JUDGMENT P.S. Gopinathan, J. 1. The Sessions Judge, Thrissur in SC.No.564/2007 on his file convicted the appellants in these Criminal Appeals for offence under Section 143, 147, 148, 341 and 302 r/w. 149 IPC. The appellant in Crl.Appeal No.1412/2008, who is the first accused as per the charge sheet, was sentenced to be hanged by the neck till he is dead for offence under Sec.302 of the Indian Penal Code r/w. Sec.149 IPC. He is further sentenced to rigorous imprisonment for six months and a fine of Rs.10,000/- with usual default clause for offence under Sec.143 IPC. For offence under Sec.148 IPC he was sentenced to rigorous imprisonment for three years and a fine of Rs.50,000/- with default sentence. For offence under Sec.341 r/w. 149 IPC he is sentenced to simple imprisonment for one month. For offence under Sec.147 IPC, no separate sentence was awarded. Assailing the conviction and sentence appeal was preferred. 2. The sentence against the appellant in Crl.Appeal No.1412/2008 being death; it was referred to this Court under Sec.366 of the Code of Crl.Procedure for confirmation. Accordingly, Death Sentence Reference was registered. 3. The appellant in Crl.Appeal No.899/2010, who is the third accused in the charge sheet, was sentenced to rigorous imprisonment for life and a fine of rupees two lakhs for offence under Sec.302 r/w.149 IPC. For offence under Sec.143, 148 and 341 IPC, identical sentences as awarded to the other appellant were also awarded. No separate sentence was awarded for offence under Sec.147 IPC. 4. The appellant in Crl.Appeal No.899/2010 didn't care to prefer any appeal. When the Death Sentence Reference and the First Appeal came up for hearing, it was enquired from this Court as to whether he is preferring any appeal assailing the conviction and sentence. It is, thereafter, the other appeal was preferred with petition to condone delay. The delay was condoned and the appeal was taken to file. 5. Hereinafter, unless otherwise required, the parties are referred as appellants 1 and 2. Appellants 1 and 2 were prosecuted by the Circle Inspector of Police, Valappad Police Station, who was examined as Pw18, alleging offence under Sec.143, 147, 148, 341, 324, 326 and 302 r/w.102 IPC. 6. The prosecution case in brief is as follows: The appellants and other four accused persons were engaged in various criminal activities. Appellants 1 and 2 were prosecuted by the Circle Inspector of Police, Valappad Police Station, who was examined as Pw18, alleging offence under Sec.143, 147, 148, 341, 324, 326 and 302 r/w.102 IPC. 6. The prosecution case in brief is as follows: The appellants and other four accused persons were engaged in various criminal activities. Deceased Shine and others constituted an Action Committee and had made representation before the authorities against the appellants and other accused. Being got angry for constituting an Action Committee and representing to the authorities, the appellants and other accused were nursing a grudge against deceased Shine. On 27.3.2007 there was festival in Sree Bhadrakali Hanuman Swami Temple at Koorikuzhi desom, Kaippamangalam village. The temple belongs to Kozhiparambil family of which Pw1, Shine, the appellants and others are members. Deceased Shine was the oracle of the main deity of the temple. Pw3 is the oracle of Muthappan komaram. After certain rituals of the temple in connection with the festival, for the next ritual, Pw4 was putting kalom (drawing with different coloured organic powders). Deceased Shine, who was sitting near the Santhimadom outside the Chuttambalam, was dozing. Pw1 was standing outside the compound wall of the temple, which according to Pw1, is upto the chest level and was watching the putting of kalom. Pw2, a sweeper was also sitting at the verandah of the Santhimadom. Pw3 and 5 were assisting Pw4 in putting kalom. By about 11.40 pm. the appellants along with others who were mentioned in the charge sheet as accused Nos.2, 4, 5 and 6 formed themselves into an unlawful assembly. The second appellant and accused 2 and 4 were armed with swords, deadly weapons; and the 6th accused was armed with a chopper which is also a deadly weapon and being members of the unlawful assembly and armed with deadly weapons, in furtherance of their common object to commit murder of Shine, they rushed to the temple compound. No sooner they entered the compound, than the first appellant uttered, kill him. Seeing the assailants rushing with deadly weapons and shouting to kill, Shine ran inside the Chuttambalam. The appellants chased him. Shine fell down in front of the Hanuman temple. The second appellant, accused 2, 4 and 6 chopped Shine with swords and chopper (MOs.2 to 5). Some how or other, Shine got up and tried to enter the sanctum santorum. Seeing the assailants rushing with deadly weapons and shouting to kill, Shine ran inside the Chuttambalam. The appellants chased him. Shine fell down in front of the Hanuman temple. The second appellant, accused 2, 4 and 6 chopped Shine with swords and chopper (MOs.2 to 5). Some how or other, Shine got up and tried to enter the sanctum santorum. But he was pulled down by the first appellant and the 5th accused. The 5th accused thereupon took the udaval (the scythe of Devi) which was kept on a nearby stand and was armed. The 5th accused along with accused 2, 4 and 6 again inflicted cut injuries on Shine. Shine again got up and ran but, he fell down on the north- eastern corner of the temple. Thereupon the first appellant got the udaval from the 5th accused and he also with the other accused inflicted injuries. There was mass cry. The first appellant threw the udaval in the temple compound and all the assailants took to their heels. Pw5 and others soon brought an ambulance driven by Pw12 and the injured was rushed to the National Hospital at Kodungalloor where Pw9 was the Casualty Medical Officer. After examining the injured, Pw9 declared that the injured was brought dead at the hospital at 12.20 am. Pw9 sent Ext.P5 intimation to the local police station. One Sunil, who is cited as the first witness in the charge sheet and alleged to be the occurrence witness, rushed to Pw14, the Sub Inspector of Police, Mathilakam and narrated Ext.P8 First Information Statement at 1.00 am. Pw14 recorded Ext.P8 and registered a case as Crime No.214/2007 by Ext.P8(a) FIR for offence under Sec.143, 147, 148, 324, 302 and 149 IPC. Express message was conveyed to Pw16, the then Circle Inspector of Police, Valappad Police Station. He took over the investigation. In the meantime, Pw14 made arrangements for guarding the scene of occurrence. Pw16 proceeded to the hospital on the next day at 9.00 am. and prepared Ext.P1 inquest report wherein Pw5 is an attester. An underwear, two dothis and a mat which were marked as MOs.11, 12 and 13 were seized at the time of inquest. After sending the dead body for postmortem examination, Pw16 rushed to the spot of occurrence and prepared Ext.P2 scene mahazar at 1.30 pm. Pw6 is an attester to Ext.P2. An underwear, two dothis and a mat which were marked as MOs.11, 12 and 13 were seized at the time of inquest. After sending the dead body for postmortem examination, Pw16 rushed to the spot of occurrence and prepared Ext.P2 scene mahazar at 1.30 pm. Pw6 is an attester to Ext.P2. From the spot of occurrence, the udaval which was marked as MO1 was seized. Pw16 also seized a coconut, two mobile phones, blood stained soil, sample soil, a mat and a piece of red silk which were identified as MOs.8, 6, 7, 14, 15, 16 and 17 from the spot. In Ext.P8 there was mention about only five accused (A1 to A5). On 28.3.2007, Pw16 filed Exts.P9 and P10 reports for incorporating Sec.148 and 321 IPC and reporting the address of all the six accused persons. At 5.15 am. on 1.4.2007, the first appellant was arrested from Nattika beach for which Ext.P12 series arrest memo and inspection memo were prepared. The first appellant was produced before the Court along with the remand report after getting him identified by the witnesses. 