Judgment :- Koshy, J. All these appeals are filed form the judgment of the Sessions Court, Kollam in Sessions Case No.564 of 1999. Altogether there were ten accused in the above case and they were charged for the offences punishable under sections 114, 143,147,148,120 (B) and 302 a read with section 149 of the Indian Penal Code. A3, A8, A9 and A10 were acquitted and sentenced by the Sessions Court as follows: “A1, A2, A5, A6 and A7 to undergo imprisonment for Life u/s 302 IPC and to pay a fine of Rs.20,000/- each i/d the accused persons are ordered to undergo R.I. for a period of six months, A1, A2, A5 & A7 are sentenced to undergo R.I. for a period of one year each for offence u/s 145 IPC. A1, A2 & A4 to undergo R.I. for a period of 5 Years each for offence u/s 120 (B) IPC. No separate sentence awarded for offence u/s 143 IPC. The sentence awarded against A1, A2, A5, A6 & A7 shall run concurrently. The fine if paid by the accused persons A1, A2, A5, A6 & A7, Rs.50,000/- be paid to the legal heirs of the deceased Kochukuttan as compensation u/s 357 (1) (c) Criminal Procedure Code Set off is allowed.” 2. The sentence awarded against A1, A2, A5, A6 & A7 shall run concurrently. The fine if paid by the accused persons A1, A2, A5, A6 & A7, Rs.50,000/- be paid to the legal heirs of the deceased Kochukuttan as compensation u/s 357 (1) (c) Criminal Procedure Code Set off is allowed.” 2. According to the prosecution, on 19-5-1997, at 9-00 p.m., the deceased Kochukuttan and CW11 jointly assaulted A1 and A2 at a place at Chaithram Restaurant run by A2 and, because of that animosity, A1 to A4 assembled at Chaithram Restaurant at Veliyam junction on 20-6-1997 at 7-45 p.m. and the accused persons conspired together with the intention to commit murder of Kochukuttan and that the accused persons 1 to 3 and 5 to 10 formed an unlawful assembly on 24-6-1997 and, in furtherance of their common object, armed with deadly weapons, such as swords, iron rods, chopper, knife, stick etc., the accused persons came to Chaithram Restaurant in a jeep KL-2B/9938 driven by A4 owned by CW16 and alighted at a place in front of Chaithram Restaurant and A1 to A3 in front and A5 to A10 behind them came to a place in front of Harisree Bakers on the eastern side of the Kottarakkara-Oyoor Public road at Veliym junction at 7-25 p.m. and while deceased was talking to CW1 in front of the verandah of Harisree Bakers which was closed at that time, A3 called Kochukuttan “come here” and then A1, with the sword kept concealed on his back, struck a blow against the head of Kochukuttan inflicting injury. Then A2 uttered “cut this man” and with the sword he was having out against the chest on the left side inflicting injuries and Kochukuttan fell down to the road on the side of the verandah of Harisree Bakers. Then A5, with the iron rod, beat upon the right hand and A6, with the chopper, cut on the left hand below elbow inflicting injuries. A7 with the iron rod best on the right shoulder, AB with the sword cut against the left hand inside the palm and left cheek. Then A5, with the iron rod, beat upon the right hand and A6, with the chopper, cut on the left hand below elbow inflicting injuries. A7 with the iron rod best on the right shoulder, AB with the sword cut against the left hand inside the palm and left cheek. A9 with the knife stabbed on the back on the left side and A10 with the stick beat on the right leg below knee and the accused persons with the weapons repeatedly inflicted injuries at several parts on the body of Kochukuttan and, thereafter, the accused persons left the place in the same jeep and though Kochukuttan was rushed to the hospital in a car driven by CW14 and thereafter in the jeep driven by CW15 to the district Hospital, Kollam, Kochuktutan succumbed to the injuries at about 8-10 p.m. on 24-6-1997. 3. PWs 1,2,4 and 5 to 10 were cited as eye witnesses. Even though PWs 1,2,4 and 5 deposed according to the prosecution case, PWs 6 to 10 were declared hostile as they did not fully support the prosecution story. PW3 was examined mainly to prove the criminal conspiracy said to have been placed at Hotel Chaithram owned by A2. 4. Identity of the deceased, place of occurrence etc, are not disputed in this case. Postmortem of the dead body of Kochukuttan was conducted by PW16 at 11-40 a.m. on 25-6-1997. Ext.P17 is the postmortem certificate. Ext.P17 postmortem certificate shows that there are 20 antemortem injuries. PW16 Doctor also opined that the death was due to the injuries sustained to the chest and left palm, that is, injuries No.14 and 20, and death can also be due to the cumulative effect of all other injuries. Antemortem injuries shown as per Ext.P7 postmortem certificate would show that several injuries were inflicted on the accused and he was brutally murdered by a group of persons by using several weapons. Medical evidence support the evidence of eye witnesses, PWs 1,2,4 and 5. 