Judgment :- 1. Twenty-six accused persons were tried under S.148,149, 302, 307, 324, 326, 341, 379 and 34 I.P.C. by the Kottayam Additional Sessions Judge, who convicted eleven of them [accused 1, 2, 3, 9,12,14,15, 21, 24, 25 and 26] under S.148, 324, 326 and 149 I.P.C. and acquitted the rest. The convicted persons were sentenced to undergo imprisonment for various terms ranging from seven years to three months - all sentences to run concurrently - for rioting and causing grievous hurt and hurt to two deceased persons and six others. Against this conviction, two appeals have been preferred, one by the eleven convicted accused and the other by the State for converting the conviction for grievous hurt into that of murder. 2. Parameswaran Nair and Narayanan Nair were direct brothers. Accused 1 and 2 are their nephews and Pw.1 is a son by their common wife. Consequent on the partition of the tarwad properties, effected two years ago, without the junction of accused I and 2, the relationship between the deceased and the accused became very much strained. Bitterness born out of property disputes led up to litigation, both civil and criminal. The date of incident 25-5-1959, was the second posting date of C.C. No. 56 of 1959, a criminal case in which sixteen out of the twenty-six accused in this case were arraigned as accused by the deceased Narayanan Nair. On the previous posting date of that case, 12-5-1959, the parties had quarrelled between themselves on the way back home, in the course of which some of the accused tried to belabour Parameswaran Nair and Narayanan Nair at the Kurisummood Junction. So on 25-5-1959 Pw.1 got down some persons Pws. 4, 5, 9,10 and 11 for protection from Thiruvalla, through his maternal uncles Pws. 2 and 3 and to avoid the previous posting day's experience, they took a longer route through the Kannanperur bund to reach their home. The criminal case C.C. No. 56 of 1959 was adjourned at about noon by the Magistrate. The accused left by the shorter Kurisummood route. The party of the deceased waited till 2 P.M. in their Vakil's office and then left for their home by the Kannanperur route to avoid meeting the accused on the way. The deceaseds' party consisted of ten persons including Parameswaran Nair, Narayanan Nair, Pws. 1, 2, 3, 4, 5, 9,10 and 11. Of these Pws. The party of the deceased waited till 2 P.M. in their Vakil's office and then left for their home by the Kannanperur route to avoid meeting the accused on the way. The deceaseds' party consisted of ten persons including Parameswaran Nair, Narayanan Nair, Pws. 1, 2, 3, 4, 5, 9,10 and 11. Of these Pws. 2, 4, 5 and 9 formed the pilot party, the two deceased and Pw.1 were in the middle and Pws. 3,10 and 11 formed the rear party. When they reached near the Veroor Temple at about 3-30 P. M. the accused rushed out from their Karayoga Mandiram close by, and attacked the deceased and others with dangerous weapons. Both Parameswaran Nair and Narayanan Nair were very badly hit. Parameswaran Nair, the elder of the two, aged 65, died on the spot and Narayanan Nair died the same day at 8-55 P.M., when he was undergoing treatment in the Changanacherry Hospital. Pws. 1, 2, 3, 4, 5 and 9 sustained injuries some of them being fracture of bones. The Circle Inspector of Police, Pw. 33 and others reached the place before 4-30 P. M., sent the injured Narayanan Nair and others in their jeep to the hospital for treatment and recorded the statement of Pw.1 at the spot. Pw. 1's statement recorded by the Circle Inspector, Ext. P-1 is the First Information in this case. Narayanan Nair lived long enough to give a dying declaration to the Magistrate, Ext. P11. The Circle Inspector, Pw. 33 was transferred and so Pw. 34 had to complete the investigation and lay the charge on 22-6-1959. 3. The post-mortem certificate, Ext. P-18 for examining the dead body of Parameswaran Nair, issued by Dr. V.C. Chacko, who died before his examination had to be proved by his senior officer, Pw. 7 Dr. John who knew Dr. Chacko's signature and handwriting. Ext. P-16 is the post-mortem certificate issued by Dr. John who conducted Narayanan Nair's autopsy. The factum of death of Parameswaran Nair and Narayanan Nair was not disputed. It is amply proved by the inquest, the post-mortem certificates and the oral evidence of their son Pw.1 and others. Parameswaran Nair sustained six injuries, four of them being contused lacerated wounds on his head. John who conducted Narayanan Nair's autopsy. The factum of death of Parameswaran Nair and Narayanan Nair was not disputed. It is amply proved by the inquest, the post-mortem certificates and the oral evidence of their son Pw.1 and others. Parameswaran Nair sustained six injuries, four of them being contused lacerated wounds on his head. The external injuries fractured his skull bones, lacerated his left lung and ruptured the meninges, the cause of death being "Coma as a result of the injuries on the head." Narayanan Nair sustained fifteen injuries out of which eight were on his head, all contused lacerations of different dimensions. Injury No. 11 is a contusion on the left shoulder which completely crushed the spinous process. The cause of death is stated to be syncope due to shock and haemorrahage. Pw.1 sustained only a contusion on the middle part of the right arm. Pw. 2 sustained eight injuries of which two are lacerated wounds on the head. The radius and ulna at the lower third of the right forearm have been fractured. Pw. 3 had also four lacerated injuries two on the head, one on the scapula and the fourth has fractured the right ulna. Pw. 4 sustained nine contused injuries of which three are on the head and the others on the shoulder, thigh and the clavicle. Ext. P-24 is the wound certificate. Pw. 5 sustained six injuries in all, of which three are on the head. Ext. P-26 is the wound certificate. Pw. 9 sustained six injuries in all, two lacerated wounds on the head and the others contusions on the left scapula, left forearm, left elbow and the right thumb. Ext. P-28 is the wound certificate. Pw.1 was treated as an out-patient and Pws. 2 to 5 and 9 as in-patients. 4. The accused are all inter-related. Accused I and 2, nephews of the deceased, are direct brothers, accused 3 and 6 are their brothers-in-law and accused 7 is their father. Accused 18 and 19 are the 3rd accused's sister-in-law's brothers. Accused 21 is the son of accused 13, accused 24 and 25 are the nephews of the 13th accused, 11th accused is the brother-in-law of the deceased Parameswaran Nair, accused 9,12 and 26 are brothers and the nephews of accused 8, their mother being Kizhakkethil Kochu Paru. The 20th accused is the 8th accused's uncle's son. Accused 21 is the son of accused 13, accused 24 and 25 are the nephews of the 13th accused, 11th accused is the brother-in-law of the deceased Parameswaran Nair, accused 9,12 and 26 are brothers and the nephews of accused 8, their mother being Kizhakkethil Kochu Paru. The 20th accused is the 8th accused's uncle's son. Accused 22 is the 8th accused's uncle's brother, accused 10 the aunt's son of the deceased Parameswaran Nair, accused 15 is the son of the 10th accused, the 17th accused is the 10th accused's sister's son, the 10th accused is the uncle's daughter's son of the 4th accused. 5. All the accused denied the charges and pleaded absence from the scene of offence, except accused 12 who stated that when he was in the Veroor Karayoga Mandiram on 25-5-1959 he heard abuses in vulgar language showered on the people of Veroor and he went out. Saying that he should not be let off Parameswaran Nair and Narayanan Nair struck him on his head with a stone. He cried out. On hearing it the persons who had assembled in the Karayogam came out to the place of occurrence. Thereafter there was a great commotion and he did not know what all took place at that time. Accused 12 had three injuries. Ext. P-30 wound certificate describes them as (i) a partially healed wound 1/2" long on the top of the head. (ii) Another scabbed wound on the right side of the head. (iii) A soar on the tip of the left middle finger with a split on the nail. Accused 12 was seen by the doctor only on 7-6-1959, that is, twelve days after the occurrence, The doctor opines that the throw of an axe-handle can cause them as well as a hit with stone. Accused 12 was treated as an out-patient. 