7. On 7.4.2007 at 5.00 am. the second appellant was arrested from a shed at Munambam fishing harbour for which Exts.P.12 and 13 arrest memo and inspection memo were prepared. He interrogated the second appellant. Shirt and dothi worn by the second appellant, which were identified as MOs.9 and 10, were seized on the strength of Ext.P4 seizure mahazar wherein Pw7 is an attester. During the interrogation, the second appellant stated that he had buried the chopper and swords at Companykkadavu beach and in the event he was taken there, he would take it and hand over to Pw16. In pursuance to that statement, Pw16, accompanied by the second appellant went to the beach from where the second appellant digged out the chopper and three swords, which were identified as MOs.2 to 5 and handed over to Pw16. MOs.2 to 5 were seized after preparing Ext.P4 seizure mahazar wherein Pw8 is an attester. Ext.P4(a) is the statement of the second appellant leading to the recovery of MOs.2 to 5. The second appellant was produced before the Court along with a remand report. He then filed a forwarding note for sending material objects for chemical examination. While so, Pw16 was transferred and Pw17 was holding charge for a short period. Pw17 continued the investigation. Ext.P4(a) is the statement of the second appellant leading to the recovery of MOs.2 to 5. The second appellant was produced before the Court along with a remand report. He then filed a forwarding note for sending material objects for chemical examination. While so, Pw16 was transferred and Pw17 was holding charge for a short period. Pw17 continued the investigation. Pw17 was subsequently succeeded by Pw18 who completed the investigation and laid the charge sheet before the Judl.Magistrate of the First Class, Kodungalloor. 8. In the charge sheet (final report against the appellants) it is mentioned that the other four accused were absconding and that since they had to be got identified by the witnesses, final report was not filed against them. The learned Magistrate took cognizance as CP.No.52/2007. On finding that the offences alleged are triable by Court of Session, after completing the requisite procedures, by order dated 27.5.2007 the case was committed to the trial court. 9. The appellants were in custody ever since their apprehension. Production warrant was issued and they were produced before the trial court. They were defended by lawyers engaged by them. After hearing the prosecution and the appellants, charge for offence under Sec.143, 147, 148, 341, 342 and 302 r/w.149 IPC was framed. When read over and explained, the appellants pleaded not guilty. Hence they were sent for trial. On the side of the prosecution, Pws.1 to 18 were examined and Exts.P1 to P17 were marked. 18 materials objects were identified and marked as MOs.1 to 18. After closing the evidence for the prosecution, the appellants were questioned under Sec.313 of the Crl.PC. The first appellant denied the incriminating evidence and further stated that he was apprehended by Pw13 on 28.3.2007 and was brutally assaulted. Thereafter, the arrest was recorded on 1.4.2007 and that the case was foisted against him by the relatives of the accused in SC.No.649/2006 in which his brother was murdered and that the witnesses examined had given false statement out of that enmity. He had volunteered to undergo Narco Analysis test, Brain Mapping test and Polygraph test. He also requested to subject Pws.1, 2 and 5 to the above tests for which he had filed two separate petitions. Further he had stated that Pws.1, 2 and 5 had not at all witnessed the incident which led to the death of Shine. 10. He had volunteered to undergo Narco Analysis test, Brain Mapping test and Polygraph test. He also requested to subject Pws.1, 2 and 5 to the above tests for which he had filed two separate petitions. Further he had stated that Pws.1, 2 and 5 had not at all witnessed the incident which led to the death of Shine. 10. The second appellant, though denied the incriminating evidence, volunteered and narrated a story almost identical to the prosecution case except the involvement of the first appellant and the 4th accused. Upon hearing the prosecution and the accused and on convincing that the appellants are not liable to be acquitted under Sec.232 of the Crl.PC., the appellants were called upon to enter their defence. On behalf of the first appellant one witness was examined as Dw1 who claims to have witnessed the incident which led to the death of Shine. He had given evidence in support of the statement given by the second appellant under Sec.313 of the Crl.PC. The learned Sessions Judge, after considering the evidence on record and hearing either side, arrived at a conclusion of guilt. Accordingly, the appellants were convicted and sentenced as above. 11. The first informant who put the law in motion was reported abroad and hence his examination was dispensed with. The first information statement was marked in evidence through Pw14 who recorded the same. Pws.1, 2, 3, 4 and 5 are the witnesses relied upon by the prosecution to prove the occurrence. The fact that Shine had a homicidal death is not disputed. According to the first appellant, he was not involved in the occurrence that led to the death of Shine. As we mentioned earlier, though the occurrence witnesses were aggressively cross-examined by the second appellant and he denied the incriminating evidence given by Pws.2 to 5, he had given statement even admitting his involvement in the occurrence leading to the death of Shine. 12. Pw1 had deposed that he, who is a fisherman belongs to Kozhipparambil family which owns Sree Bhadrakali Hanuman Swami Temple and that deceased Shine was the oracle of the temple and that on 27.3.2007 the temple festival was going on and that inside the temple compound, Pw4 had been putting the kalom and he was watching the same by standing outside the temple wall. In between 11.30 pm. In between 11.30 pm. and 12.00 on that day the appellants along with Ganapathy, Sumesh, Kannan and Anish, (accused 2, 4, 5 and 6) came running to the temple compound. Ganapathy, Sumesh and the second appellant were armed with swords. Anish was armed with a chopper. While entering the temple premises, the first appellant was uttering 'cut him and murder' Seeing the assailants running, Pw1 followed them. The deceased was found running to the temple compound and fell down before the Hanuman temple. Appellants and other accused ran behind the deceased. The second appellant along with accused 2, 4 and 6 inflicted cut injuries on Shine with MOs.2 to 5. Shine, some how or other, got up and attempted to enter the sanctum santorum. But, he was pulled down at his leg by the first appellant and the 5th accused together. The 5th accused took MO1 udaval kept in the temple premises on a stand and cut at Shine. The other accused, except the first appellant also inflicted repeated cut injuries. Shine again got up and ran away. But he fell down at the north-eastern corner of the temple. By the time the first appellant got MO1 udaval from the 5th accused and inflicted cut injuries stating that, 'it was not to cut in the manner as done and he would show how to cut' The other accused also inflicted cut injuries. Seeing the incident, though Pw3 attempted to turn away the assailants, Pw3 was intimidated on sword tip by the first appellant. The ladies and others in the temple compound cried aloud. By the time the first appellant threw MO1 in the compound and all the accused took to their heels. 