5. PW1 is the brother-in-law of the deceased Kochukuttan. The incident happened when the deceased and PW1 were talking in front of Harisree Bakery at Veliyam junction. Evidence of PW1 cannot be discarded merely because he is the brother-in-law of the deceased. He gave Ext.P1 F1 statement. In the FI statement, he had named A1 and A2. 5. PW1 is the brother-in-law of the deceased Kochukuttan. The incident happened when the deceased and PW1 were talking in front of Harisree Bakery at Veliyam junction. Evidence of PW1 cannot be discarded merely because he is the brother-in-law of the deceased. He gave Ext.P1 F1 statement. In the FI statement, he had named A1 and A2. He also stated that there were 5 others also whom he can personally identify. FI statement was given without much delay and there was no time gap in making any exaggerations in the FI statement. He described before court the role of each accused in the commission of the crime. When a person is attacked by a group consisting about seven or more persons, it is difficult to remember, with exactitude, the injuries inflicted by each person or the arms carried by each of them. However, the court is bound to sift the evidence and find out the truth after eliminating the exaggerations. Evidence of PW1 clearly establish that a group consisting of A1 and A2 came and attacked the deceased in view of the previous enmity. PW2 fully support the evidence of PW. He was also an eye witness (paragraph 11). Evidence of PWs 4 and 5, other eye witnesses, corroborates the evidence of PWs 1 and 2. Motive for the crime is also clearly proved. A case was already registered against the deceased and another for attacking A2 as can be seen from Ext.P40. 6. The main question is regarding identification of other accused other than A1 and A2. According to the learned Public Prosecutor, PW1 as well as PW2 identified all the accused in court. The accused were identified only in general terms in court. But, in Ext.P1, FI statement, none of the names of the accused persons, other than A1 A2, were mentioned. Evidence of PWs 1, 2 and other eye witnesses show that even though they have seen some of the witnesses at the junction earlier, they have no previous acquaintance with them. In the statement under section 161 of Criminal Procedure Code they did not give identification marks of the accused. They did not know their names and identifying such accused persons after five years of the incident is very difficult. In this case, there is another great infirmity also. There was no identification parade conducted. As held by the Apex Court. In the statement under section 161 of Criminal Procedure Code they did not give identification marks of the accused. They did not know their names and identifying such accused persons after five years of the incident is very difficult. In this case, there is another great infirmity also. There was no identification parade conducted. As held by the Apex Court. In the absence of test identification parade, the evidence of eye witnesses identifying the accused for the first time during trial is not always inadmissible. However, the credence of such witness will depend on facts and circumstances of each case. (See: Ramanbhai Naranbhai Patel and others v. State of Gujarat – 1999 AIR SCW 4770). It is true that if the witnesses are known earlier, lack of identification parade is not a serious defect. But, in this case, PW1, in Ext.P1 FI statement itself, has stated that the other accused persons were identifiable, even though their names were not known. But, their descriptions were not given in the first information statement or in the statement under section 161 Criminal Procedure Code of the eye witnesses. In such circumstances, identification of the accused by the eye witnesses (other than A1 and A2 who were not known to them earlier) in court after several years of the occurrence is difficult to be accepted as held by the Apex Court in State of Delhi v. V.C.Shukla (AIR 1980 SC 1382). Evidence of PW1 as well as of the other witnesses would show that police had shown the accused to them during the course of investigation. Even the names of the accused were given to them by the police before trial when they were shown to them. Therefore, during investigation, when the police introduced these accused and shown those accused with their respective names, an identification in the court is only a farce as police had already shown the accused to the witnesses and disclosed their names. A consideration of evidence of eye witnesses show