6. The learned Advocate for the defence tried very hard to establish that the deceased's party was in the aggressive. It was argued that the route the deceased took was the longer one, because they wanted to retaliate for the occurrence on the 12th by attacking the accused in their strong hold. Protected as they were by rowdies from Thiruvalla, they wanted to measure their strength with the accused and cow them down once for all. We think this inference is not correct. Pw.1 and Pw. Protected as they were by rowdies from Thiruvalla, they wanted to measure their strength with the accused and cow them down once for all. We think this inference is not correct. Pw.1 and Pw. 3 mention the reasons why they preferred the longer route. The possibility of the accused gathering in the N. S.S. Karayoga Mandiram at Veroor could not have been anticipated by the injured party as the houses of the accused are to the east of the Mandiram and they need not have gone to the Mandiram at all. Except for accused 12's superficial injury, no other accused sustained even an abrasion. If the deceased persons' party had gone there for attack, there should have been an attack with weapons. If they were armed and if the Peringara-Thiruvalla, people who had come to protect Pw.1 and his father were such rowdies, it is indeed strange that even when two persons were killed and six others injured, no one of the 25 accused would sustain a scratch mark on their bodies. The absence of injuries on the accused is proof positive that the deceased party was unarmed and the weapons of offence were all with the accused. In any case, the deceaseds' party would not have meekly sustained very serious injuries themselves and allowed their relations to be killed in their presence, if they had any weapons with them. Even accused 12 stated that Parameswaran Nair and Narayanan Nair could hit him only with a stone. Unpreparedness for attack is the best proof of non-aggressiveness. We therefore agree with the trial judge that the accused were the aggressors. 7. The learned judge's finding that it is the desire to avoid troubles from the accused that prompted the deceased and party to go by way of Kannanperur bund is also attacked by the learned defence Advocate. Ext, P-1 and the evidence of Pws.1 and 3 clearly show that the deceased knew from the people at Changanacherry Junction that the accused went by the Kurisummoodu road and so they purposely took the longer route which is after all only half a mile more than the other. This explanation is quite acceptable when we find that the deceaseds' party was empty-handed and sustained all the injuries. The incident at the Kurisummoodu Junction on the 12th is very well proved by Pws. This explanation is quite acceptable when we find that the deceaseds' party was empty-handed and sustained all the injuries. The incident at the Kurisummoodu Junction on the 12th is very well proved by Pws. 22, 24 and 26 and is not seriously disputed by the accused. Under these circumstances, it can be believed that the party of the deceased went by the longer route not with any idea of a pre-planned attack but to avoid troubles at the hands of the accused. 8. it was vehemently argued before us that Ext. P-11 the dying declaration of Narayanan Nair is not a reliable record. Some defects have been listed by the learned defence advocate, [i] the declaration is recorded scarcely thirteen minutes before his death when he was suffering from giddiness, intense pain and suffocation, [ii] he could not sign the statement, [iii] the number of the case is given wrongly as 356 instead of 56, [iv] the time of occurrence is not exactly stated. What is stated is after 12 O'clock instead of 3-30 P. M. and [v] he could not mention the names of the accused in an intelligible way. 9. The dying declaration was recorded by the Magistrate in the Changanacherry Government Hospital at 8-15 P. M. The translation of it reads as follows: "Q. What is your name? A. Narayanan Nair. Father's name: Padmanabhan Nair. Q. What is your house name. Puthentharakkal, Kara: Veroor, Pakuthy: Vazhappally Kizhakkumbhagom. Q. Are you now quite conscious. A. Yes. I have giddiness. Q. When were you taken to the hospital? A. Two nazigas before. Q. Who brought you here? A. I was brought here in a police van. Q. Do you know where you are lying now. A. I know I am in the Changanacherry Hospital. Q. Have you any fear that you would die ? A. Yes. I have the fear that I would die. I have intense pain on the back and I am feeling suffocated. Q. How did you sustain these injuries? A. To day there was a case in the Magistrate's Court. After the case I went back to my house. I was beaten down on the road to the north of the Veroor Temple, Kizhakkepurathu Kizhakkethil Kochu Paru's three sons, Thekkothi Raman, Vadakkail Kuttappan, Kunjukujttan, Balan, Appu, Chellappan, Vasu, Kunnampurathu Kuttappan Pillai, his son Rajappan, Neelacanta Pillai, Konniadathu Chellappan and others. After the case I went back to my house. I was beaten down on the road to the north of the Veroor Temple, Kizhakkepurathu Kizhakkethil Kochu Paru's three sons, Thekkothi Raman, Vadakkail Kuttappan, Kunjukujttan, Balan, Appu, Chellappan, Vasu, Kunnampurathu Kuttappan Pillai, his son Rajappan, Neelacanta Pillai, Konniadathu Chellappan and others. Kochu Paru's son Thangappan hit me on my head with an iron road. All the accused in C. C. No. 356 were there. About ten to fifty persons were there. When the case was adjourned the accused went ahead and waited in a body. The occurrence is after twelve noon. My elder brother was also with me. His name is Parameswaran Nair. He died at once. His head was broken with blows and he fell down. Saying he must be killed everybody beat him at the place where he fell down. I was lying on the road, I was removed from the road by the Yejam an. They ran away after inflicting the injuries. After I fell down they again caused me hurt. I do not know who have injured me. [This evidently refers to those who beat him after the fall]. Q. Anything more to be stated. A. Nothing. Q. Do you hear the statement read? Is it correct? A. Yes. It is correct." 