13. It was also deposed that the first appellant is the son of his father's brother and that the appellants and others were on enmical terms with deceased Shine, who was a member of the Action Committee and had complained before the local police and to the Members of the Legislative Assembly against the appellants and others. It was also deposed that there were number of tube lights fitted in connection with the festival and so there was sufficient light to see the incident. 14. It was also deposed that there were number of tube lights fitted in connection with the festival and so there was sufficient light to see the incident. 14. Pw2 would depose that she was the sweeper in the temple and that after 11 O'Clock in the night on 27.3.2007, she was sitting on the veranda of the Santhimadom face to face with deceased Shine who was napping and that the appellants along with other accused rushed to the temple compound armed with MOs.2 to 5. No sooner they entered the compound, than the first appellant uttered to murder. The 2nd appellant thereupon inflicted a cut injury on the left shoulder of Shine. Shine ran into the Chuttambalam and fell down in front of the Hanuman Temple. The appellants and other accused thereupon repeatedly inflicted injuries with MOs.2 to 5. Shine got up and ran away, but fell near Nagathara which is on the north eastern side of the temple. The first appellant and the 5th accused inflicted injuries with MO1 and that while the 5th accused chopping on Shine, the first appellant got MO1 from the 5th accused and chopped on Shine. The 2nd appellant inflicted injuries with MO3. It is further deposed that the appellants and others were engaged in criminal activities against which an Action Committee, of which deceased Shine was the President, was constituted and that due to that enmity, Shine was attacked and done to death. She had also deposed that since it was festival day there were number of tube lights. 15. Pw3 would depose that deceased Shine was the principal oracle and Pw1 was the oracle of Muthappan Temple and that by about 11.00 pm. on 27.3.2007 he was sitting on the western side of the Thidappally and was napping. Hearing the hue and cry he woke up. He then saw the appellants and the other accused chasing Shine. Shine fell down in front of the Hanuman Temple. The 2nd appellant, 2nd, 4th and 6th accused chopped Shine with swords. Shine attempted to enter sanctum sanctorum. When Pw3 attempted to rescue he was intimidated by waving swords against him. He took to his heels and escaped. Later he understood that Shine succumbed to the injuries. He had also deposed that being festival time, there were number of tube lights. Shine attempted to enter sanctum sanctorum. When Pw3 attempted to rescue he was intimidated by waving swords against him. He took to his heels and escaped. Later he understood that Shine succumbed to the injuries. He had also deposed that being festival time, there were number of tube lights. Pw4 would depose that between 11.30 pm and 12.00 on 27.3.2007, while he putting kalom for the next ritual, he heard hue and cry and found that five to six persons were chasing deceased Shine, who fell down before the Hanuman Temple. From there he was inflicted cut injuries by three or four persons. Seeing it, Pw4 ran away. According to him, it appears that the appellants were among the assailants. But, he was not sure. 16. Pw5 had given evidence almost corroborating with the evidence adduced by Pw1. He had identified the assailants as well as the weapons. He had further deposed that Shine was immediately rushed to the Modern Hospital, Kodungallur where the doctors declared him dead and that he was present when Ext.P1 inquest report, wherein he was an attester, was prepared was prepared by Pw16. 17. Pw16 had also deposed that he had prepared Ext.P1 inquest report. A reading of Ext.P1 would show that deceased Shine had a number of ante-mortem injuries. Pw9 had deposed that at 12.20 am on 17.3.2007 deceased Shine was brought dead to the hospital with injuries alleged to have been caused by persons who could be identified by sight and he gave Ext.P5 intimation. Ext.P5 would corroborate with the evidence of Pw5. 18, PW10 would depose that she was working as Lecturer in Forensic Medicine at Medical College Hospital, Trichur and on 28/03/07 she conducted Postmortem Examination on the body of Shine and noted the following Ante-mortem injuries:- 1. Incised wound 5.5 x 0.5 x 0.3 cm. oblique on left side of back of head, lower inner end 4 cm. above occipital protuberance at midline, raising a flap 5 x 3 cm. reflectable on the left side. Skul bone underneath was intact. 2. Incised wound 6.5x5x2 cm. oblique on back of right arm lower inner 6 cm. above elbow, underneath bone was found cut measuring 1.5 x 0.2x0.5 cm. 3. Superficial incised wound 11x0.3 cm. oblique on outer aspect of right side of abdomen, upper front end 14 cm. outer to midline and touching the costal margin. 4. Incised wound 7.5x2x1 cm. 2. Incised wound 6.5x5x2 cm. oblique on back of right arm lower inner 6 cm. above elbow, underneath bone was found cut measuring 1.5 x 0.2x0.5 cm. 3. Superficial incised wound 11x0.3 cm. oblique on outer aspect of right side of abdomen, upper front end 14 cm. outer to midline and touching the costal margin. 4. Incised wound 7.5x2x1 cm. oblique on front and outer aspect of right thigh with tailing of 4 cm. at upper end, lower outer end 6.5 cm. above knee. 5. Incised wound 9x2x4 cm. oblique on right buttock, upper outer end 13 cm. below hip bone. 6. Incised wound 21x2x1 cm., curved on right side of back of chest, upper inner end 1.5 cm. outer to midline and 2.5 cm. below root of neck, with concavity towards left. 7. Incised wound 9x4x3 cm. slightly oblique across back of right thigh, just above knee. 8. Incised wound 11x7x4.5 cm., slightly oblique across back of right knee, right end 2 cm. lower than the left end. It had transected the muscles, Blood vessels (popliteal artery and veins), nerves and lower end of thigh bone (condyles of femur) for its full thickness. 9. Incised wound 11x4.5x3 cm. oblique on back of right leg, 6.5 cm. below injury No.8. 10. Incised wound 7x2x2 cm. oblique on back of right leg, lower outer end 3.5 cm. above ankle (lateral malleolus). 11. Incised wound 6x2x1.5 cm. oblique on outer aspect of right leg, upper outer end 8 cm. above ankle (later malleolus). 