that they have identified only A1 and A2 clearly and identifications others is doubtful. It is true that with regard to A5 to A9, there were recovery of alleged weapons used in the commission of the crime. But, the alleged recovery of weapons was months after the date of incident and the recovery witnesses were not examined. It is true that with regard to A5 to A9, there were recovery of alleged weapons used in the commission of the crime. But, the alleged recovery of weapons was months after the date of incident and the recovery witnesses were not examined. It is true that examination of mahazar witnesses is always not necessary when the accused are identified otherwise by the court and recovery can be used as a corroborative evidence even if recovery is proved only by the investigating officer. In Mohd.Aslam v. State of Maharashtra (2002 SCC (cri)1024) relied on by the learned public prosecutor accused were identified by test identification parade. Even though it was stated that the mahazar witnesses were declared hostile, the recovery evidence was used as a corroborative evidence as there were eye witnesses to the incident and eye witnesses identified the witnesses. Facts of each case have to be looked into while understanding the ratio of the decision. In this case, apart from PWs 1 and 2 (names of other accused involved in the crime), other eye witnesses also did not say the names of the other accused except they stated about A1 and A2. Admittedly, A3 was also not having any weapon and his identification was also not proved. A3 and A4 were mainly identified by PW3 who is not an eye witness to the incident. PW3 is a chance witness who was examined to prove the conspiracy said to have been placed in Chaithram Restaurant. According to him, he was a stone worker and he came to have a cup of tea in the evening from that restaurant. There was no electric light in the Restaurant. But he heard A2 discussing regarding getting a person knowing to cut with A1, A3 etc. The jeep of A4 was seen parked in front of the restaurant. The restaurant belonged to A2, A3 was given the benefit of doubt and acquitted by the trial court disbelieving PW3. The trial court found that it is difficult to believe that the conspiracy took place in a public place like restaurant, that too, after lighting a gas light. The reasoning of the trial court in disbelieving PW3 cannot be stated to be perverse as that view is also possible. 7. A4 is the jeep driver. It is true that PW11 deposed that his jeep was being driven by A4. The reasoning of the trial court in disbelieving PW3 cannot be stated to be perverse as that view is also possible. 7. A4 is the jeep driver. It is true that PW11 deposed that his jeep was being driven by A4. PW5, in chief examination, has also stated about the arrival of the group in the jeep driven by A4. But, in cross-examination, he stated that he was not able to see who was driving the jeep and he has not seen the incident. It is true that PWs 6 to 9, though declared hostile, clearly stated that a jeep came from the southern side before the incident. But, they did not see the incident and they came out from their respective shops only after the commotion was over and they cannot say who committed the crime and who drove the jeep. Nobody also stated regarding the jeep number by which the accused came even though regular driver of the jeep No.KL-2B/93B is A4. The Sessions Court convicted A4 by using section 120(B). But, when PW3 is disbelieved, conspiracy said to have been taken place in the restaurant cannot be accepted. In fact, PW1, in Ext.P1 statement, stated that the conspiracy hatched somewhere else and not at the Chaithram Restaurant. So criminal conspiracy at the hotel with A1, A2, A3, A4 etc, were not proved. Since PW3 was disbelieved and A3 was acquitted, the same benefit ought to have been given to A4 also. 8. We have already found that there is clear evidence of identification of A1 and A2. A1 and A2 were known by almost all the eye witnesses and they have all stated about their role in the commission of the crime. Their evidence is believable. Counsel for Accused 1 and 2 argued that when nine or ten named persons were charge-sheeted as committing the crime by forming unlawful assembly and some accused persons are acquitted, there cannot be a conviction for others under section 302 read with section 149 IPC. It is true that before applying section 149, court must be satisfied that there were at least five persons sharing the common object. It is true that before applying section 149, court must be satisfied that there were at least five persons sharing the common object. If five or more persons form an unlawful assembly and share the common object and commit