Full Judgment Text
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PETITIONER:
SUBRAN @ SUBRAMANIAN AND ORS.
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT24/02/1993
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
VENKATACHALLIAH, M.N.(CJ)
JEEVAN REDDY, B.P. (J)
CITATION:
1993 SCR (2) 84 1993 SCC (3) 32
JT 1993 (2) 194 1993 SCALE (1)685
ACT:
Indian Penal Code, 1860:
Sections 141, 149, 299, 300, 302 and 326-Unlawful assembly-
What is-Six accused charged with offences under section 302
read with section 149-Two acquitted-Effect of-Held other
four being less than five would not be members of unlawful
assembly-Where Existence of unlawful assembly not proved
conviction with aid of section 149 cannot be recorded-
Accused cannot be convicted for offence with which not
charged-Accused liable for offences committed individually.
HEADNOTE:
Six accused persons were arrayed by the investigating agency
for offences punishable under Sections 302, 324, 323, 341,
148 read with Section 149 IPC, for an occurrence that took
place on 24th December, 1986 in which one Suku succumbed to
injuries as a result of the assault during the occurrence.
They were put on trial, and the prosecution sought to
establish its case by examining as many as six eye-witnesses
besides other evidence, documentary and oral.
According to the prosecution case, all the six accused
persons were armed with weapons like chopper, iron rod,
knife, cycle chain and torches and that the accused had held
PW.2 George and while the first accused kicked him, the
third accused inflicted injuries on him with a cycle chain.
So far as Suku deceased was concerned, all the accused
except the first accused caused him injuries with a torch, a
cycle chain and a knife. The first accused was alleged to
have caught hold of Suku by the collar and inflicted
injuries on his hands, arms and legs with a chopper. The
assault took place in front of an arrack shop. It was
alleged that enmity between the two groups on account of
suspicion of information being passed on to the Excise
Officials, regarding illicit distillation was the cause of
the occurrence, but no evidence was led in support of this
allegation and no motive for commission of the crime was
established at the trial.
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At the trial, four eye-witnesses PW3, P.W. 6, PW.7, the
salesman and his assistant in the arrack shop and PW.8
turned hostile and did not support the prosecution case.
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The prosecution case was sought to be proved by the ocular
testimony of PW.4 and PW.5 both aged about 13 years, at the
time of the occurrence and other evidence. Both these eye-
witnesses supported their statements recorded under section
161 Cr. P.C. during their testimony in Court. The trial
court on the basis of prosecution evidence found accused No.
1, Subran, guilty of an offence punishable under Section 302
IPC and sentenced him to suffer rigorous imprisonment for
life. Accused Nos. 2 to 6, namely, Rajan, Preman, Viswan,
Sura and Shajan, were found guilty of an offence under
Section 326/149 IPC and each one of them was sentenced to
undergo rigorous imprisonment for three years Besides,
accused 1 to 4 were convicted for an offence under Section
148 and sentenced to suffer rigorous imprisonment for one
year. All the accused were also convicted for offences
under Sections 14, 341, 323,324 read with Section 149 IPC
but no separate sentences were awarded on any of those
counts.
On appeal to the High Court, the conviction and sentence
awarded to accused 1 to 3 and 5 were confirmed, while
accused 4 and 6 were acquitted and the conviction and
sentence recorded against them by the Sessions Judge was set
aside. Ile participation of the 6th accused and the role
assigned to him by the prosecution was doubted by the Judges
of the High Court and he was given the benefit of doubt and
acquitted. Similarly, the High Court disbelieved the role
assigned to accused No. 4 and doubted his participation in
the commission of the crime.
]Me accused appealed to this Court by Special Leave. After
preliminary hearing it was ordered that the appeal be heard
on the limited question regarding the nature of the offence
and the quantum of the sentence only.