10. A reading of the dying declaration gives us the impression that it is an entirely reliable record. It has the naturalness of a dying man's last words. The Magistrate and the doctor have certified to the mental capacity of the declarant. There is no intrinsic evidence of any taint of tutoring by outsiders. Narayanan Nair was taken in the jeep along with Thiruvalla people Pws. 2, 3, 4, 5 and 9 who were unable to name the accused who caused them injuries. They could never have given any of the names of the accused much less the description of accused 9,12 and 26 as Kochu Paru's three children. Pw.1 is the only person who could have done some useful prompting, but he was with the dead body of Parameswaran Nair after giving his statement Ext. P1 at the spot when the declaration was being recorded by the Magistrate in the Changanacherry Hospital, at a distance of nearly four miles from the scene of offence. Pw.1 is the only person who could have done some useful prompting, but he was with the dead body of Parameswaran Nair after giving his statement Ext. P1 at the spot when the declaration was being recorded by the Magistrate in the Changanacherry Hospital, at a distance of nearly four miles from the scene of offence. No question is asked to the Magistrate and the Doctor as to the presence of the son Pw.1 in the hospital, Pw. 33 says that he reached the hospital only after Narayanan Nair died. Pw.1 the only blood relation of the deceased Parameswaran Nair would not have left the spot before Parameswaran Nair's body was removed to the hospital for post-mortem examination. Moreover, if Pw.1 were tutoring, the dying man would have given exactly the same version as Pw.1. Any prompting by Pw.1 at the time of recording Ext. P-11 would not have been countenanced by the Magistrate and the Doctor. The deceased Narayanan Nair was the complainant in that day's case in court and he would require nobody's help to mention the names of the accused. He knows his nephews, their brothers-in-law, their father and all the accused. It is a broad day light occurrence on a public road. He refers to 14 persons out of whom he mentions twelve persona by their pet names and specifies the name of accused 9, Thangappan Nair, son of Kochu Paru as the person who hit him on the head with an iron rod. His reference to accused 9,12 and 26 as Kochu Paru's children and that of accused 1 and 2, his nephews, as Chellappan and Vasu has a striking naturalness about it. Of the appellants accused 1, 2, 8, 9,12,15, 21, 24, 25 and 26 are mentioned by the deceased Narayanan Nair in Ext. P-11 as members of the unlawful assembly who injured him and his brother. He is definite that all the accused in the criminal case ported for that day were there and accused 14 is one of the accused. To us, the seeming ambiguity and the little mistake in the number of the case in Ext. P-11 are all telling circumstances to show that Ext. P11 can be relied on in its entirety. This dying declaration has the impress of truth on it. It has no infirmity whatsoever as to require corroboration. To us, the seeming ambiguity and the little mistake in the number of the case in Ext. P-11 are all telling circumstances to show that Ext. P11 can be relied on in its entirety. This dying declaration has the impress of truth on it. It has no infirmity whatsoever as to require corroboration. Even if corroboration is wanted, the evidence of Pw.1 who was in the midst of the riot and got himself injured is there. The occurrence on the date of the criminal case, the scene of offence being the road near the Veroor Temple, the instantaneous death of his brother Parameswaran Nair as a result of blows on the head, are all proved facts which carry the dying declaration successfully through the test of reliability and the identification of the accused in Ext. P11 gains corroboration from the evidence of Pw.1. Though the evidence of the other injured may not be acceptable for the purpose of identification, it affords general corroboration of the occurrence. 11. Let us now refer to the evidence of Pw.1, the only survivor of the party of three who knew all the accused very well. He describes the beginning of that day's trouble, as well as the troubles from some of the accused, his father and father's brother had to face at the Kurisummood Junction on 12-5-1959. He also states that to protect him his father and his father's brother, his maternal uncles Pws. 2 and 3 brought the Thiruvalla People Pws. 4, 5, 9,10 and 11 to escort them by forming a pilot party and a rear party. When they reached near the Veroor N.S.S. Karayoga Mandiram the accused rushed out in a body and began to attack the first party (pilot party) with iron rods, rafter pieces, etc. When the two deceased and himself tried to run away they were surrounded by accused 1, 2, 8, 9,12,14,15, 21, 24, 25 and 26. He then ran away and stood near the kayala nearby and saw the whole incident. He saw his father's brother Parameswaran Nair beaten by accused 1, 2, 8, 9,12,14,15, 21, 24, 25 and 26, by iron rods, rafter pieces, and then they turned towards his father Narayanan Nair and beat him with iron rods. He mentions accused 1, 2, 8, 9,12,14,15, 21, 24, 25 and 26 as his father's assailants. He saw his father's brother Parameswaran Nair beaten by accused 1, 2, 8, 9,12,14,15, 21, 24, 25 and 26, by iron rods, rafter pieces, and then they turned towards his father Narayanan Nair and beat him with iron rods. He mentions accused 1, 2, 8, 9,12,14,15, 21, 24, 25 and 26 as his father's assailants. He adds that he ran into the house of Pw.17 when he was chased by accused 1, 8, 9 and 12. When some of the accused tried to catch him by forcing open the door of the house he ran out and threw an axe-handle found in the courtyard at the accused which hit one among them (accused 12). When the accused moved away, he rushed into the house of Pw.17, shut himself up and was thus saved. He came out after some time and removed his wounded father Narayanan Nair by carrying him to the verandah of Pw.17's house. He adds, that he gave the First Information Statement at 4-30 P. M. at the spot and left the place only at 8 P. M. In Ext. P-1 statement Pw.1 has given substantially the same version as in court. The act of hitting Parameswaran Nair on the head with iron rod is ascribed to accused 9. Accused 2 is said to have hit him with a rafter piece. Parameswaran Nair fell when accused 1 and others hit him with iron rods. Accused 12,18, 21, 26 and others also hit him. Then accused 1 beat Narayanan Nair with an iron rod. Accused 1, 8,9 and 12 turned towards him and accused 8 hit him. He is the only witness who could have seen the whole occurrence and identified the assailants of his father and father's brother and himself. The evidence of his running into the house of Pw.17 and his being hit by accused 8 with an iron rod is completely acceptable. So far as the dying declaration corroborates the evidence of Pw.1 and vice versa we are agreeing with the learned Sessions Judge that the guilt of accused 1, 2, 8, 9,12,14,15, 21, 25 and 26 is brought home to them. 12. It is argued that Pw.1 should not be believed as he is the son of the deceased who were on inimical terms with the appellants. 12. It is argued that Pw.1 should not be believed as he is the son of the deceased who were on inimical terms with the appellants. It is well settled, that in the appreciation of evidence, the relationship of witnesses with the deceased or injured is not a ground for not acting upon their testimony. In this case Pw.1 is the only survivor of the deceased's blood relations who accompanied them and saw everything and got himself injured. He also could identify the accused whose names were given by him from the earliest possible moment. His evidence is amply corroborated if corroboration is needed. The learned judge found his evidence reliable and we have no reason to differ. 