12. Incised wound 8.5x2x0.5 cm. slightly oblique on top of right foot with inner end at the base of middle toe. 13. Incised wound 3x1x0.2 cm. oblique on inner aspect of left foot, 4 cm. below ankle (medical malleolus). 14. Incised wound 3x2x0.5 cm. placed from front to back on outer aspect of left foot 4 cm. below ankle. 15. Incised would 11x3.5x1 cm. oblique on top and back aspect of left shoulder, lower inner end 2 cm. outer to midline at root of neck. 16. Incised wound 13x8x5 cm. placed from front to back on outer end of left shoulder with front lower end at anterior axillary fold 14.5 cm. outer to midline, the muscles underneath found cleanly cut, and neck of humerus for its full thickness. 17. Vertical linear abrasion 10x0.2 cm. on outer aspect of right thigh, upper end 12 cm. below hip bone. 18. placed from front to back on outer end of left shoulder with front lower end at anterior axillary fold 14.5 cm. outer to midline, the muscles underneath found cleanly cut, and neck of humerus for its full thickness. 17. Vertical linear abrasion 10x0.2 cm. on outer aspect of right thigh, upper end 12 cm. below hip bone. 18. Linear abrasion 8x0.2 cm. oblique on outer aspect of right buttock upper back end 1.5 cm. below hip bone. 19. Linear abrasion 7x0.2 cm. oblique on outer aspect of right thigh, upper end 3 cm. below injury No.18. 20. Linear abrasion 10x0.2 cm. oblique on outer and front aspect of right thigh, upper end 8 cm. below injury No.19. 21. Linear abrasion 5x0.2 cm. oblique, parallel and 1.5 cm. below injury No.20. 22. Linear abrasion 9x0.2 cm. oblique on upper part of right buttock, upper outer end 3 cm. below hip bone. 23. Linear abrasion 17x0.2 cm. oblique on lower part of back of trunk, lower inner end 9.5 cm. above sacrum at midline. 24. Linear abrasion 4x0.2 cm. transverse on inner aspect of left thigh, 6.5 cm. above knee. 25. Abrasion 1.5x1 cm. on upper part of outer aspect of pinna of right ear. 26. Multiple abrasions over an area 6x3 cm. on back of right forearm, 1.5 cm. below elbow, varying in size 0.8x0.5 cm. to 2.5x1.5 cm. 27. Multiple linear oblique graze abrasions over an area 12x6 cm. on outer aspect of right side of chest, upper end 1 cm. below axilla, directed upwards and inwards. 28. Abrasion 2.5x2 cm. on right side of front of abdomen, 6.5 cm. outer to midline and 10 cm. Below costal margin. 29. Multiple abrasions over an area 6x4 cm. on upper part of front or right thigh, 6 cm below hip bone. 30. Multiple abrasions over an area 8x4 cm. on front of left knee, varying in size 0.8x0.5 cm. to 3x2 cm. 19. She would further depose that the deceased died of cut injury sustained at the back of right knee (injury No.8). on upper part of front or right thigh, 6 cm below hip bone. 30. Multiple abrasions over an area 8x4 cm. on front of left knee, varying in size 0.8x0.5 cm. to 3x2 cm. 19. She would further depose that the deceased died of cut injury sustained at the back of right knee (injury No.8). The other incised wounds (injury Nos.1 to 7 and 9 to 16) also could have contributed to cause death and that injuries Nos.1 to 16 could be caused with weapons like Mos.1 to 5 and that injury No.8 in the ordinary course of nature is sufficient to cause death and that adding together with injury No.8, injuries Nos.1 to 7 and 16 to 19 are sufficient to accelerate the death and since there was profuse bleeding from injury No.8 the death would have been fairly rapid. Injury No.1 to 16 are incised wounds. Injury No.17 to 30 are abrasions. It appears that injury No.17 to 30 were caused while the injured falling down or removing him to hospital. Injury Nos.1 to 16 could be caused only with sharp edged weapons like MOs.1 to 5. The cause of injury deposed by PW10 could not be shaken in cross examination though PW10 was subjected to searching cross examination. Going by the evidence of PW10 and Ext.P6 Postmortem Certificate issued by her which corroborated with oral evidence, we find little reason to arrive at a divergent conclusion other than that was opined by PW10. On a reappraisal of the evidence on record, we find that the Learned Sessions Judge had correctly appreciated the evidence of PW10 corroborated by Ext.P6 and had rightly come to the conclusion that the death of Shine was homicidal. 20. The next question that arises for consideration is whether the homicide was committed by the appellants along with other accused in furtherance of the common object? The learned counsel for the first appellant argued that the first appellant was not at the spot and he was implicated with ulterior motives. According to the learned counsel, that is evident even by the progress of the case from Ext.P8 to the oral evidence. It was further argued that the brother of the first appellant was murdered by the brother of PW1 and others and the first appellant was a witness in that case. It is because of that animosity PW1 had implicated him. It was further argued that the brother of the first appellant was murdered by the brother of PW1 and others and the first appellant was a witness in that case. It is because of that animosity PW1 had implicated him. Reliance was given to Ext.D4 judgment in SC.No.649/06. It was further argued that MO6 Nokia phone was belonging to the first appellant and that first appellant was arrested by PW14 Sub Inspector of Police on 28/03/07 and that at the time of arrest he was possessing the same and it was seized by PW14 and later it was planted at the spot. The learned counsel in support of his argument canvassed our attention to interlineation in Ext.P2 scene mahazar. The learned counsel had also canvassed our attention to Ext.P15, the print out of the incoming and outgoing calls from the cell phone (MO6) having No.9846672366. Ext.P15 would show that there were outgoing and incoming calls from MO6 Mobile Phone from 12.07 a.m. on 28/03/07 till 8.46 p.m on 28/03/07. The further argument that was advanced is that there is absolutely no material to come to a conclusion that there was unlawful assembly so as to convict the appellants for offence under Sections 143, 147, 148 and 149. The learned counsel for the second appellant also argued that there is a little material to come to a conclusion regarding unlawful assembly and that in that circumstance, the second appellant can be convicted only for the act of commission alone. It was further argued by both counsel that in the absence of evidence regarding unlawful assembly and common object, the appellants could not be convicted for offence under Section 302 IPC because there is no material to come to a conclusion that the cut injury, if any, inflicted by the appellants had caused the death of Shine. 