On the question : Whether after the acquittal of the two
accused, could the High Court Convict appellant No. 1 for
the substantive offence under Section 302 IPC an offence
with which he had not been charged, and appellants 2 to 4
for an offence under section 326/149 IPC,
Partially allowing the appeal, the Court,
HELD: 1. A combined reading of Section 141 and Section
149 IPC
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show that an assembly of less than five members is not an
unlawful assembly within the meaning of Section 141 and
cannot, therefore, form the basis for conviction for an
offence with the aid of Section 149 IPC. [92F]
2. The existence of an unlawful assembly is a necessary
postulate for invoking Section 149 IPC. Where the existence
of such an unlawful assembly is not proved, the conviction
with the aid of Sections 149 IPC cannot be recorded or
sustained. The failure of the prosecution to show that the
assembly was unlawful must necessarily result in the failure
of the charge under section 149 )PC. [92H,93A]
3. A person charged for an offence under Section 302 IPC
read with Section 149 cannot be convicted of the substantive
offence under Section 302 IPC without a specific charge
having been framed against him as envisaged by law.
Conviction for the substantive offence in such a case is
unjustified because an accused might be misled in his
defence by the absence of the charge for the substantive
offence under Section 302 IPC. [93D]
4. The conviction of appellants 2 to 4 for an offence
under Section 326/149 IPC cannot be sustained and the same
would be the position with regard to the conviction of all
the appellants for other offences with the aid of Section
149 IPC also. [93B]
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5. The High Court failed to draw the distinction between
an offence under clause (b) and (c) of Section 299 IPC and
the one failing under clause (3) of Section 300 IPC. [93G]
6, The effect of the acquittal of the two accused persons by
the High Court and without the High Court finding that some
other known or unknown persons were also involved in the
assault, would be that for all intent and purposes the two
acquitted accused persons were not members of the unlawful
assembly. Thus, only four accused could be said to have
been the members of the assembly but such an assembly which
comprises of less than five members is not an unlawful
assembly within the meaning of Section 141 IPC. [92G]
7. Appellant No. 1 Subran not having been charged for the
substantive offence of murder under Section 302 IPC, even
the trial court, which tried the six accused persons, was
not justified in recording a conviction against him for the
substantive offence of murder punishable under Sec-
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tion 302 IPC after framing a charge against him for the
offence under Section 302 read with Section 149 IPC only.
[93C]
8. Appellant No. 1, Subran, was never called upon to meet
a charge under Section 302 IPC simplicitor and, therefore,
in defending himself, he can not be said to have been called
upon to meet that charge and he could very well have
considered it unnecessary to concentrate on that part of the
prosecution case during the cross-examination of the
prosecution witnesses. Therefore, the conviction of the
appellant No. 1 for an offence under Section 302 was not
permissible. [93E]
9. The intention to cause murder of Suku deceased, could
not be attributed to appellant No. 1 and the medical
evidence also shows that the injuries attributed to him were
not sufficient in the ordinary course of nature to cause the
death of the deceased. The conviction of appellant No. 1
for the substantive offence under Section 302 IPC is
therefore unwarranted and cannot be sustained. That Suku
deceased died as a result of injuries inflicted on him by
all the four appellants is not a matter which is in doubt.
From the ocular evidence read with the medical evidence, it
stands established that the injuries on the deceased had
been caused by all the four appellants and that the death of
Suku had occurred due to the receipt of multiple injuries.
[93H, 94A-B]
10. On a consideration of the circumstances of the case,
the type of weapons with which the accused were armed and
the nature and seat of the injuries, it is not possible to
hold that all the four appellants had shared the common
intention of causing such bodily injuries on the deceased as
were likely to cause the death of Suku or were sufficient in
the ordinary course of nature to cause his death. The
appellants would, therefore be liable for the offence
committed individually by each one of them. [94D-E]
11. The case of appellant No. 1 therefore, falls within
Section 299 I PC punishable under Section 304 Part-1 [PC.
He is accordingly, convicted for the said offence and
sentenced to suffer rigorous imprisonment for a period of
seven years and to pay a fine of Rs. 2,000 and in default of
payment suffer further rigorous imprisonment for one year.
Fine if realised to be paid to the heirs of the deceased.