13. Another ground of attack against Pw.1 is that his allegation of theft of Rs. 500 from the person of Parameswaran Nair by accused 10 is found false by the learned Judge. So the learned defence Advocate argues that the oft-quoted maxim "falsus in uno falsus in omnibus" must be applied in his case. Bewildered by the suddenness of the attack that killed his nearest relation and brought his father and maternal uncles to the brink of death, this young man of 24 is not likely to concoct a case of theft of Rs. 500/- at that moment, as if no more serious offence was committed by the accused that day. The learned judge could have very well said that the charge of theft is not proved, but to say that no theft took place appears to be an ill-considered and hasty opinion. Pw.1 who knows all about Parameswaran Nair's ways, says that he had seen currency notes tucked up his waist cloth on that day also and the deceased Parameswaran Nair used to keep all his money with him wherever he goes. The cloth merchant Pw. 29 says that he was paid Rs. 10/- by Parameswaran Nair from one packet on the day of occurrence at 8-30 A.M. and he saw another packet with Parameswaran Nair, the contents of which he was not sure of. It is not a strange sight to see up-country old men keeping money on their bodies by day and sleeping over it by night keeping it usually under their pillows. There is a recovery of Rs. 250/- from the 10th accused's nice's husband, Pw.19, a trader in tapioca, as per information given by accused 10. It is not a strange sight to see up-country old men keeping money on their bodies by day and sleeping over it by night keeping it usually under their pillows. There is a recovery of Rs. 250/- from the 10th accused's nice's husband, Pw.19, a trader in tapioca, as per information given by accused 10. Pw.19's resiling in court is only natural. He has everything to gain and nothing to lose by such a denial. Pw.19's self-serving denial does not make the allegation of theft made by Pw.1 false and his evidence untrue. Pw.1 in Ext. P-1 statement clearly says "that he saw hundred rupee notes with Parameswaran Nair when he opened the packet in the Vakil's office. He also says he saw accused 10 taking them from the folds of Parameswaran Nair's cloth. He adds that accused 10 knows very well that Parameswaran Nair is in the habit of carrying plenty of money with him when he goes out". This portion in Ext. P-1 evidently escaped the notice of the learned judge or else he would not have said in para 6 of his judgment that "according to Pw.1 it was in the Vakil's office that he saw the contents of the packet. He said he told the police about it at the time Ext. P-1 statement was recorded, but it is not in Ext. P-1". It is clearly an error apparent on the face of the record. Pw. 19's wife's uncle is the tenth accused. Accused 17 is the brother-in-law of Pw. 19 and accused 15 is the son of accused 10. Pw. 19 is cited to prove that accused 10 entrusted him with Rs. 250/- for the expenses of the case and for proving the recovery mahazar Ext. P38. He admitted his signature in Ext. P-38 mahazar and also the production of Rs. 250/- to the police but denies having produced it as the "money handed over to him by accused 10". The fact that accused 10 absconded for 55 days till he surrendered before court on 7-7-1959 after the charge was laid on 22-6-1959 and the fact of Pw. 19's producing Rs. 250/- and signing the mahazar prepared by the Circle Inspector all go to show that the offence of theft as stated by Pw.1 is not false. The fact that accused 10 absconded for 55 days till he surrendered before court on 7-7-1959 after the charge was laid on 22-6-1959 and the fact of Pw. 19's producing Rs. 250/- and signing the mahazar prepared by the Circle Inspector all go to show that the offence of theft as stated by Pw.1 is not false. Neither the influential N.S.S. Karayogam nor the witness would have kept quiet if the police Circle Inspector were to coerce him to produce such a big sum of Rs. 250/- of his own earnings before the Circle Inspector to be made use of for creating evidence against his wife's uncle (accused 10). In this connection we think the Circle Inspector Pw. 34 was needlessly distrusted by the lower court. The Circle Inspector gives evidence that Pw. 19 was 'discovered' as the result of the information given by accused 10 and when Pw. 19 was asked he produced Rs. 250/- he got from accused 10. There is the recovery mahazar signed by Pw. 19 in English. He does not deny his signature. It cannot be said that the learned judge was right when he failed to refer to Ext. P-38 mahazar and Pw. 34's evidence and ask for accused 10's explanation when he was questioned under S.342. The learned Sessions Judge made reference in the judgment to the recovery mahazar but said nothing for or against it, except that Pw. 19 denies it. In short, the learned Sessions Judge is not at all justified in declaring that "I find the offence of theft was not committed by the accused" when at best it is only a case of offence "not proved". The acquittal of accused 10 who is mentioned in Ext. P-11 and who was seen by Pw.1 taking a packet from Parameswaran Nair is also not justifiable. 14. There is an attack that Ext. P-1 was not recorded at 4.30 P. M. on the 25th. The intrinsic evidence, the learned defence advocate found, is the mention of crime No. 64 of 1959 on the top of the printed form of the inquest of Parameswaran Nair's dead body. Lengthy arguments addressed on this matter fall flat and lose their force when it is seen that the crime number is an omission filled up later in another pencil and that not in the body of the inquest form. Lengthy arguments addressed on this matter fall flat and lose their force when it is seen that the crime number is an omission filled up later in another pencil and that not in the body of the inquest form. The hurry with which the inquest was begun at 5.30 P.M. before the case was actually registered at 6 P.M. is responsible for the omission. If crime number 64 of 1959 was noted in the inquest form even as it was being prepared then the argument would have had some force. The learned Advocate evidently has not seen the original of the inquest report form In the attested copy the difference in the colour of the pencil is not noticeable. The Circle Inspector has satisfactorily explained this. Another argument was that in the inquest part II the answer to the question "if any person suspected who and why" is that "it is known that the accused in the case filed by the deceased in the Changanacherry First Class Magistrate's Court which was posted for to-day are responsible for the occurrence and it is known that the deceased died of the injuries caused by them." It is argued that if Ext. P-1 was recorded earlier the names of all the 26 accused would have been mentioned instead. This "knowledge" of the Panchayatdars does not show that Ext. P-1 was not prepared before the inquest. The death of Parameswaran Nair and not the total number of the accused in the First Information Statement Ext. P-1 was the subject matter of the inquest. Pw. 1's statement was not with the police officers who were preparing the inquest and hence the generalisation which is correct to a great extent is made by the Panchayatdars. Here also Pw. 34 the Circle Inspector of Police gives a convincing explanation. Pw.1 was not examined at the inquest and so he cannot be discredited because of a slight difference in the hearsay information of the Panchayatdars. When Panchayatdars were examined not a word was asked to them how they came to that conclusion in the inquest. Ext. P-1 statement recorded by the Circle Inspector, was sent to the station for registering the case by the Head Constable in charge. He had registered it at 6 P.M. but the copy is seen to have been receipted by the Magistrate only on the 28th. Ext. P-1 statement recorded by the Circle Inspector, was sent to the station for registering the case by the Head Constable in charge. He had registered it at 6 P.M. but the copy is seen to have been receipted by the Magistrate only on the 28th. From this one circumstance, it was vehemently argued that the First Information Report was not prepared promptly and despatched expeditiously. No such inference could be drawn as the delay could well have occurred after the record reached the Magistrate's Court. It was alleged that the General Diary and the Despatch Register of the Changanacherry Police Station are not produced because suspicious entries might be found there. In the interests of justice, we got down the General Diary and the Despatch Register and found no ground for the complaint levelled against the prosecution. 