21. Now the evidence on record can be analysed in the light of the argument advanced by the learned counsel for the appellants. PW1 had specifically stated that the appellants along with other accused rushed to the temple compound and at the time when they ran to the temple compound the second appellant as well as the accused Nos.2, 4 and 6 were armed with swords and chopper. According to PW1 no sooner they entered the compound than the appellant shouted "murder him by cutting". Shine ran into the Chuttambalam. According to PW1 no sooner they entered the compound than the appellant shouted "murder him by cutting". Shine ran into the Chuttambalam. All of them chased Shine who fell down in front of the Hanuman Temple. Then, he was inflicted cut injuries by the second appellant and accused 2, 4 and 6 who were specifically named. From there somehow or other Shine got up and tried to enter the sanctum sanctorum and to escape. But he was restrained from entering sanctum sanctorum by pulling him down by the first appellant and the fifth accused. Then the fifth accused along with the second appellant and other accused inflicted injuries. Again Shine got up and attempted to ran away. But he fell down on the northeastern corner of the temple where he was again inflicted injuries by the second appellant and the other accused. From the fifth accused, the first appellant got MO1 and he also inflicted cut injuries stating that he should be cut in the manner as being done by the first appellant and not in the manner as done by the fifth accused. Though PW3 attempted to rescue, he was intimidated. Seeing this, PW5 and other ladies, who were there, cried aloud. Then the first appellant threw away MO1 and all appellants took to their heels. PW1 was cross examined at length. Some minor discrepancies are revealed out. It was also revealed out that the first appellant was a witness in Ext.D4 case. The possibility for he having some animosity against the first appellant cannot be ruled out. 22. The evidence of PW2 also would show that the appellant and other accused rushed into the temple compound and then to the Chuttambalam with MOs.2 to 5. According to PW2, no sooner the appellants and other assailants rushed to the compound than the first appellant uttered 'murder by cutting' and that the second appellant inflicted a cut injury at the left shoulder of Shine. Shine soon ran into the Chuttambalam. He was chased by the appellants and other assailants. Shine fell down. He was inflicted cut injuries by the appellants. From there he ran and again fell down on the northeastern corner of the temple. Thereupon, the fifth accused took MO1 Udaval and inflicted injuries. Shine soon ran into the Chuttambalam. He was chased by the appellants and other assailants. Shine fell down. He was inflicted cut injuries by the appellants. From there he ran and again fell down on the northeastern corner of the temple. Thereupon, the fifth accused took MO1 Udaval and inflicted injuries. The first appellant got MO1 from the hands of the fifth accused and he also inflicted injuries stating that it is thus to be inflicted injuries. Evidence of PW2 would also corroborate with the evidence of PW1 except on two aspects. One is that PW1 had not deposed about the injury inflicted on Shine at his shoulders before he running into Chuttambalam. The other is that PW1 had deposed that the first appellant and the fifth accused pulled down while Shine attempting to enter the temple. PW2 has no such mention in her evidence. 23. The evidence of PW3 would show that while he was napping by sitting on the varanda of the Thidappally, appellants and other assailants chased Shine into the Chuttambalam and Shine fell down in front of the Hanuman temple. Four of the assailants including the 2nd appellant inflicted injuries with sword when Shine fell down. The first appellant and yet another one were not armed. Getting up from the place where Shine fell down, he attempted to ran into the sanctum sanctorum. By the time PW3 rushed to rescue the injured but he was intimidated by waiving the sword against him and he took to his heels. As regards the number of assailants and the presence of the appellants and that they were armed with weapons, the evidence of PW3 corroborated with PWs.1 and 2. PW4 who was engaged in putting "Kalom" for the next ritual in the temple had also deposed that while he was putting "Kalom" by about 11.30 p.m. he heard a cry outside the temple and then Shine ran into the Chuttambalam. He was chased by about five or six persons. Shine fell down in front of the Hanuman temple. Three or four persons inflicted injuries on shine where he fell down. Being got scared PW4 and those who were assisting him ran out and escaped from the place. 24. The evidence of PW5 almost corroborate with the evidence given by PWs.1 to 4. He would also depose about the presence of all the six assailants. Three or four persons inflicted injuries on shine where he fell down. Being got scared PW4 and those who were assisting him ran out and escaped from the place. 24. The evidence of PW5 almost corroborate with the evidence given by PWs.1 to 4. He would also depose about the presence of all the six assailants. He had identified the assailants with name. The weapons used by all the assailants were also deposed by PW5. PWs.1 to 5 are harmonious that being a festival day there were large number of electric tubes and that the incident could be well seen in the light. We had carefully gone through the evidence of PWs.1 to 5. In fact, there is no much suggestion to PWs.1 to 5 for implicating the appellants with the offence alleged. To PW2, it was suggested that she had deposed in favour of prosecution because of the compulsions of the relatives of the deceased. On behalf of the second appellant, it was suggested that she had been telling lie. To PW3, it was suggested that he had not seen the incident but he had been giving evidence as requested by the Police. To PW5, it was suggested that he had been giving evidence because of the family animosity and that the first appellant was not at the spot. On a careful reading of the evidence of PWs.1 to 5, we find that though PW1 had some axe to grind against the first appellant his evidence also corroborate with the evidence of PWs.2 to 5 in all material particulars. Of course, as mentioned earlier, there is some minor discrepancies and some embellishments here and there. On a very critical and anxious consideration of the evidence of these witnesses we fail to find that any of these witnesses are hired witnesses. In the normal course, when groups of family members fight each other and there are cases and counter cases, there is every likelihood of mending cases to wreak vengeance. In the light of evidence of PWs.2 to 5, in the peculiar given set of facts, we find little reason to reject the evidence of PW1 as such. Even if the evidence of PW1 is kept apart as a witness having some motivation, in the light of the evidence of Pws.2 to 5, we find that there is sufficient evidence leading to the guilt of the appellants. Even if the evidence of PW1 is kept apart as a witness having some motivation, in the light of the evidence of Pws.2 to 5, we find that there is sufficient evidence leading to the guilt of the appellants. The incident in this case is of a gruesome nature. It occurred in the midnight though there were sufficient electric lights. The incident was over within five or six minutes. While representing the same in evidence by the occurrence witnesses there is every likelihood of having some minor variations here and there. In such cases, the credibility of the witnesses is to be doubted only if there are no variations at all. We have noticed that PW2 had deposed about an injury inflicted by the second appellant at the shoulder of Shine outside the Chuttambalam. It appears that PW2 alone was present at the spot. By the evidence of PWs.1, 3, 4 and 5 they were not there. They reached there after the first injury. So the evidence of PW2 regarding the inflicting of injury at the shoulder of Shine before he entering the Chuttambalam, though not corroborated by the evidence of PWs.1 and 3 to 5, cannot be discarded. The evidence of PWs.1 to 5 would show that by about 11.30 p.m. the assailants rushed to the temple compound through the western gate. At that time Shine was sitting and napping near the eastern compound wall. Shine was inflicted cut injury at his shoulder by the 2nd appellant. Seeing it PW2 cried aloud. Shine ran into the Chuttambalam. Assailants chased him and he was inflicted injuries repeatedly by the appellants and other assailants. On that aspect, the evidence of PWs.1 to 5 is harmonious. We see no reason to disbelieve Pws.1 to 5 on that aspect. 