[94G-H]
12 (a) With regard to the three other appellants their
conviction for
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an offence under Section 326 with the aid of Section 149 is
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not sustainable in law, it is accordingly set aside and they
are convicted under Section 326/149 IPC. They would be
responsible for their individual acts. The injuries caused
by appellants 2 and 3 were with a torch, iron rod and a
cycle chain. None of the injuries caused by them according
to the post-mortem report were on any vital part of the
body, though some of the injuries caused by blunt weapons
were grievous in nature. Each of them are convicted for an
offence under Section 325 IPC and sentenced to suffer
rigorous imprisonment for two years each. [95B-C]
12 (b) Appellant No. 4 caused grievous injuries to the
deceased with a knife, the offence would therefore, fall
under Section 326 IPC. He is therefore convicted for the
said offence and sentenced to suffer rigorous imprisonment
for a period of three years and to pay a fine of Rs. 500/-
and in default of payment to suffer rigorous imprisonment
for a period of three months. The fine, if realised shall
be paid to the heirs of the deceased.
[95D]
12 (c) The conviction of all the appellants for the offence
under Section 324 as recorded by the High Court as also for
the other offences are maintained but without the aid of
Section 149 IPC. [95E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 237 of
1993.
From the Judgment and Order dated 4.9.91 of the Kerala High
Court in Crl. A. No. 537 of 1988.
M.M. Kashyap, Sudhir Gopi, A.G. Prasad and Roy Abraham for
the Appellants.
M.T. George for the Respondent.
The Judgment of the Court was delivered by
DR. ANAND, J. On 9.3.1992, when this special leave
petition, directed against the judgment and order dated 4th
September, 1991, of the High Court of Kerala in Criminal
Appeal No. 537 of 1988, came up for preliminary hearing, the
following order was made:
"Issue notice limited to the question as to
the nature of offence and the quantum of
sentence.
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No orders on bail."
Heard learned counsel for the parties. Leave is granted
confined to the limited question on which notice was issued
as referred to above.
For an occurrence which took place on 24th, December 1986,
in which one Suku succumbed to the injuries as a result of
the assault during the occurrence, six accused persons were
arrayed by the investigating agency for offences punishable
under Sections 302, 324, 323, 341, 148 read with Section 149
IPC. They were put on trial and the prosecution sought to
establish its case by examining as many as six eye-witnesses
besides other evidence, documentary and oral. At the trial
however, four eye- witnesses, PW3 Devassykutty, PWs 6 and 7
salesman and his assistant in the arrack shop and PW8 Unni @
Velayudhan turned hostile and did not support the
prosecution case. The prosecution case was sought to be
proved by the ocular testimony of PW4 Biju and PW5 Anil,
both aged about 13 years at the time of occurrence and the
other evidence. Both the eye-witnesses supported their
statements recorded under Section 161 Cr. P.C. during their
testimony in court. The trial court on the basis of
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prosecution evidence found accused No. 1, Subran, guilty of
an offence punishable under Section 302 IPC and sentenced
him to suffer rigorous imprisonment for life. Accused Nos.
2 to 6, namely, Rajan, Preman, Viswan, Sura and Shajan were
found guilty of an offence under Section 326/149 IPC and
each one of them was sentenced to undergo rigorous
imprisonment for three years. Besides, accused 1 to 4 were
convicted for an offence under Section 148 and sentenced to
suffer rigorous imprisonment for one year. All the accused
were also convicted and sentenced to suffer rigorous
imprisonment for six months each under Section 147 IPC. All
the accused were also convicted for offences under Sections
143, 341, 323, 324 read with Section 149 IPC but no separate
sentences were awarded on any of those counts. On an appeal
before the High Court, the conviction and sentenced awarded
to accused 1 to 3 and 5 were confirmed while accused 4 and 6
were acquitted and the conviction and sentence recorded
against them by the learned Sessions Judge was set aside.
In view of the limited notice issued by this Court, we are
relieved of the necessity to reappreciate the prosecution
evidence in extenso and shall therefore confine ourselves to
the determination of the nature of the offence and the award
of appropriate sentence to the four appellants accepting, as
established the prosecution case against the four appellants
beyond a reasonable doubt.
