the deceased. The injuries were inflicted by the accused. It was further proved that there was an intention to inflict the bodily injuries on the deceased on account of self styled moral code of conduct. It was a case of lynching. It would not be termed that the injuries were inflicted accidentally or unintentionally. The contention that the accused did not intend to do away with the deceased is also baseless. No one has licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they intend some other kind of injury. If they inflict injuries of that kind, the law mandates that they Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-55-: must face the consequences. There is no evidence in this case to show that the injury was accidental or otherwise unintentional. From the facts and circumstances of the case, it is eloquent that the accused imposed punishment on the deceased for maintaining relationship with a woman. In the present case, the injury sustained to the deceased was sufficient to cause death in the ordinary course of nature. The motive is also proved. 61. In this case, the injuries were caused in a brutal manner. There is no scope for discussing the case from the point of view of having committed the offence due to the lack of knowledge on the part of the accused or its consequences. For all the foregoing reasons, we are of the opinion that there are no valid grounds to alter the conviction of the accused from one under Section 302 to that under Section 304 Part II of IPC. In our opinion, the judgment and order of conviction for the offence punishable under Section 302 read with Section 149 of IPC passed by the trial court except as against A1,A4 and A8 were based upon proper appreciation of evidence and circumstances. 62. In Crl.A(V).No.521/2015, the appellant seeks to set aside the order of acquittal passed against accused Nos.2,7,12,13 and 14 and also for enhancement of sentence Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-56-: awarded to the accused. The appellate court can reverse the order of acquittal if some impediments exist in the judgment, improper appreciation of evidence by the trial court on other flaws such as perversity occurred in the judgment. So far as the accused who were acquitted by the trial court are concerned, there is no direct evidence to connect the accused with the crime. Evidence tendered by PWs.2 and 26 is self explanatory in this regard. We do not find any manifest illegality which vitiates the approach of the trial court. The finding of the trial court is based on logical reasons. It cannot be termed as perverse or arbitrary. It is settled principle of law that the appellate court should not disturb the finding of acquittal if two reasonable conclusions or views are possible from the record of the case. In the case at hand, the only reasonable conclusion which could be arrived is that there is no evidence to connect the accused, who were acquitted by the court below. On reappreciation of the entire evidence, we are of the view that the appeal against acquittal is without any merit. 63. Coming to enhancement of sentence, we are of the view that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Life imprisonment is the rule and death sentence is an exception. Death sentence can be imposed only when life imprisonment Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-57-: appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. The trial court has exercised discretion in awarding life imprisonment after taking into consideration the facts and circumstances of the case. Hence, enhancement of sentence is not warranted in this case. 64. In view of the discussion made hereinabove, Crl.A.No.1156/2014 is allowed in part as hereunder. 1. The conviction and sentence imposed against A1,A4 and A8 are set aside and they are acquitted for all the offences. They are to be released from prison, if they are not required in connection with any other case. 2. The conviction and sentence imposed against A3,A5,A6,A9, A10 and A11 under Section 148 IPC stand set aside and they are acquitted for the said offence. 3. The conviction and sentence imposed by the trial court against A4,A5,A6,A8,A9,A10 and A11 for the offence under Section 302 read with 120B of IPC are set aside while confirming the conviction and sentence imposed by the trial court for the offences under Sections 143,147,353, 302 read with Section 149 of IPC against A3,A5,A6,A9,A10 and A11 as indicated in the impugned judgment. A3,A5,A6,A9,A10 and A11 shall undergo the Crl.A.No.1156/2014 & Crl.A(V) No.521/2015 :-58-: remaining period of sentence in terms of this judgment. CrlA(V).No.521/2015 stands dismissed. **Sd/-** **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/