25. PWs.1 to 5 are also harmonious that there were six assailants. All of them were specifically named and the weapons used by each of them were also specifically deposed. The argument of the learned counsel appearing for the first appellant that the first appellant was not at the spot of occurrence did not appear to be correct in the light of the evidence of Pws.1 to 5. 26. There is no suggestion in cross examination to any of the witnesses that the assailants had any role in the temple premises at the time of occurrence. 26. There is no suggestion in cross examination to any of the witnesses that the assailants had any role in the temple premises at the time of occurrence. The evidence of PWs.1 to 5 would show that the assailants together came running into the temple premises and at the time when they entered the temple premises the second appellant and accused 2 and 4 were armed with Mos.3 to 5 swords and the sixth accused was armed with MO2 chopper. The fact that four of the assailants were armed with deadly weapons and they all on a sudden ran into the compound is a sufficient circumstance in favour of the prosecution regarding the unlawful assembly and that being the members of the unlawful assembly, they were armed with deadly weapons. Immediately after the assailants entering the compound, the evidence of PW2 would show that the first appellant uttered to murder by cutting. It is hearing that uttering PW2 turned her attention and found that Shine was being inflicted cut injury by the second appellant. Then Shine ran into the Chuttambalam. All the assailants chased him. When fell down again Shine was inflicted injuries by four of the assailants. From there Shine attempted to escape. But the assailants did not leave him. They chased him again and inflicted injuries. The manner in which the injuries were inflicted on Shine would establish the common object of all the members of unlawful assembly and their action in furtherance of the common object. 27. The argument on behalf of the appellants that there was no material to arrive at a conclusion of common object does not appeal to us. The learned counsel appearing for the first appellant canvassing our attention to the decision in Mohanan v. State of Kerala, 2010(1) KLT SN 84 argued that since majority of the injuries are below the hip, especially injury No.8 which mainly led to the death, the intention to commit murder cannot be inferred. According to the learned counsel for both the appellants, the intention was only to inflict injuries and not to murder. Having gone through the number of incised injuries inflicted with repeated action without allowing the victim to escape, which we mentioned earlier, we are not impressed by the argument advanced. Injury Nos.1 to 6 and 15 are on the upper part of the body, including at the head. Having gone through the number of incised injuries inflicted with repeated action without allowing the victim to escape, which we mentioned earlier, we are not impressed by the argument advanced. Injury Nos.1 to 6 and 15 are on the upper part of the body, including at the head. Repeated inflicting of injuries even after Shine falling down dissuades us to accept the argument advanced by the learned counsel appearing for the appellants. It is pertinent to note that Shine was resting at the temple compound. He was waiting his turn for the following performance in the temple ritual. He was not at all armed. He was not aggressive. He could not even attempt to obstruct the inflicting of injuries. He was scared and tried to escape from the attack somehow or other. But the assailants were not prepared to leave him. They left the scene only when the injured could not get up from the north- eastern corner of the temple where he fell down last. Since the victim was running to escape and assailants were chasing him, it is rather difficult to inflict injuries at the vital part alone. The number of injuries and the locations would show that the assailants inflicted cut injuries with deadly weapons at whatever and wherever places they could. So the argument that common object in inflicting injuries alone could be inferred is devoid of any merit. Common object to commit murder is evident. 28. Sri.Renjith B. Marar in support of his argument relied upon the decisions in Afrahim Sheikh v. State of West Bengal, AIR 1964 SC 1263 , Baba Nanda v. State of Assam, AIR 1977 SC 2252 and the decision in R v. Mendez and another, (2010) 3 All ER 231. Relying upon the former two decisions and Section 38 IPC, the learned counsel would argue that to convict the appellants for murder with the aid of common object, there shall be evidence to the effect that the common object existed before the criminal act which perpetrated to the crime. In the absence of such evidence, they could be held guilty only for the particular act. In the absence of such evidence, they could be held guilty only for the particular act. In R v Mendez's case it is held as follows: "In case of joint enterprise liability for murder where the common purpose was not to kill but to cause serious bodily harm, D was not liable for the murder V if the direct cause of V's death was a deliberate act by P-- 'deliberate act' means deliberate and not by chance-- It would not be just that D should be found guilty of the murder of V by P if P's act was of a different kind from, and much more dangerous than, the sort of acts which D had intended or foreseen as part of the joint enterprise". Bearing in mind the above rulings and the facts of those cases and having due regard to the facts of this case, we find that in this case facts are different. There are every reason to conclude that the assailants, after having a common object formed themselves into unlawful assembly and being members of the assembly, they were armed with MOs. 2 to 5 deadly weapons and rushed to the spot. The common object to murder even before they arriving the scene of occurrence is very evident in this case. The weapons, Mos.2 to 5 they brought are very dangerous. MO1 which the 5th accused took from the temple premises and used by the first appellant and 5th is also a dangerous weapon. We are of the opinion that the prosecution had succeeded to establish the unlawful assembly and the common object. The fact that the members of the unlawful assembly were armed with deadly weapons in furtherance of their common object and their action in furtherance of the common object are well established. The result is the murder of Shine. 