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According to the prosecution case, all the six accused
persons were armed with weapons like chopper, iron rod,
knife, cycle chain and torches. It is the prosecution case
that the accused had held PW2 George and while the first
accused kicked him, the third accused inflicted injuries on
him with a cycle chain. So far as Suku deceased is
concerned, according to the prosecution, all the accused
except the first accused caused him injuries with a torch, a
cycle chain and a knife. The first accused is alleged to
have caught hold of Suku by the collar and inflicted
injuries on his hands arms and legs with a chopper. The
assault took place in front of an arrack shop. According to
the prosecution case there was enmity between the two groups
on account of illicit distillation and suspicion of
information being passed on to the Excise officials.
However, no evidence was led in support of this allegation
by the prosecution and no motive for commission of the crime
was established at the trial.
The postmortem on the deceased was conducted by Dr.
Sivasankara Pillai PW12. He had found as many as 38
injuries on the deceased. Most of the injuries found by
him, however, were abrasions or contusions on different
parts of the body though the deceased had also suffered stab
wounds on the right upper arm and left forearm and sharp
weapon injuries on his hands and legs. The bones of the
legs and arm had been fractured. According to the medical
witness, death of Suku deceased was caused due to multiple
injuries. According to the medical evidence, there was no
stab or incised wound inflicted on any of the vital parts of
the body i.e. neck, chest or abdomen. The Doctor has opined
that the deceased had died due to multiple injuries and that
the injuries could have been caused by beating him with
torches, knife, iron rod, cycle chain and the chopper.
According to him, the cumulative effect of all the injuries,
taken together, had resulted in the death of the deceased.
The doctor further stated that as a result of the chemical
analysis of the viscera, blood and urine, there was
indication that the deceased had consumed alcohol before he
had been assaulted, though he was unable to give the quality
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or quantity of liquor consumed by the deceased.
From an analysis of the record of injuries as detailed in
the post-mortem report, it transpires that there were 18
contusions of different dimensions but minor in their
gravity on the body of the deceased. Eight of the injuries
recorded, out of the 38 in the post mortem report., were
abrasions on different parts of the body. According to the
medical witness, nine out
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of those injuries could have been caused by a fall or the
deceased coming into contact with any rough surface or area.
Out of the remaining injuries, seven were chop wounds while
two were stab wounds, besides three were incised injuries.
it was the cumulative effect of the injuries which resulted
in the death of the deceased and according to the doctor,
the injuries when taken together were sufficient to cause
death in the ordinary course of nature. None of the
injuries by itself was found to be sufficient in the
ordinary course of nature to cause death of the deceased.
According to the medical opinion about the cause of death,
"deceased died due to multiple injuries".
From the above analysis of injuries, it cannot be said that
any one of the four appellants, who alone stand convicted by
the High Court had inflicted injuries intending to cause
death or such bodily injury as is sufficient in the ordinary
course of nature to cause death. As already noticed, six
accused persons had been charged by the investigating agency
for offences punishable under Sections 143, 147, 148, 341,
323, 324, 326 and 302 read with Section 149 IPC and put on
trial. The trial court convicted accused 2 to 6 under
Section 326 IPC with the aid of Section 149 IPC. It
convicted accused No. 1 for an offence under Section 302
IPC. While convicting accused 2 to 6 for the offence under
Section 326/149 IPC, the trial court came to the conclusion
that ’the accused did not share the common object to murder
Suku and that the common object was only to cause grievous
hurt’ to the deceased. Being of the opinion, that accused
No. 1 had caused injuries with a chopper and those injuries
"could" have resulted in the death of the deceased, he was
convicted for an offence under Section 302 IPC. The High
Court acquitted two of the accused and convicted the
remaining four only. The High Court found that clear
evidence of the eye-witnesses was only against accused Nos.
2, 3 and 5 besides appellant No. 1. The participation of the
6th accused and the role assigned to him by the prosecution
was doubted by the learned Judges of the High Court and he
was given the benefit of doubt and acquitted. Similarly,
the High Court disbelieved the role assigned to accused No.
