Judgment :- B.M. Thulasidas, J. Accused 1 to 3 in S.C. No. 106 of 1991 of the Additional Sessions Court, Palakkad are the appellants. They and two others were tried for offences punishable under Ss.143, 147, 148, 324, 307 and 302 r/w.149IPC on the allegation that they had formed themselves unlawful assembly and in prosecution of its common object as also on account of previous enemity, the first accused stabbed one Neelam to death and attempted to commit the murder of PWs. 1, 2 and 5, that the second accused inflicted injuries upon PWs. 3, 6 and 7 and third accused upon PW. 4. The incident happened on7.11.1990 at 6.30p.m. at Kothamangalam near the shop of Velayudhan Ezhuthassan, within the jurisdiction of Coyalmannam Police Station. The first informant was PW1 on whose statement, marked as Ext. P1, given at 11.15 p.m. the same night from the male ward of the Government Hospital, Palakkad, PW 24 registered the FIR in Crime No. 239 of 1990 of Coyalmannam Police Station. PW 25, Circle Inspector of Police investigated the case and laid the final report. 2. The accused pleaded not guilty to the charge, whereupon prosecution examined PWs 1 to 25, marked Exts. P1 to P29 and MOs.1 to 20. When they were questioned under S.313 Cr. P.C. they denied that the witnesses spoke the truth and said that the incident had not happened as alleged. Al said that he was taken by A4 and A5 to meet PW7 with whom they had a problem and while it was being discussed, PW 7 held him and he was cut by PWs 1 and 2. Suddenly the lights went off. With about 10-25 people there, hell was let loose and he heard later that injuries were sustained by the deceased. He maintained his innocence. A2 and A3 also generally denied the incident and their involvement in it and said that they were innocent. A3 further stated that he was taken to the place of incident by A4 and A5 and while A5 and PW 7 were talking he asked them to wait till the owner of the tractor arrived when PW7 retorted that he should not feel so big and then he and PWs 1 to 3 started a quarrel during which PWs 1 and 2 cut him after he was held by PW 7. He fell down when suddenly lights went off and there was total commotion. No witness was examined in defence, but the case diary statements of PWs.1 to 6, 8 and 9 were marked as Exts. Dl to 9 in defence. The remand report relating to A2 to 4 dt. 9.11.1990 was marked as Ext. Cl. 3. The court below considered the evidence and circumstances and held that the prosecution failed to show that the accused were members of an unlawful assembly and accordingly found against charge under S.143,147,148 and 149 IPC. No case against A4 and 5 was also held to have been made out and they were acquitted. The first accused was found guilty under Ss.302, 307 and 324 IPC and A2 and 3 under S.324, convicted and sentenced on the different counts by judgment dated 3.9.1994, which is under challenge in this appeal. 4. We heard counsel for the appellants and the Public Prosecutor. 5. Neelam as also PWs 1 to 7 had sustained injuries in the incident that'happened at 6.30 p.m. on 7.11.1990 from the road at Kothamangalam. He died at the spot and his dead body was taken to the Taluk Headquarters Hospital Alathur, where PW 20 conducted the autopsy. Ext. P13 is his certificate, where details of the ante mortem injuries he had sustained had been set out. He had an oblique penetrating wound directed downwards and medially on the right hypocorism through which loops of small intestine had come out. There were four other incised wounds 30 cros. apart on that portion of intestine lying out side the abdominal cavity, 1.5 cm. long. The doctor opined that death was following hemorrhage and shock due to Abdominal aorta, mesentery vessels and small intestine, which he said, could have been caused with a weapon like MO2, according to the prosecution used by the first accused. His death indeed was homicidal. PW. 22, the Civil Surgeon, District Hospital, Palghat examined PW 1 at 7.20 p.m. on 7.11.199o'and found him to have sustained: 1. Incised wound left chest anterior aspect. Same above the nipple, 2.5 x 2cm suspected penetrating injury. 2 Incised wound left forearm posterior 5 x 1 x 1 cm. 3.. Incised wound right side of abdomen Ix Ix 1 cm." Ext. P16 is the wound certificate. Incised wound left chest anterior aspect. Same above the nipple, 2.5 x 2cm suspected penetrating injury. 