15. The only point that can be said against Pw.1 is his contradictory answers about his movements on the night of 25-5-1959. In his anxiety to deny the false suggestion that he had gone to the hospital to tutor his father Narayanan Nair, he has stated that he was in a tea shop near the police station all through the night. He attempted to deny that he went to the police station itself, but when Ext. D-1 was shown he had to change his position. Much ado is made of this, but we do not think Pw.1's evidence deserves to be disbelieved on this score. He is also a human being sharing the frailties common to ordinary mortals and he must have committed blunders in the stress of cross-examination. Basing on the learned judge's opinion, the learned defence Advocate argues that Pw.1 does not deserve to be believed because he introduced a false allegation of theft and prevaricated when he was asked about his movements on the night of 25-5-1959. We have already explained that the allegation of theft is not false and his so-called prevarications are only petty mistakes made in the course of cross-examination. The maxim "falsus in uno falsus in omnibus" is not an absolute rule of law, but a rule of caution. We have already explained that the allegation of theft is not false and his so-called prevarications are only petty mistakes made in the course of cross-examination. The maxim "falsus in uno falsus in omnibus" is not an absolute rule of law, but a rule of caution. In this connection the following quotation from Wigmore on Evidence may be referred to: "the maxim is in itself, worthless; first in point of validity and secondly, in point of utility because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore, it is a superfluous form of words. It is also in practice pernicious" So, even if there is anything untrue in Pw.1's evidence, the true portions can be believed and the other portions disbelieved. To us, there is nothing unbelievable in the substance of Pw.1's evidence and so we believe Pw.1. The evidence of the injured in riot cases is more valuable than that of others. His evidence corroborates the dying declaration and the dying declaration corroborates his evidence. 16. One of the points stressed by the defence was that the accused in Ext. P-11 are not properly identified. The accused mentioned by pet names in Ext. P-11 are accused 9, 8, 25, 18, 24, 1, 2,10,15,11, and 4 and accused 9,12 and 26 are referred to as Kochu Paru's sons. Pw. 34 swears that he has verified the fact that accused 9,12 and 26 are the sons of Kochu Paru. In their 342 statement the accused 9,12 and 26 assert their mother's name is not Kochu Paru. It is not true on the very face of it. In Ext. P-11 Narayanan Nair has stated that Kochu Paru's son Thankappan Nair beat him on the head with an iron rod. Accused 9,12 and 26 do not dispute that they are brothers. They all have the same house name, viz., Veroor Kizhakepurath Kizhakkethil and surname their uncle the 8th accused's name being Raman Nair. Pw.1 is positive that they are three nephews of accused 8. The accused simply deny that their mother's name is Kochu Paru of Kizhakepurath Kizhakkethil, but they do not say what their mother's name is, to compel belief in their stand that their mother's name is not Kochu Paru. Pw.1 is positive that they are three nephews of accused 8. The accused simply deny that their mother's name is Kochu Paru of Kizhakepurath Kizhakkethil, but they do not say what their mother's name is, to compel belief in their stand that their mother's name is not Kochu Paru. Narayanan Nair and Pw.1 cannot make any mistake in the name of the mother of accused 9,12 and 26. 17. We shall now see what the background of the whole occurrence is. Parameswaran Nair, Narayanan Nair and their son Pw.1 rebelled from the Veroor N.S.S. Karayogam and are alleged to have formed one of their own. Narayanan Nair sued accused 1 in O.S. 306 of 1957 for specific performance of a contract to sell a property for Rs. 1000/-. The suit was dismissed, copy of the judgment being Ext. P-3. O.S. 309 of 1957 is a suit by the 1st accused against the deceased persons for recovery of possession of properties. A decree was passed in the case allowing the 1st accused to recover possession. O.S. 43 of 1958 is a case by accused 2 against the deceased Parameswaran Nair and Narayanan Nair and 38 others of the family. It was filed on 24-2-1958 to bring about a re-partition of the tarwad properties. Ext. P-48 is a copy of the plaint in O.S. 65 of 1959, a suit instituted by the deceased Narayanan Nair for an injunction restraining the 1st defendant, the N.S.S. Karayogam, Veroor from interfering with his peaceful possession of the property. O.S. 6 of 1958 was a suit instituted by Parameswaran Nair against the 1st and the 2nd accused and others for recovery of money. That suit was also dismissed. Ext. P-49 is a copy of the complaint in C.C. 56 of 1959. From these records it is clear that the accused 1 and 2 on the one side and the deceased and their son Pw.1 on the other were on inimical terms and the Veroor Karayogam had also cause for enmity towards deceased Narayanan Nair. On 2-4-1959 the deceased Narayanan Nair filed before the Changanacherry Magistrate's Court a complaint against his nephews accused 1 and 2 and 14 others for offences under S.148,149, 379, 427 & 452 of the I.P.C. for destroying the house in a property of 45 cents concerned in O.S. 306 and 309 and for rioting, etc. On 2-4-1959 the deceased Narayanan Nair filed before the Changanacherry Magistrate's Court a complaint against his nephews accused 1 and 2 and 14 others for offences under S.148,149, 379, 427 & 452 of the I.P.C. for destroying the house in a property of 45 cents concerned in O.S. 306 and 309 and for rioting, etc. This case C.C. 56 of 1959 was adjourned to 12-5-1959 first and then to 25-5-1959 By these cases, civil and criminal, Parameswaran Nair and Narayanan Nair are seen to be consistently persecuting the accused. 18. In this connection we shall refer to the evidence of Pws. 22, 24 and 26 to see what happened on 12-5-1959 Pw. 22 Mathai Varghese who has a shop at the Kurisummood Junction saw accused 12 and 14 and the deceased Parameswaran Nair and Narayanan Nair quarelling. Accused 12 and 14 were complaining that "they could not live in that Kara because of Parameswaran Nair and Narayanan Nair who were filing false cases. "They were making them to enter and go out of courts daily. Without their heads going off, there is no salvation." The people gathered there parted the parties, accused 1 went by the way behind the witness's shop and Parameswaran Nair and his brother went westwards He heard Parameswaran Nair and Narayanan Nair abusing accused 12 and 14 when he was in his shop and two persons pacified them. Nothing to discredit the witness is asked in cross-examination and there is no reason to disbelieve him. Pw. 24 is Devasia Ouseph who lives in the Kurisummood Junction. He saw Parameswaran Nair and Narayanan Nair at 2-30 P.M. on the 29th Medam 1135/12-5-1959 at the Kurisummood Junction. Accused 9,12,14 and 24 were abusing Parameswaran Nair and others and declaring "We were sleeping in our houses and yet we are made accused by you in criminal cases. You fools should have your heads off and we are not going away without doing it." Then the witness called the 24th accused by name and asked him not to quarrel and to let Parameswaran Nair and party go their way. When the accused again abused Narayanan Nair he took Narayanan Nair to a distance of half a furlong. Except some questions about the identity of some of the accused, no cross-examination was directed against the truth of this declaration by the accused. Pw. When the accused again abused Narayanan Nair he took Narayanan Nair to a distance of half a furlong. Except some questions about the identity of some of the accused, no cross-examination was directed against the truth of this declaration by the accused. Pw. 26 is a distant relation of the deceased persons. He says that on 12-5-1959 after their return from court, there was a quarrel between Narayanan Nair, Parameswaran Nair and Pw.1 on the one side and the accused 2, 3, 8,12,14, to 17 and 24 on the other. The 14th accused asked Narayanan Nair to come out of his house if he had the boldness to beat him. Hearing the challenge the witness came out and pacified and sent away accused 24. The other accused came and stood at the corner of his purayidom and then Narayanan Nair & Parameswaran Nair came out & said that "as you have trespassed into the house we are coming out to meet death at your hands". Pointing to accused 2 and saying that he is more determined than others to kill him, Parameswaran Nair gave a slap on the face of accused 2. Accused 2 drew out a dagger to stab Parameswaran Nair. Then the witness and others interfered and sent the accused to the west and Parameswaran Nair and Narayanan Nair to the south. 