Judgment :- 1. This appeal is by accused 1, 2,4 and 5 in Sessions Case No. 58 of 1963 on the file of the Sessions Court, Tellicherry. The third accused who was tried along with them was acquitted. 2. Shortly stated the prosecution case is as follows: On 29 51963 at about 9 A.. M. pw. 2 Excise Inspector and his party went on patrol duty to detect prohibition offences and at about 10.30 A. M. while they were in the tea shop of one Nanu they saw the first accused rowing a small boat along the Andaloor river. Suspecting trouble, accused 1 got out from the boat at a place about 50 yards from the tea shop and ran away towards the east. pw. 2 and party got the boat to the shore and searched it when they found two drums and one tin containing about sixteen gallons of fermented and fresh toddy. A mahazar was prepared and taking two bottles full of fermented toddy for sample, they destroyed the rest. pw. 2 then directed pw.1 Kannan the Excise Guard to take the sample bottles and other articles seized to Chekkupalam in the boat and he and the other members of the party followed walking along the Varamba. Before the boat neared the bridge the accused ran up and dragged pw.1 out of the boat and accused 1 and 2 beat him with sticks while accused 3 to 5 threw the articles into the water. The Inspector & party took the injured guard pw.1 to Chekkupalam and then in a car removed him to the hospital at Tellicherry. The matter was reported to the Police who registered a case and began the investigation. On 3151963 the third accused was arrested and all the rest surrendered before Court. 3. All the accused denied their presence at the place. Accused 1 had also a contention that be is not Velikkoth Vijayan son of Kunhikannan (accused 1 in the charge), but Poozhiyil Perumbada Vijayan son of Balan. He examined the Manager of a Senior Basic School who proved Ext. D 1 admission register containing an entry regarding one Poozhiyil Perumbada Vijayan son of Balan. The third accused had a case that he might have been mistaken for his twin brother Kittan. 4. He examined the Manager of a Senior Basic School who proved Ext. D 1 admission register containing an entry regarding one Poozhiyil Perumbada Vijayan son of Balan. The third accused had a case that he might have been mistaken for his twin brother Kittan. 4. The Court framed charges against all the five accused under S.147 I. P. C. In addition accused 1 and 2 were charged under S.148 and 333 and accused 3 to 5 under S.333 read with S.149. As the identity of accused 3 has not been proved conclusively the court gave him the benefit of doubt and acquitted him of all the charges. All the same the court entered a conviction against the remaining four under S.147 for the reason that the evidence disclosed that five persons took part in the occurrence although the evidence did not warrant a definite finding that the fifth person was the third accused. While convicting accused 1 under S.148 and 333 I. P. C. accused 2 was acquitted of the charge under S.333 as the evidence of his having beaten pw.1 was not satisfactory and accused 4 and 5 were also acquitted of the charge under S.333 read with S.149 as the common object that could be found was only to destroy the evidence regarding the possession of the contraband. The State has not appealed either against the acquittal of accused 3, or the acquittal of accused 2, 4 and 5 of the charge under S.333 read with S.149 I. P. C. 5. The only points urged before me in this appeal are:-(i) that the conviction of accused 1 is not sustainable since there is no conclusive proof of his identity and (ii) that the conviction of accused 1 under S.148 as well as of accused 2,4 & 5 under S.147 is incompetent since one out of the five accused who were charged and tried with having formed the assembly was acquitted. 6. We shall first consider the case against the first accused. pw.1 the injured guard describes how he sustained the injuries. He sustained four injuries as noted by pw. 6. We shall first consider the case against the first accused. pw.1 the injured guard describes how he sustained the injuries. He sustained four injuries as noted by pw. 3 in the wound certificate:-(1) Swelling of the lower part of the left leg and ankle with severe tenderness around the ankle, (2) Contusion 1/2 x 1/2 at the root of the left thumb at the dorsal aspect, (3) Fracture of the left medial malleolus, (4) Crack fracture of the left lateral malleolus. He was in the hospital as an inpatient for 32 days because of the fracture. He swears how he accompanied by pws. 2,4 and 5 reached the Andaloor ferry when they saw accused 1 rowing a boat with contraband articles and how the first accused left the boat and ran away to the east when pw. 2 took the boat to the shore and seized the fermented and fresh toddy in two drums and one tin. After preparing a mahazar he was directed by pw. 2 to take the seized articles to Chekkupalam. He goes on to describe how at a distance of one and a half furlongs from Chekkupalam accused 1 and 2 attacked him with sticks and how accused 3, 4 and 5 threw the articles into water from the boat. pw. 2 Selvaraj is the Excise Inspector who describes the incident in the same terms as pw. 1. pws. 4 and 5 the Preventive Officers also corroborate the evidence of pws.1 & 2 & give the same version of the incident. 