4 and doubted his participation in the commission of the
crime. He was also’ given the benefit of doubt and
acquitted. While setting aside the conviction and sentence
of the said two accused, the High Court did not hold that
beside the four accused convicted by it, there were some
other known or unknown accused who had also been a party to
the commission of the crime. It is in this above background
that we have to consider the nature
92
of the offence committed by the four appellants.
Admittedly, none of the accused persons individually had
been charged for the substantive offence of murder under
Section 302 IPC. In the trial court all the six accused
were charge sheeted for an offence under Section 302 read
with Section 149 IPC. Other charges were also framed
against the accused but only with the aid of Section 149
IPC. After the acquittal of the two accused, could the High
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Court convict appellant No. 1 for the substantive offence
under Section 302 IPC (with which he had not been charged)
and the appellants 2 to 4 for an offence under Section
326/149 IPC ?
Section 141 IPC defines an unlawful assembly to be an
assembly of five or more persons, where the common object of
the persons comprising that assembly is to commit any of the
acts enumerated in the five clauses of that Section.
Section 149 IPC reads as under:
"Sec. 149. Every member of unlawful assembly
guilty of offence committed in prosecution of
common object If an offence is committed by
any member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be committed in
prosecution of that object, every person who,
at the time of the committing of that offence,
is a member of the same assembly, is guilty of
that offence."
A combined reading of Section 141 and Section 149 IPC
(supra) show that an assembly of less than five members is
not an unlawful assembly within the meaning of Section 141
and cannot, therefore, form the basis for conviction for an
offence with the aid of Section 149 IPC. The effect of the
acquittal of the two accused persons by the High Court and
without the High Court finding that some other known or
unknown persons were also involved in the assault, would be
that for all intent and purposes the two acquitted accused
persons were not members of the unlawful assembly. Thus,
only four accused could be said to have been the members of
the assembly but such an assembly which comprises of less
than five members is not an unlawful assembly within the
meaning of Section 141 IPC. The existence of an unlawful
assembly is a necessary postulate for invoking Section 149
IPC. Where the existence of such an unlawful assembly is
not
93
proved, the conviction with the aid of Section 149 IPC
cannot be recorded or sustained. The failure of the
prosecution to show that the assembly was unlawful must
necessarily result in the failure of the charge under
Section 149 IPC. Consequently, the conviction of appellants
2 to 4 for an offence under Section 326/149 IPC cannot be
sustained and the same would be the position with regard to
the conviction of all the appellants for other offences with
the aid of Section 149 IPC also.
Since, appellant No. 1 Subran had not been charged for the
substantive offence of murder under Section 302 IPC, even
the trial court, which tried the six accused persons, was
not justified in recording a conviction against him for the
substantive offence of murder punishable under Section 302
IPC after framing a charge against him for the offence under
Section 302 read with Section 149 IPC only. A person
charged for an offence under Section 302, IPC read with
Section 149 cannot be convicted of the substantive offence
under Section 302, IPC without a specific charge having been
framed against him as envisaged by law. Conviction for the
substantive: offence in such a case is unjustified because
an accused might be misled in his defence by the absence of
the charge for the substantive offence under Section 302
IPC. Appellant No. 1, Subran, was never called upon to meet
a charge under Section 302 IPC simplicitor and, therefore,
in defending himself, he can not be said to have been called
upon to meet that charge and he could very well have
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considered it unnecessary to concentrate on that part of the
prosecution case during the cross-examination of the
prosecution witnesses. Therefore, the conviction of the
first appellant for an offence under Section 302 was not
permissible. That apart, according to the medical evidence,
none of the injuries allegedly caused by this appellant was
either individually or taken collectively with the other
injuries caused by him, sufficient in the ordinary course of
nature to cause death of Suku. Medical evidence is clear on
this aspect of the case and it is not possible to say that
the injuries inflicted by the first appellant with the
chopper were inflicted with the intention to cause the death
of Suku. The High Court failed to draw the distinction
between an offence under clause (b) and (c) of Section 299
IPC and the one falling under clause (3) of’ Section 300
IPC. The intention to cause murder of Suku deceased, could
not be attributed to him and the medical evidence also shows
that the injuries attributed to him were not sufficient in
the ordinary course of nature to cause death of the
deceased. The conviction of appellant No. 1, Subran, for
the substantive offence under Section 302 IPC is therefore,
94
unwarranted and cannot be sustained. That Suku deceased
died as a result of injuries inflicted on him by all the
four appellants is not a matter which is in doubt. From the
ocular evidence read with the medical evidence, it stands
established that the injuries on the deceased had been
caused by all the four appellants and that the death of Suku
had occurred due to receipt of multiple injuries. What
offence can then be said to have been committed by the four
appellants ?