19. The mistaken impression that the Thiruvalla people have come for an attack with daggers or knives might have been responsible for the blind and furious attack by the accused on Pws. 2 to 5 and 9 and their leaders Pw. 1, Parameswaran Nair and Narayanan Nair. The influential Karayogam seems to have played an all out game and managed to win over the eye-witnesses Pws. 12,13 and 17. Even the maternal uncles of Pw.1 have in a way betrayed their attachment to the N.S.S. Karayogam. It is the hostile prosecution eyewitnesses and the injured Thiruvalla people who supplied materials for the defence contention. When Pw. 3 was asked whether they had challenged the Veroor people in an aggressive mood, he denied that and added that somebody in their party might have done that. When asked whether he had drunk toddy Pw. 3 said he did not, but said somebody probably Pw. 5 might have entered the toddy shop. When Pw. 3 was asked whether they had challenged the Veroor people in an aggressive mood, he denied that and added that somebody in their party might have done that. When asked whether he had drunk toddy Pw. 3 said he did not, but said somebody probably Pw. 5 might have entered the toddy shop. When the witness was asked whether there was stone throwing he said he has not done it, but somebody else in his party might have done it. This is a subtle method of sabotaging the prosecution case. The imperious necessity of the Karayogam to save their prominent members from death sentences in this case of double-murder committed in front of their Karayoga Mandiram might have been responsible for this strange attitude of the maternal uncles of Pw.1 and the injured people from Thiruvalla. 20. The police investigation also appears to have been a bit indulgent towards the accused. In a riot case of this nature, where the accused are strangers to the injured, a test identification parade by the Magistrate at the investigation stage, would be a very necessary step. In this case it is omitted, for no convincing reason. Pw. 34 the Circle Inspector was pointedly asked whether in the nature of this case he thought it not desirable that an identification parade by the Magistrate was conducted. He replied a little sneeringly "If I were so conscious I would have done that." He added that he did not try to conduct an identification parade in the presence of the Magistrate and said "I conducted one in my presence in the police station on 8-6-1959". We have no quarrel with the Circle Inspector, if the courts would give him the status of a Magistrate, but the Legislature views even a Circle Inspector of Police with suspicion and gives more credence to the evidence gathered by the police in the presence of the Magistrate. Ss. 25 and 26 of the Evidence Act and Ss 162, 171, 176, etc. of the Criminal Procedure Code, not to speak of other legislative enactments, unfortunately view the police with suspicion. Till Procedure Code is amended, we have to maintain that the test identification parade conducted by a police officer alone attracts the operation of S.162, Criminal Procedure Code and makes that evidence inadmissible. of the Criminal Procedure Code, not to speak of other legislative enactments, unfortunately view the police with suspicion. Till Procedure Code is amended, we have to maintain that the test identification parade conducted by a police officer alone attracts the operation of S.162, Criminal Procedure Code and makes that evidence inadmissible. In this connection the following observations made by the Supreme Court in Ramkishan v. Bombay State, AIR. 1955 Supreme Court 104 at 115, may well be remembered: "The whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these circumstances that the statements, if any, involved in the process of identification were statements made by the identifiers to the Panch witnesses and not to the police officers as otherwise it will be easy for the police officers to circumvent the provisions of S.162 by formally asking the Panch witnesses to be present and contending that the statements, if any made by the identifiers were to the Panch witnesse sand not to themselves. We are therefore of the opinion that the test identification parades in regard to the accused 4 which were held between the 16th January and the 22nd January 1952 attracted the operation of S.162 & the evidence of identification at those parades was inadmissible against accused 4." Human memory is fallible and it plays lot of tricks with us after the lapse of considerable time when we attempt to remember strange persons whom we saw for the first time and that for a short while. So the evidence given by the witnesses from the witness box becomes trustworthy only when it is corroborated by a test identification parade conducted by a Magistrate at the investigation stage. In cases of this nature test identification parade of the suspects aught to be held at the earliest opportunity possible before a Magistrate. It is really unfortunate that many of the culprits had to be acquitted by the learned Sessions judge because the witnesses who came from Thiruvalla could not properly identify the accused from Changanacherry. In cases of this nature test identification parade of the suspects aught to be held at the earliest opportunity possible before a Magistrate. It is really unfortunate that many of the culprits had to be acquitted by the learned Sessions judge because the witnesses who came from Thiruvalla could not properly identify the accused from Changanacherry. If the omission to conduct a test identification parade in this case is inadvertent, it is only regretted But if as seen from the answers, the omission is purposeful, an acquittal of many of the accused by the trial judge is the foreseen end of the trial for which nobody else is responsible. 21. Now that we find that the prosecution has established a case against the appellants, we shall refer to their explanation in their defence. We have already stated that excepting accused 12, all others pleaded alibi and denied participation in the rioting. It cannot be that (except the 12th accused) twenty-five persons in all, are falsely implicated by a man who was on the threshold of death and fully aware that divine displeasure would be falling on him if untrue things are mentioned as true in a solemn statement at the last moment. Of course, the accused are entitled to raise inconsistent pleas, but for them to get the benefit of doubt they must have offered a reasonable explanation that creates doubts. We see very often very near relations falsely mixing up innocent persons with the guilty, but it is a strange phenomenon, unlikely and opposed to human nature, that all the guilty are exculpated and innocents alone are implicated. This idea is given expression to by His Lord-ship Bose, J., in Dalip Singh v. State of Punjab, A.I.R. 1953 Supreme Court 364. "Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth. No doubt no sweeping generalisation can be possible in all cases but at the