29. In the light of our above finding, the argument advanced by Sri.Renjith B. Marar basing upon Section 38 IPC that all the assailants cannot be convicted for murder with the aid of Section 149 IPC and that the assailants can be held only for their individual act deserves no consideration. Both the counsel appearing for the appellants argued that in an unusual manner the investigating officer filed charge sheet against two of the assailants alone. Both the counsel appearing for the appellants argued that in an unusual manner the investigating officer filed charge sheet against two of the assailants alone. Though they initially argued that filing of such report against two of the assailants is not legally sustainable, they did not pursue the same. On the other hand, it was argued that in the event in a subsequent trial if the other assailants were acquitted, the conviction of the appellants with the aid of Section 149 is not at all sustainable. We are unable to find favour with the argument as it is a hypothetical one. From the evidence on record, we find that all the witnesses had specifically identified the assailants with their names, the weapons they used and their action of inflicting injuries. According to the prosecution, the final report against the other assailants were not filed because they could not be apprehended and they had to be got identified by the witnesses before filing the final report. From the Bar it is submitted by the learned Public Prosecutor that two of the assailants were later apprehended and they are facing prosecution. Two other assailants are still absconding. In the light of the evidence of Pws.1 to 3 and 5 implicating the assailants with specific mention of their names and the weapon they used, we find little merit in the hypothetical contention advanced on behalf of the appellants. As regards the total number of the assailants, there is no conflict in the evidence of PWs.1 to 5. All are specific that there were six assailants. We also notice that Ext.P8 first information statement was given by one of the occurrence witness within 1 = hours. PWs.1 to 5 were questioned by the investigating officer on the next day itself. All of them had implicated the assailants with their names and the weapons used by each of them. It is basing upon the statements of PWs.1 to 3 and 5 and the statement of the first informant, PW.16 filed Ext.P9 and P10 reports specifically mentioning the name of all the six accused. In the light of Exts.P9 and P10 and the evidence on record that the occurrence witnesses were questioned at the earliest opportunity, ie. It is basing upon the statements of PWs.1 to 3 and 5 and the statement of the first informant, PW.16 filed Ext.P9 and P10 reports specifically mentioning the name of all the six accused. In the light of Exts.P9 and P10 and the evidence on record that the occurrence witnesses were questioned at the earliest opportunity, ie. on the next day itself, we fail to find any material to come to a conclusion that the witnesses had got even an opportunity to have a re- thinking and to falsely implicate any person who was not at the spot of occurrence. 30. Going by Ext.P15, we find that as argued by the learned senior counsel appearing for the first appellant, even after the occurrence, MO.6 cell phone had accepted incoming calls and there were outgoing calls also. Having due regard to the fact that there is some interlineation regarding the mobile phone in Ext.P2 scene mahazar, the possibility of some attempt to make out evidence to the effect that MO.6 fell down from the possession of the first appellant cannot be ruled out. It is now pertinent to note that the very case of the first appellant is that he was arrested on 28-3-2007 and the cell phone was obtained from him by PW14. That evidence appears to be prima facie convincing. Before the trial court it was argued that the incoming call and outgoing calls from MO.6 might have been done by the police for testing purpose. Though the trial Judge believed the same, we are not impressed with such reasoning. More the more, the learned Public Prosecutor did not advance such argument and fairly he conceded that there might be some manipulation by implanting MO.6 mobile phone in the scene mahazar to make it appear that the same fell down at the spot from the possession of the appellant. The learned Public Prosecutor submitted that it might have been done so due to the over enthusiasm of the investigating officer. It was further submitted that for that reason, in the light of the clear cut evidence of PWs.1 to 5, it is not appropriate to disbelieve the prosecution case as such. We find merit in the submission. We are not proceeding against the investigating officer or that the investigating officer is not in the dock. It was further submitted that for that reason, in the light of the clear cut evidence of PWs.1 to 5, it is not appropriate to disbelieve the prosecution case as such. We find merit in the submission. We are not proceeding against the investigating officer or that the investigating officer is not in the dock. Even if the investigating officer had done some manipulation in the investigating process, unless it affects the core of the prosecution case, it shall not be a reason to reject the prosecution case as such when there is clear cut evidence of the occurrence witnesses. 31. It is pertinent to note that the assailants as well as the witnesses were belonging to fishermen community. There is nothing on record to show that the witnesses or the relative of the deceased were in a position to influence the investigating officer to cook up a case by manipulating the records. So we conclude that the implanting of the mobile phone at the spot by the investigating officer is not at the instance of the witnesses or at the instance of the relatives of the victim to fabricate evidence against the assailants, but it is an act of over-enthusiasm by the investigating officer. We find that the conviction based on cogent evidence is not liable to be interfered for that reason. 32. The evidence of DW.1 is to the effect that the first appellant and the fourth accused were not involved with the offence alleged whereas the offence alleged was committed by the second appellant. In the light of the evidence of PWs.1 to 5, we find no merit in the evidence of DW.1. 33. To connect the second appellant, the prosecution would rely upon the recovery of MOs.2 to 5 on the basis of Ext.P4 recovery mahazar wherein PW.8 is an attestor. The second appellant has got a case that those material objects were planted by the investigating officer and the so-called recovery is an absolute drama by the investigating officer. Going by the evidence of PW.8, we find little merit in the contention. PW.8 had specifically deposed that when he went to the beach for purchasing fish, he saw the appellant and police party and that MOs. 2 to 6 were digged out by the appellants. Going by the evidence of PW.8, we find little merit in the contention. PW.8 had specifically deposed that when he went to the beach for purchasing fish, he saw the appellant and police party and that MOs. 2 to 6 were digged out by the appellants. Recovery of MOs.2 to 5 on the basis of Ext.P4(a) statement given by the appellants also lead to the guilt alleged against him. It is also pertinent to note that the second appellant had in fact practically admitted his involvement while giving statement under Section 313 Cr.P.C. 34. The