According to the medical evidence, the injuries caused were
cumulatively sufficient to cause death and the death had
occurred due to multiple injuries which were found
sufficient in the ordinary course of nature to cause death.
According to the ocular testimony of witnesses namely, Biju
(PW4) and Anil (PW5), who have been believed by both the
courts below and with which finding we have no reason to
differ, all the four appellants had caused those injuries.
It is, therefore, necessary in a case like this to determine
as to which of the accused is guilty of a particular
offence. On a consideration of the circumstances of the
case, the type of weapons with which they were armed and
nature and seat of the injuries, it is not possible to hold
that all the four appellants had shared the common intention
of causing such bodily injuries on the deceased as were
likely to cause the death of Suku or were sufficient in the
ordinary course of nature to cause his death. The
appellants would, therefore be liable for the offence com-
mitted individually by each one of them.
As already noticed, though it may not be possible to
attribute to appellant No. 1, Subran, the necessary
intention to cause death of Suku so as to hold him guilty of
an offence of murder under Section 302 IPC since the
injuries inflicted by him were not found to be sufficient in
the ordinary course of nature to cause death of Suku, but
looking to the weapon with which he was armed and the nature
number and seat of injuries inflicted by him though not on
any vital part, he can certainly be attributed with the
knowledge that with those injuries it was likely that death
of Suku may be caused and, therefore, he can be cloathed
with the liability of causing culpable homicide not
amounting to murder. The case of the first appellant,
therefore, falls within Section 299 IPC punishable under
Section 304 Part-1 IPC. We, accordingly, convict him for
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the said offence and sentence him to suffer rigorous
imprisonment for a period of seven years and to pay a fine
of Rs. 2000 (two thousand) and in default of payment of fine
suffer further rigorous imprisonment for one year. Fine if
realised shall be paid
95
to the heirs of the deceased.
Coming now to the case of the other three appellants.
Since, their conviction for an offence under Section 326
with the aid of Section 149 is not sustainable in law, we
set aside their conviction under Section 326/149 IPC. They
would be responsible for their individual acts. The
injuries caused by Rajan and Preman appellants 2 and 3, were
with a torch, iron rod and a cycle chain. None of the
injuries caused by them according to the postmortem report
were on any vital part of the body, though some of the
injuries caused by blunt weapons were grievous in nature.
We, therefore, convict each of the two appellants Rajan and
Preman, for an offence under Section 325 IPC and sentence
them to suffer rigorous imprisonment for two years each.
So far as the fourth appellant Sura Surendran is concerned,
he caused grievous injuries to the deceased with a knife.
His offence would, therefore, fall under Section 326 IPC and
convicting him for the said offence, we sentence trim to
suffer rigorous imprisonment for a period of three years and
to pay a fine of Rs. 500 (five hundred). In default of
payment of fine he shall further suffer rigorous
imprisonment for a period of three months. Fine, if
realised shall be paid to the heirs of the deceased.
The conviction of all the appellants for the offence under
Section 324 as recorded by the learned Judges of the High
Court as also for the other offences are maintained but
without the aid of Section 149 IPC. In view of the
sentences recorded for offence under Section 304 Part I
against the first appellant Subran, Section 325 IPC against
appellants 2 and 3, Rajan and Preman, and Section 326 IPC
against Sura Ca, Surendran, appellant 4, no separate
sentence are recorded for the other offences.
The appeal is accordingly partially allowed and disposed of
in the above terms.
N.V.K. Appeal
allowed partially.
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