same time there cannot be any general rule of prudence to require corroboration before the evidence is believed. Each case must be limited to and governed by its own facts". The civil and criminal litigation as evidenced by Exts. No doubt no sweeping generalisation can be possible in all cases but at the same time there cannot be any general rule of prudence to require corroboration before the evidence is believed. Each case must be limited to and governed by its own facts". The civil and criminal litigation as evidenced by Exts. P-46, P-47, P-48 and P-49 must have driven the nephews accused 1, 2 and their party to be on inimical terms with their uncles. Excepting some fantastic suggestions made to some witnesses, nothing is made out why the 65 year-old Parameswaran Nair and his brother Narayanan Nair, the uncles of accused 1 and 2, on the posting date of their much hated criminal case 56 of 1959, were done to death in a riot of this magnitude. There is not even an iota of evidence to support the defence version. The unpreparedness of the deceaseds' party, and the sustaining of such serious injuries by Parameswaran Nair & Narayanan Nair & Pws. 2, 3, 4, 5 and 9, knock the bottom out of their suggestions. The story of the Karayogam people killing the uncles of accused 2 and 2 and causing serious injuries to all the Thiruvalla people Pws. 1, 3, 4, 5 and 9 on the posting day of the Criminal case when the 25 accused were not present on the spot appears to be an incredible one. 22. That there was an unlawful assembly and violence was used by it is well established by Ext P-11 and the evidence of Pws.1 to 5 and 9. The deceased Narayanan Nair mentioned fourteen persons in Ext. P-11 as having taken part in the riot out of which, the appellants except accused 14 are described by names and accused 9 is given a specific act. Pws.1 to 5 and 9 also speak about the unlawful assembly and the rioting. Two persons were killed, grievous hurt was caused to Pws. 2 and 3 and hurt to Pws. 1, 4,5 and 9 by this unlawful assembly. Hence the offence of rioting is very well established. Accused 12 completely corroborates the prosecution evidence about the unlawful assembly and rioting. Two persons were killed, grievous hurt was caused to Pws. 2 and 3 and hurt to Pws. 1, 4,5 and 9 by this unlawful assembly. Hence the offence of rioting is very well established. Accused 12 completely corroborates the prosecution evidence about the unlawful assembly and rioting. He admits his presence in the Karayoga Mandiram, his coming out on to the road, his crying on being hit by a stone by Parameswaran Nair and Narayanan Nair and people rushing out of the Mandiram in a body and the resultant commotion in the course of which he became conveniently unconscious. 23. There is no appeal against the acquittal of the fifteen accused in the case, but there is an appeal by the State to convert the conviction under S.326 into one of murder. The conviction of the appellants by the learned judge under S.326 IPC. after finding the common object of the unlawful assembly to be the murder of the deceased, does not appear to be correct and the decision of the Single Judge of the Ajmer Judicial Commissioner's Court in Niaz Mohammad v. Crown reported in AIR. 1949 Ajmer 49 at 52 on which the learned judge relied does not appear to be applicable. Here it appears to be a case of miscalculation bringing forth unanticipated results. Though the prosecution case is that all the 26 accused had assembled at the Karayoga Mandiram with the common object of murdering Parameswaran Nair and Narayanan Nair they have failed to make out that case. The deceased's party only wanted to reach home without coming into conflict with the accused by avoiding the Kurisummood route. The accused mistook the object of the deceased and wanted to teach their opponents a lesson by giving them a sound beating since they have defiantly crossed their path and appeared before their Karayoga Mandiram. When they saw the Thiruvalla people, escorting Parameswaran Nair, Narayanan Nair and Pw.1 in two parties-a pilot party and a rear party-the accused might have thought that the deceased's party was fully armed and was coming prepared for an attack. Hence they armed themselves with long rafter pieces, iron rods and sticks, so that before the opponents neared them to stab or to cut, they could be disabled. Hence they armed themselves with long rafter pieces, iron rods and sticks, so that before the opponents neared them to stab or to cut, they could be disabled. In this state of affairs, the common object of the unlawful assembly could not have been to murder Parameswaran Nair and Narayanan Nair as found by the learned Judge. It can only be causing grievous hurt to all who came to overawe them in their strong hold. If they wanted to murder Parameswaran Nair and Narayanan Nair outright, that was not the occasion and sticks, rafter-pieces and iron rods are not the weapons to be used. So we find, that the common object is causing grievous hurt to the deceased and others and not murder. It is also not possible to convict any one of the accused for murder in the face of the medical evidence, that no particular injury sustained by the two deceased has caused death. Syncope in the one case and coma in the other was the cumulative effect of all the injuries. 24. The tell-talk indulged in by accused 12,14 and 24 on 12-5-1959 could have been intended to frighten Parameswaran Nair and Narayanan Nair so that they might withdraw the complaint against the accused (C.C. 56 of 1959) on 25-5-1959. If the threat expressed to see their "heads disappear" was genuine, the accused would not have waited for thirteen days to pass by and for Thiruvalla people to come and escort the deceased from. Changanacherry to Veroor. Again the accused would have attempted the "beheading" when Parameswaran Nair and Narayanan Nair were on their way to the Changanacherry Magistrate's Court all by themselves on 25-5-1959 and not waited for their return from court escorted by a body of people. The unlawful assembly was suddenly formed and the rafter-pieces, sticks and rods snatched at the spur of the moment to beat up the deceaseds' party. The injuries on the head of Parameswaran Nair, Narayanan Nair, Pws. 2, 3, 4, 5 and 9 indicate that the object of the unlawful assembly was to beat all alike and not to murder Parameswaran Nair and Narayanan Nair. As the recovery of M.0s.1 and 2 is not properly proved we are also not able to find that they were the identical weapons used for beating Parameswaran Nair and Narayanan Nair. 2, 3, 4, 5 and 9 indicate that the object of the unlawful assembly was to beat all alike and not to murder Parameswaran Nair and Narayanan Nair. As the recovery of M.0s.1 and 2 is not properly proved we are also not able to find that they were the identical weapons used for beating Parameswaran Nair and Narayanan Nair. All things told, the State has not succeeded in establishing that the common object of the assembly was to murder Parameswaran Nair and Narayanan Nair. Some decisions of the Supreme Court including the one reported in Mathew v. T-C. State 1956 KLT. 355 were cited by the Public Prosecutor but we find the facts of those cases different from those of this case. The death of Parameswaran Nair and Narayanan Nair could not be the anticipated result of the common object of the unlawful assembly. The weapons alleged to have been used are not proved to be M. Os.1 and 2 and no one of the injuries caused to the deceased was necessarily fatal. These circumstances counsel us to uphold the conviction under S.326 and to dismiss the State Appeal. The State appeal fails and is therefore dismissed. 