learned Sessions Judge in paragraph 75 of the judgment had concluded that the case on hand is a rarest of the rare case to award capital sentence to the first appellant. Referring to various decisions of the Apex Court and giving reliance to the statement of the first appellant and Exts.C1 to C15, the learned Sessions Judge had come to a conclusion that exposing first appellant to society would lead to unknown number of murders and similar harassments. He is a hardened criminal beyond any correction and rehabilitation. He is blood thirsty, irreclaimable and the crime was committed in a most cruel, inhuman, extreme brutal, gruesome, diabolic, revolting and dastardly manner. Assailing heavily upon the above findings of the learned Sessions Judge, the learned Senior Counsel for the first appellant, giving reliance to certain decisions of the Apex Court argued that the case on hand is not one coming within the category of rarest of rare cases. We are not proposing to refer to the citations pointed out by the learned senior counsel because, Sri.S.U.Nazar, learned public prosecutor fairly conceded before us that this is not a case coming under the category of rarest of rare cases. It is also submitted by the learned public prosecutor that having due regard to the manner in which the offence was committed and the involvement of the assailants, there is nothing to discriminate between the appellants in the case of sentence. In the above circumstances, we find that it would suffice to mention that to determine whether the case comes within the category of rarest of rare cases for awarding sentence, the mitigating and aggravating circumstances of the case alone are to be looked into. In the above circumstances, we find that it would suffice to mention that to determine whether the case comes within the category of rarest of rare cases for awarding sentence, the mitigating and aggravating circumstances of the case alone are to be looked into. The conduct and character of the accused or their defiant attitude to answer the questions regarding sentence shall not be a ground to include the offence in the category of rarest of rare cases. We notice that the learned public prosecutor before the trial court canvassed for capital sentence giving reliance to Exts.C1 to C17. Ext.C1 would show that in one case there is conviction for offences under Sec.323, 324 and 307 r/w.34 IPC. In certain other cases, evidenced by Exts.C2 to C17, final reports were filed. Other set of cases are pending investigation. It is fairly conceded that, in convicted case, the appeal is pending and the judgment has not become final. Referring to Ext.C5 final report, it was submitted before the Sessions Judge that the said cases ended in conviction. But no document was produced. However, the learned Sessions Judge recorded it. In Ext.C11 final report, there is an allegation that there are previous convictions. But there is no document produced. The learned senior counsel appearing for the first appellant submitted that the previous convictions alleged against his client was not brought on record as contemplated under Section 298 of the Code of Criminal Procedure. Though not relevant in the light of the submission made by the learned public prosecutor that this is not a case coming under the category of rarest of rare cases, we find that it would be appropriate to consider that contention also. For a correct appraisal, a reading of Section 298 of the Code of Criminal Procedure would be appropriate. Though not relevant in the light of the submission made by the learned public prosecutor that this is not a case coming under the category of rarest of rare cases, we find that it would be appropriate to consider that contention also. For a correct appraisal, a reading of Section 298 of the Code of Criminal Procedure would be appropriate. "298.Previous conviction or acquittal how proved.-- In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force,-- (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held to be a copy of the sentence or order, or (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered. together with, in each of such cases evidence as to the identity of the accused person with the person so convicted or acquitted." A reading of the above provision would show that the previous conviction alleged against the first appellant was not brought on record in the manner stated in the above provision. Exts.C1 to C17 would not come within the category of sub clause (a) or (b) to Sec.298. The learned public prosecutor had produced certain certified copies and they were marked. None of the documents produced contain a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone or the punishment suffered. Adding to the above, no evidence was let in to bring on record that the 1st appellant is the person mentioned in those documents. Neither those documents were proved by any other mode provided by any law as stipulated in Sec.298 Crl.PC. Mere production of some certified copy would not meet the requirement of proof provided under Sec.298 Crl.PC. So the learned senior counsel is correct in his submission. Neither those documents were proved by any other mode provided by any law as stipulated in Sec.298 Crl.PC. Mere production of some certified copy would not meet the requirement of proof provided under Sec.298 Crl.PC. So the learned senior counsel is correct in his submission. We find that this is not a case in which the capital sentence is to be awarded to the 1st appellant and that sentence equal to that awarded to the second appellant would meet the ends of justice. We notice that along with sentence of imprisonment for life, a fine of Rs.2,00,000/- is awarded against the appellant in C.A.899 of 2010. We find that, having due regard to the fact that the appellants belong to fishermen community with no better income, the sentence of fine imposed is exorbitant and beyond their means or ability. There is no likelihood of realising the same. Therefore, we find that a fine of Rs.1,00,000/- would meet the ends of justice. In the result, the death sentence reference is answered negatively against the prosecution. We decline the confirmation sought. Crl.A.1412 of 2008 is allowed in part. While confirming the conviction impugned, the sentence for offence under Sec.302 IPC that the first appellant be hanged by the neck till he is dead, is set aside and he is sentenced to undergo imprisonment for life and a fine of Rs.1,00,000/- (Rupees one lakh only). In all other respects, the conviction and sentence for other offences require no interference. The other appeal (Crl.Appeal No.899/2010) is also allowed in part. While confirming the conviction and substantial sentences for all offences, fine imposed for offence under Sec.302 IPC is reduced to Rs.1,00,000/- (Rupees one lakh only). We also notice that the charge for offence under Section 342 read with Section 149 I.P.C. was framed against the appellants. There is no evidence to connect the appellants with the offence under Section 342 read with Section 149 I.P.C. So, the appellants are entitled to an order of acquittal for that offence. Since they were neither convicted nor sentenced for such offence by the learned Sessions Judge, it is to be deemed that they are acquitted for offence under Section 342 read with Section 149 I.P.C.