2 Incised wound left forearm posterior 5 x 1 x 1 cm. 3.. Incised wound right side of abdomen Ix Ix 1 cm." Ext. P16 is the wound certificate. He said that injury No.1 is grievous and others were simple and could have been caused with a weapon like MO2. He also examined PW. 2, and found him to have sustained: 1. Incised wound over left scapula 7 cm. midline, 2.5 x 1 x suspected penetrating. 2 Incised wound back of right shoulder 2.6x2 suspected penetrating. The wound certificate is Ext.P17. PW3 was also examined by him and he too had: 1. Incised wound right upper arm 5 x 2 x 2 cm. 2 Incised wound right chest anterior 2xlx1 suspected penetrating. 3. Incised wound scalp, vertex 2 x 2 x 1/2 cm." Ext. P18 is the wound certificate. PW4 had also been examined and he too had: "Incised wound left shoulder 2.5 x 1 cm. It is a simple injury" (vide Ext. P10) He said that it would be caused with MO. 1. PW 5 was also examined by the same doctor and he found him to have sustained "Incised wound left maxilla 5 x 2 cm. suspected penetrating" (vide Ext. P20) that he said could have been caused with MO2. PW6 also had been examined by the same doctor and he had an incised wound on the left knee, which was a simple injury. The wound certificate is Ext. P21. PW 23 had examined PW 7 and had noted the injuries in Ext. P23. He had a diffused confusion on the back of the bye leg at the upper part. He had alleged that a soda bottle was thrown at him. The injury he said was simple. The same doctor had examined the first accused, who had: " Incised wound left side frontal area 4 x 2 cm. Incised wound right side frontal area 3 x 2 cm." He had alleged that he was assaulted with a knife and soda bottle and the injuries were simple. PW3 had been referred to the Medical College Hospital, Coimbatore where he was examined by PW. 21, who proved Ext. P14 discharge certificate. He said that the injuries did not involve vital organs and were simple. 6. PW3 had been referred to the Medical College Hospital, Coimbatore where he was examined by PW. 21, who proved Ext. P14 discharge certificate. He said that the injuries did not involve vital organs and were simple. 6. The injured, who are PWs 1 to 7 and two independent witnesses, PWs. 8 and 9 had spoken to the incident and their evidence had been considered in detail by the Court below. It all began over a small issue between Pw 7 on the one hand and A4 and 5, who are father and son, on the other. Allegedly the tractor that was brought by PW7 was taken through the paddy flat of A4 and 5 that caused damage to the paddy seedlings. They and the other accused together went to question PW 7 who said that the question had already been raised, discussed and settled to their satisfaction. He also told them that the amount claimed as compensation could even be adjusted against the hire charges due to him for plaguing the paddy flat of the brother of A4. This seemed to have satisfied them and they nodded their heads in agreement. But then Al and 2 allegedly were dissatisfied with this and to have said that having brought them they would not let the issue be closed that way. Stating so, the first accused held PW 7 by his shirt collar. Immediately PWs. 2,4 and 5 went near PW 7 and PWS asked why there should be a quarrel over a small matter. At this, the second accused took out MO 2 and stabbed PW 2 on his right chest, hand and head with it asking what right he had to say as he did. Immediately the deceased rushed to PW3 from the shop verandah of Velayudhan Ezhuthassan, when the first accused sprang at him and stabbed on his abdomen with MO 1. As a result of the stab injury, his intestines came out through the wound and covering the same with his hands, he fell down. Seeing this, PW 2 ran towards the deceased and the first accused also stabbed him. PW1 rushed towards his father, PW 2. PW 5 was also by his side. The first accused then stabbed him and PW 5 too. He ran towards PW- 7, but he ran away towards east. Seeing this, PW 2 ran towards the deceased and the first accused also stabbed him. PW1 rushed towards his father, PW 2. PW 5 was also by his side. The first accused then stabbed him and PW 5 too. He ran towards PW- 7, but he ran away towards east. The second accused collected some soda bottles from the shop of Velayudhan Ezhuthassan and flung them at PW-7 and he sustained injuries on his leg. The third accused collected MO-2 and stabbed PW 4 on his shoulder. The second accused threw bottles into the shop of PW 7 and some of the splinters struck PW 6, who was going along the road and sustained injuries. Seeing that