25. Now, we shall consider the evidence against each of the appellants. In this connection, it has to be mentioned, that the disregard of the mandatory provisions of S.367 of the Criminal Procedure Code by the trial judge in writing judgment has cast a heavy burden on us. There are no points for determination, and the decisions, and reasons for such decisions are not arranged in an orderly way. In a case of this nature evidence against each of the accused is to be marshalled and discussed. It is not enough to say that all things are stated in some portion of the judgment or other. Legislature had a purpose in enacting mandatory provisions and trial judges are not at liberty to dispense with the salutary provisions of the Criminal Procedure Code in writing judgments. The deposition of Pw.1 alone runs up to 138 pages. There is no analysis of the evidence of the witnesses, no enumeration of the criticisms raised by the defence and no reasons why the learned judge believes or disbelieves the prosecution evidence. The deposition of Pw.1 alone runs up to 138 pages. There is no analysis of the evidence of the witnesses, no enumeration of the criticisms raised by the defence and no reasons why the learned judge believes or disbelieves the prosecution evidence. It would have been of considerable help to the appellate court if the learned judge had acted up to the mandatory provisions of S.367, Criminal Procedure Code Accused 1. He is the 1st accused in C.C. No. 56 of 1959 and is implicated by Narayanan Nair in the dying declaration. Pw.1 also implicates him and ascribes to him the specific acts of beating Parameswaran Nair and Narayanan Nair with an iron road on the head. Pw.1 further swears that accused 1 saying "he should also be killed" beat Narayanan Nair on the head with an iron rod. Accused 2. He is one of the accused in C.C. 56. At the incident on the 12th he was given a slap by Parameswaran Nair. That offered him the provocation to retaliate. He is implicated by Narayanan Nair in Ext. P-11. Pw.1 gives clear and cogent evidence that accused 2 hit Parameswaran Nair with a rafter-piece and beat Narayanan Nair also with the same. Accused 8. He is also an accused in C.C. 56 He is mentioned in Ext. P-11. Pw.1 swears that he beat him with an iron rod and the injury on Pw.1 corroborates it. As the member of the unlawful assembly his part in the rioting and causing hurt to the two deceased persons is also spoken to by Pw.1. Accused 9. is mentioned in Ext. P-11 as one of the persons to whom Narayanan Nair ascribes the specific act of hitting him with an from rod on the head. Pw.1 mentioned him as one of the persons who beat Parameswaran Nair and Narayanan Nair with an iron rod on their heads. He is also an accused in C. C. 56 and had also taken part in the incident on the 12th. Accused 12. He is one of the accused in C.C. 56 of 1959 and had also taken part in the occurrence of the 12th. He is mentioned in Ext. P-11. Pw.1 attributes to him beating of both Parameswaran Nair and Narayanan Nair. Pw.1 says he threw an axe-handle that caused accused 12 injuries on his head. Accused 12. He is one of the accused in C.C. 56 of 1959 and had also taken part in the occurrence of the 12th. He is mentioned in Ext. P-11. Pw.1 attributes to him beating of both Parameswaran Nair and Narayanan Nair. Pw.1 says he threw an axe-handle that caused accused 12 injuries on his head. He admits his presence in the riotous assembly and alleges that Parameswaran Nair and Narayanan Nair hit him on the head with a stone before the Mandiram. Accused 14. He is one of the accused in C.C. 56 and took a leading part in the incident on the 12th. He is not mentioned in Ext. P-11 by name but as an accused in C. C. 56 he is also included as one of those who took part in the riot. Pw.1 swears that he was among those who surrounded and beat the deceased both before and after the fall. Accused 15. He is one of the accused in C.C. 56 and he was present at the incident on the 12th. He is mentioned by Narayanan Nair in Ext. P-11 as one of those who beat him. Pw.1 says he beat both the deceased. Accused 21. He is an accused in C.C. 56. In Ext. P-11 Narayanan Nair refers to him as one of those who beat him and Pw.1 says he beat Parameswaran Nair and Narayanan Nair both before and after the fall. Accused 24 and 25. Accused 24 is one who took a prominent part in the incidents of the 12th. Both of them are mentioned in Ext. P-11 and Pw.1 says that they beat both Parameswaran Nair and Narayanan Nair. Accused 26 is mentioned in Ext. P-11. Pw.1 says that he beat Narayanan Nair and Parameswaran Nair both before and after the fall. 26. Accused 24 is one who took a prominent part in the incidents of the 12th. Both of them are mentioned in Ext. P-11 and Pw.1 says that they beat both Parameswaran Nair and Narayanan Nair. Accused 26 is mentioned in Ext. P-11. Pw.1 says that he beat Narayanan Nair and Parameswaran Nair both before and after the fall. 26. The incident on the 12th supplying the motive, the riot taking place in front of the Karayoga Mandiram on the day of the Criminal case, the absence of injuries on the twenty-five accused persons, the wholesale denial by the accused of their presence and participation, the wholly improbable and unreasonable explanation given by the accused, the absence of motive for any other person to indulge in such a furious attack on the deceased and the strangers from Thiruvalla, the reliable dying declaration and the trustworthy evidence of Pw.1 who is one of the injured, all compel us to conclude that the conviction of the appellants has only to be confirmed. 27. In the result Criminal. Appeal 374 of 1959 is dismissed and the conviction entered against the appellants and the sentence passed on them by the learned Sessions Judge are confirmed with the modification that their conviction and sentence for causing grievous hurt and hurt to Pws. 2 to 5 and 9 are vacated as there is no proper identification of their assailants by the injured persons. Govinda Menon, J: 1A. I agree, but wish to add a few words. The learned Sessions Judge definitely finds that there was an unlawful assembly, the common object of which was to murder Parameswaran Nair and Narayanan Nair. It is also found that the appellants were members of that assembly. When there is this clear finding, all things done in prosecution of the common object of that assembly are chargeable against every member thereof. This position is well settled and has not been challenged by the learned defence counsel also. If the finding of the learned Sessions Judge is correct then he was in error in not finding all the accused guilty under S.302 by the application of S.149 I.P.C. 2A. Now the question is whether on the evidence adduced in this case it could safely be found that the common object of the assembly was to murder or that murder was likely to be committed. Now the question is whether on the evidence adduced in this case it could safely be found that the common object of the assembly was to murder or that murder was likely to be committed. The common object has to be determined with reference to the evidence in each particular case. The nature of the weapons used or the injury inflicted may be a guide in deciding the common object, but it is not decisive. No hard and fast rule can be laid down and each case has to be decided on the particular facts and circumstances of that case. On a careful consideration of the evidence and the circumstances of this case, I also agree that the common object of the assembly could have been only to administer a severe chastisement to Pw.1 and his party and it could not be held with safety that the members of the assembly could have known that murder was likely to be committed. That being so, the offence would be only one for causing grievous hurt under S.326, I.P.C. read with S.149 I.P.C. Hence though not for the reasons stated by the learned Sessions Judge, the conviction is correct and calls for no interference.