the crime in pursuance of that common object, conviction under section 302 read with section 149 of the IPC will be enough even though identity of some of them is in doubt, In Bharwad Mepa Dana v. State of Bombay ((1960) 2 SCR 172), the Apex Court was dealing with a case where 12 named persons were charged having formed in an unlawful assembly with a common object of committing murder of three persons and five of them convicted under section 302 read with section 149 of the IPC. The High Court acquitted one of the accused; but, maintained the conviction and sentence passed on other accused. That was challenged before the Supreme Court. The Supreme Court found that as per the evidence. Unlawful assembly consisting of 10 to 13 persons committed the crime. Merely because only four persons were identified, it cannot be said that there was no unlawful assembly and persons identified can be acquitted. 9. Them Apex Court recently in Ram Dular Rai and Others v. State of Bihar (AIR 2004 SC 1043) held that when presence of five or more persons with common object of doing a criminal act is established, mere non-identification of some of them will not affect applicability of section 149 of IPC. In that case, only four persons were identified. In Bikau Pandey and others v. Sate of Bihar (AIR 2004 SC 997) also, it was held that acquittal of some of the accused would not come to the rescue of others who are convicted on the basis of evidence on record establishing their presence or participation. 10. The Apex Court in Harshadeingh Pahelvansingh Thakore v. State of Gujarat ((1976) 4 SCC 640) held that when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man’s stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. When people play with knives and lives, the circumstances that one man’s stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. In Masalti v.State of UP (AIR 1965 SC 202), it was held by the Supreme Court that even if the evidence of the witnesses is not very specific or clear with regard to the part of the assailants when a group of assailants who are members of the unlawful assembly proceeded to commit the murder in pursuance of the common object of the unlawful assembly. It is often not possible for a witness to describe accurately the part played by each one of the assailants. Besides, if a crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In this case, several weapons were carried by members of the unlawful assembly and more than five persons were present in committing the crime and, therefore, the contention that the particular injury said to have been caused by A1 was not fatal injury is of no consequence. Apart from the motive, evidence of eye witnesses show that most of the members of the group who actually participated in the crime. Actual participation in murdering the deceased by A1 and A2 along with others is clear from the evidence of eye witnesses examined. We have no doubt that in the commission of the crime, there were more than five persons and, of course, some of them were not property identified because of flaw of investigation by not conducting test identification parade. Even though others are acquitted, conviction of the accused by using section 302 read with section 149 of the Indian Penal Code cannot be faulted. There is no dispute regarding the identification of A1 and A2 and their role were clearly deposed by the eye witnesses. However, no case is made out by the prosecution to interfere in the acquittal of accused Nos.3 and 8 to 10. Accused Nos.4,5,6 and 7 are also entitled to acquittal on the basis of benefit of doubt for lack of identification. Their conviction under section 120B is also set aside. In the result, Crl. However, no case is made out by the prosecution to interfere in the acquittal of accused Nos.3 and 8 to 10. Accused Nos.4,5,6 and 7 are also entitled to acquittal on the basis of benefit of doubt for lack of identification. Their conviction under section 120B is also set aside. In the result, Crl. Appeal No.432/2003 filed by Accused No.1 and Crl. Appeal No. 873/2003 filed by Accused No.2 are dismissed with regard to conviction and sentence under section 302 and 148 of the Indian Penal Code. But, their conviction and sentence under section 120 B is set aside. Crl. Appeal No.901/2003 filed by the State against acquittal of A3 and A8 to A10 is also dismissed. Crl. Appeal No.400/2003 filed by Accused No.4, Crl.Appeal No. 319/2003 filed by Accused No.5, Crl. Appeal No.1028/2003 filed by Accused No.6 and Crl.Appeal No.479 of 2003 filed by Accused No.7 are allowed. Their conviction and sentence are set aside and they are acquitted. They shall be released fro prison forthwith, if they are not required in any other case.