more people were running in to the place and accused ran away with the weapons. Neelan died at the spot. He as also PW2, PW 3,4 and 6 were taken to the Government Hospital, Palakkad in Radhakrishnan's car. Since the injuries sustained by PWs. 2 and 3 were serious they were referred to the Medical College Hospital, Coimbatore. He and the other injured were admitted as inpatients at the Government Hospital. It was also said by the witness (but not stated in Ext. P1) that he and the other injured, including the deceased, belonged to the same caste and the first accused and others to another, that there was a problem between them over the conduct of a festival in the local temple and it was believed by the accused that they did not get the co-operation they expected from the other side and were resentful. The issue relating to the alleged damage to the paddy seedlings was in itself not so serious but provided the flash-point. Actually, the accused came duly prepared and determined for an open confrontation. The incident was their making. No-one in his group gave any provocation for the violent and murderous acts of the assailants, who had taken full advantage of the helpless situation of the victims, some of whom had just a providential escape from certain death. He identified MOs.1 and 2 as the weapons of offence. In Ext. P1 he had given a fairly detailed account of the incident, its immediate background and other relevant aspects and deposed to the same in corroboration, that left no room for doubt as to his veracity, the minor discrepancies notwithstanding. 7. He identified MOs.1 and 2 as the weapons of offence. In Ext. P1 he had given a fairly detailed account of the incident, its immediate background and other relevant aspects and deposed to the same in corroboration, that left no room for doubt as to his veracity, the minor discrepancies notwithstanding. 7. PW2 an injured, had also testified to the incident. He said he was stabbed by the first accused on his left back and hand and had seen him stabbing deceased Neelan as also PWs. i and 5. The second accused had thrown a soda bottle at PW 7 and some splinters hit the leg of PW 6. He also said he had seen the third accused stabbing PW. 4. He is an old man and naturally there were some omissions and improvements in his version, that did not however go to discredit him. PW 3 had also deposed in terms of the evidence of PWs 1 and 2. He said as to how the trouble started and also said that the second accused inflicted injuries on him and that the first accused stabbed Neelan, PWs. 1,2 and 5, that the second accused had flung a soda-bottle at PW 7 in which PW 6 sustained injuries. He had seen the third accused inflicting injuries upon PW 4. There was no reason to disbelieve his version, which had a natural tone. The evidence of PW 4 that he was stabbed by the third accused and also said about the overt acts of accused 1 and 2. There were also some inconsistencies in his version. But substantially he corroborated the evidence of PWs 1 to 3. PW 5 is the brother of PW 7 and according to him the first accused stabbed Neelan and when PWs.1 and 2 went near him he stabbed them and thereafter he stabbed him also on his shoulder. He had also spoken about the infliction of injuries on PW 4 and the assault on PW 7 in which injuries were sustained by PW 6, who also said that it was the splinter of the soda-bottle flung by the second accused that caused injuries upon his leg. He also stated that he had seen the first accused running after PW 7 with a sword. The third accused was alleged to have collected the sword from the second accused and stabbed PW 4 on his shoulder. He also stated that he had seen the first accused running after PW 7 with a sword. The third accused was alleged to have collected the sword from the second accused and stabbed PW 4 on his shoulder. PW 7 said that the accused came to his shop and asked about the damage to the crop of the fourth accused; that was the starting point of the trouble. He narrated the subsequent incident in detail in corroboration of the version of the other injured. The independent witnesses, PWs 8 and 9 also said what had happened and their evidence supported that of the injured. Being persons of that locality, they were familiar with the injured and the accused. They had explained their presence at the place that evening, which was not unnatural. At any rate, they had no reason to speak falsehood against the accused. The medical evidence we have considered was also substantially in accordance with the prosecution version of the incident. 