7. That pws. 1,2,4 and 5 are officers who are new arrivals to the place and therefore their identification of the accused must be defective is the main objection of the defence. I went through the evidence carefully and I am persuaded to agree with the learned Sessions Judge in the assessment of the evidence of these members of the Excise party. pw.1 had no doubt come to the place only a fortnight or so prior to the occurrence, but he swears that within three or four days of his arrival he had occasion to know the accused. He is the injured man himself and must have had a good view of the first accused who broke his bones by beating him with a stick at -close quarters in broad day-light. pw. He is the injured man himself and must have had a good view of the first accused who broke his bones by beating him with a stick at -close quarters in broad day-light. pw. 2 who was there from 6 31963 had occasion to visit Andaloor Desom four or five times and to see all the accused. pw. 4 who had come to the place in April 1963 swears that he knew the first accused three weeks prior to the incident and had also met the other accused. pw. 6 had occasion to know the first accused for about six months and had also seen accused 2, 4 and 5 in his company. There is also a good reason for the Excise Officers and staff to get acquainted with the accused within the short period. The defence has by cross-examination brought out the fact that soon after the arrival of the new Excise Officers at the place they were informed that these accused were some of the principal suspects in prohibition offences within their jurisdiction and hence they tried to identify them & get acquainted with them with the help of the men of the locality and were having an eye on them. The first accused has been correctly identified by the victim of the assault as also by the other officers and there is no scope for any doubt about his identity. His case that he is not Velikkoth Vijayan, but Poozhiyil Perumbada Vijayan is also false and the evidence of dw.1 and the entries in the admission register cannot be of any help to him. The first accused in the charge is described as Velikkoth Vijayan son of Kunhikannan and the first accused of his own free will and under legal advice surrendered in court on 4 61963 without mentioning a word about the mistake in the description given in the charge. Even in the committal court he said not a word about his father not being Kunhikannan or that he is not Velikkoth Vijayan. It is still more surprising to see that accused 1 has signed his statement in the Magistrate's Court as Maniyath Vijayan and the Sessions Court statement as V. Vijayan, 'V' evidently standing for Velikoth. Any way it is significant he had not signed his name anywhere as Poozhiyil Perumbada Vijayan. It is still more surprising to see that accused 1 has signed his statement in the Magistrate's Court as Maniyath Vijayan and the Sessions Court statement as V. Vijayan, 'V' evidently standing for Velikoth. Any way it is significant he had not signed his name anywhere as Poozhiyil Perumbada Vijayan. The entry in the admission register of a private school even if it is taken into account is of no help without the evidence of the father who put the boy into the school and signed the application and gave the details recorded in the register. The idea of taking advantage of the entry in the register and building up a case on the strength of it evidently struck the defence only in the Sessions Court. The conviction of the first accused has only to be confirmed. 8. As for the second objection the decision of the Supreme Court in R. B. Singh v. State of Bihar (1963) I S. C. W. R.743 provides a complete answer. Their Lordships after reviewing the earlier decisions held that: "....whether the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and do others, and there is no question of any participation by other persons not identified or identifiable it is not open to the Court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof." Their Lordships further made it clear that: ".... It is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court, (b) or that the first information report and the evidence show such to be the case eventhough the charge does not state so; (c) or that though, the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided, in cases (b) and (c), no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence." In this case, the first information contains the names of five accused as the persons who took part in the incident, but it was stated that some four or five who stood on the banks of the river cried out "kill him". However the police charge-sheet specifies these five accused alone as having been members of the unlawful assembly. In the charge framed by the Sessions Court we find a statement to the effect that some unnamed persons were also members of the unlawful assembly. But there is absolutely nothing in the evidence to justify the charge and there is also no finding to that effect. So in this case where the evidence is that the unlawful assembly consisted of the five accused persons and no others, when one of them is acquitted, it is not open to the Court to find the remaining four guilty of the charge of unlawful assembly. 9. The learned State Prosecutor raised a further contention relying upon an observation made by the Supreme Court in Sunder Singh v. State of Punjab-AIR. 9. The learned State Prosecutor raised a further contention relying upon an observation made by the Supreme Court in Sunder Singh v. State of Punjab-AIR. 1962 Supreme Court 1211, while considering the powers of the court of appeal under S.423 (1) (a) of the Criminal Procedure Code, and argued that there is no legal bar for this Court to deal indirectly or incidentally with the case against the acquitted accused even if the State has not challenged the correctness of the order of acquittal by an appeal. The question whether such a view is not inconsistent with the principle in B. v. Plummer's case (1902) 2 K. B. 339 seems to have been raised in R. B. Singh's case (1963) 1 SCWR. 743 though their Lordships thought it unnecessary to express any opinion on the matter. In this case it is unnecessary to go into that question at all as even after going into the evidence it is not possible to differ from the finding of the learned judge that the prosecution has failed to prove that accused 3 had taken part in the incident. Since the finding about the unlawful assembly is not sustainable, accused 1's conviction under S.148 I. P. C. has to be vacated. 10. In the result, while confirming the conviction and sentence passed against accused 1 under S.333 I. P. C. the conviction of accused 2, 4 and 5 is set aside. Their bail bonds are cancelled.