8. The weapons of offence, MOS 1 and 2, were allegedly seized as per the statements of Al and 2, marked as Exts. P28 and P 27 under two mahazar, marked as Exts. P10 and P11, which were attested by PWs 16 and 18. This aspect has been discussed in detail in paragraph 23 of the judgment and we agree with the correctness of the observations made. There was no doubt, those weapons were seized from places where they had been concealed near the compound of Velunni and Naniyamma. As already said, they had been duly identified and the medical evidence also showed that they could have caused the injuries as found. They are also stained with human blood as the Chemical Examiner found. The relevant details of the scene of incident, where telltale marks were found, had been set out in Ext. P3 scene mahazar. Indeed about the place of incident itself, there was not much of the controversy. 9. As stated already, the prosecution case was that the appellants and the two accused who were acquitted were members of an unlawful assembly and in furtherance of its common object, the first accused stabbed Neelan to death and in an attempt to commit murder, injuries were inflicted upon PWs. 1,2, and 5, that the second accused caused injuries upon PWs. 6 and 7 and the third accused on PW 4. 1,2, and 5, that the second accused caused injuries upon PWs. 6 and 7 and the third accused on PW 4. The Court below found that there was no unlawful assembly as alleged and accordingly offences under Ss.143,147,148 and 149 were held unsustainable. Al was found guilty under S.302 IPC for the murder of Neelan, under S.307 for attempting to murder PW 2 and under S.324 for voluntarily causing injuries upon PW 1 and 5. The second accused was found guilty under S.324 IPC for causing injuries upon PWs 3 6 and 7 and the third accused also on the same count for causing hurt to PW4. A4 and 5 had been acquitted finding that they were not members of unlawful assembly, which finding we are unable to endorse in the light of the overwhelming evidence and circumstance in the case. That they were present along with Al to A3 at the time of the incident had been made out and in fact was not disputed. Indeed the incident itself had its origin in the dispute between them and PW 7, in which Al to 3 got themselves involved. Surely it was in their power to prevent the incident that they did not obviously for reasons best known to them. Everything that was done by Al to 3 seems to have had their tacit approval manifested from their conduct during and after the incident. That they along with Al to 3 did not indulge in acts of violence suggested nothing more than a passive behaviour and resignation to the inexorable course of events, that they had set in motion. It was only because overrates were not proved against them that the court below found against their involvement in the unlawful assembly. It is unnecessary that such member of the unlawful assembly must be proved to have committed overrates in prosecution of its common object. That there was an unlawful assembly in our view, could not be doubted and in fact had been made out beyond doubt. Its members were not merely the appellants but A4 and 5, who must be held to have shared its common object of causing hurt to those targeted. It might be that one of the objects of the assembly was to commit the murder of Neelan, who came to be fatally stabbed by Al as he interceded to prevent the assault upon PW 3. It might be that one of the objects of the assembly was to commit the murder of Neelan, who came to be fatally stabbed by Al as he interceded to prevent the assault upon PW 3. In as much as the acquittal of A 4 and 5 had not been challenged, nothing could be done now in this appeal, though we are convinced that their acquittal was not legal. In our view, the murder of Neelan was not one of the objects of the unlawful assembly and that Al alone is guilty of the said offence. We maintain his conviction and sentence under S.302 IPC. B ut then the offence under S.307 IPC for attempting the murder of PW2 is unsustainable having regard to the circumstances and the injuries he had sustained. We find him and A2 and 3 guilty under S.324 r/w 34 IPC for causing injuries upon PWs.1 to 7, convict and maintain the sentence as awarded, which shall run concurrently in the case of the first accused. The appeal is disposed of as above.