JUDGMENT : K.T. SANKARAN, J. Accused No.1 in S.C.No.183 of 2006 on the file of the Court of the Additional Sessions Judge (Adhoc) Fast Track Court No.1, Thrissur, who was found guilty for the offences under Sections 143, 147, 148, 341, 324, 326 and 302 read with S.149 of the Indian Penal Code and sentenced to undergo imprisonment for life and various other terms of imprisonment, challenges the conviction and sentence in this appeal. 2. The prosecution case is the following: On 20.7.2001 at 9 a.m., while the deceased (Salgunan) was proceeding on a bicycle through Edathirunjhi-Moonnupeedika public road near Chettiyar Junction, after supplying toddy tapped by him in a toddy shop, the accused persons waylaid him and attacked him with chopper, iron pipes etc. Salgunan died at the place of occurrence itself. On getting information, PW1, the elder brother of the deceased, came to the spot and he found the deceased lying in a pool of blood. PW1 informed the police and gave Ext.P1 First Information Statement to the Assistant Sub Inspector of Police, Kattoor (PW19), who registered Crime No.137 of 2001. PW24, Circle Inspector of Police, conducted the investigation. He arrested the appellant on 31.7.2001. PW22, the then Circle Inspector of Police completed the investigation and laid the charge. 3. Before the court below, on the side of the prosecution, PW1 to PW24 were examined, Exts.P1 to P38 were marked and MO1 to MO34 were identified. On the side of the defence, Exts.D1 to D28 were marked. 4. There were seven accused in the case. Accused No.3 was absconding and, therefore, the case against him was not committed to the Sessions Court. The learned Sessions Judge found the appellant/first accused guilty of the offences mentioned above. The trial court acquitted accused Nos.2 and 4 to 7 only on the ground that PW3 and PW18 did not know those accused persons prior to the date of commission of the offence and no test identification parade was conducted by the investigating agency. 5. The deceased (Salgunan) was an accused in a murder case and he came out of jail after completing the period of sentence in April, 2001. Salgunan was convicted of the murder of one Murali, who was a close friend of the first accused in the present case. 5. The deceased (Salgunan) was an accused in a murder case and he came out of jail after completing the period of sentence in April, 2001. Salgunan was convicted of the murder of one Murali, who was a close friend of the first accused in the present case. The prosecution alleged that to wreak vengeance on Salgunan, the accused persons formed themselves into an unlawful assembly armed with deadly weapons, with the common object of murdering Salgunan and committed the offence on 20.7.2001 at 9 a.m. 6. The postmortem of the deceased was conducted by PW4, the Assistant Professor of Forensic Science Medicine and Deputy Police Surgeon at Medical College Hospital, Thrissur. In Ext.P3 postmortem report, the following ante-mortem injuries on the deceased were noted: “1. Incised avulsion, triangular 21 c.m. long vertical over right side of back of chest, with base upper and horizontal, 14 c.m. long, over shoulder top and over adjoining outer aspect of upper arm, apex downwards, 0.5 c.m. - 3 c.m. deep exposing cut transected muscles, nerves and vessels underneath and the upper arm bone with upper 16 c.m. vertically cut fractured into inner two third and comminutedly cut fractured outer third, the latter being a component of the flap reflectable front-wards. 2. Incised wound, 6.5 x 2 x 0.5 c.m., vertical, over flap of injury No.1, 8 c.m. below upper border of injury No.1. 3. Incised wound 6 x 1 x 1.5 c.m. oblique, parallel to and 2.5 c.m. behind front border of flap of injury No.1. 4. Incised wound, 15 x 5 x 4 c.m., vertically oblique, along back of right upper arm exposing cut transected muscles, nerves and vessels with upper border joining front border of injury No.1. 5. Incised wound, 5 x 1.5 x 1.5 c.m. oblique over right side of back of chest with lower outer end 17 c.m. outer to midline and 28 c.m. below shoulder top, the other end bearing a superficial linear incised wound 8.5 c.m. long upwards and inwards. 6. Incised wound, 10 x 1-3 x 0.5-1 c.m. vertical over right side of chest, 15 c.m. below roof of armpit. 7. Two superficial incised irregular avulsions, one 1.5x1 c.m.. vertical, 1 c.m. below apex of injury No.1 at 5 O' clock position and the other 3x1 c.m.. oblique, with lower front end 2 c.m. vertically below apex of injury No.1, with flap of both front-wards. 8. 7. Two superficial incised irregular avulsions, one 1.5x1 c.m.. vertical, 1 c.m. below apex of injury No.1 at 5 O' clock position and the other 3x1 c.m.. oblique, with lower front end 2 c.m. vertically below apex of injury No.1, with flap of both front-wards. 8. Contused abrasion, 0.5 x 0.5 c.m., over outer aspect of back of right elbow. 9. Incised wound, 3 x 0.3 x 0.3 c.m. transverse, over inner aspect of right forearm 6 c.m. below elbow. 10. Incised vertical transecting wound of right hand with upper end at wrist and lower end at web between ring and small fingers, cut separating muscles, nerves, vessels and tendons and cut fracturing the metacarpal bone of ring finger as outer 2/3rd and inner third - all in situ. 11. Multiple linear abrasions, 3-4 c.m. long, oblique, upper end being outer over an oblique area 11 x 2 c.m. over outer aspect of right thigh with lower front end 10 c.m. above knee. 12. Incised wound 4 x 1 x 1 c.m. transverse, over left shin 18 c.m. above base of heel, with underneath inner leg bone transversely cut fractured. 13. Incised wound 1.5 x 0.5 x 0.3 c.m. parallel to and 6.5 c.m. above injury No. 12. 14. Incised wound, 13 x 1.5 x 3.5 c.m. curved over left side of front of chest with concavity downwards with ends sharp cut with upper front end 13 c.m. below nipple at 7 O'clock position, cutting muscles, nerves and vessels underneath and 9th left rib and pleural to open into left chest cavity. Left lung 200 gram collapsed. 15. Incised wound, 7.5 x 1.5 x 4 c.m. vertical, over left side of chest, 11 c.m. below roof of armpit with upper end bearing a linear superficial vertical incised wound for 7 c.m. upwards. 16. Linear superficial incised wound, transverse 5 c.m. long, over back of left upper arm, 6 c.m. below shoulder tip being in a line with injury No. 15 on flexion of shoulder. 17. Incised wound 15 x 7 x 6 c.m. oblique over left side of back of chest with upper outer end 7 c.m. below shoulder top and 19 c.m. outer to midline cutting underneath muscles, nerves and vessels. 18. 17. Incised wound 15 x 7 x 6 c.m. oblique over left side of back of chest with upper outer end 7 c.m. below shoulder top and 19 c.m. outer to midline cutting underneath muscles, nerves and vessels. 18. 3 incised wounds, transversely oblique parallel to each other and 1-3 c.m. apart, 13-14 c.m. long, 4 c.m. deep each over outer aspect of left upper arm with upper one 15 cm below shoulder tip exposing together cut separated muscles, nerves, vessels and cut transected upper arm bone underneath, with areas in between as loose flaps. 19. Incised wound, 11 x 2.5 x 3 c.m., oblique over outer aspect of left upper arm with upper back end joining front end of lower wound of injury No. 18. 20. Incised wound, 15 x 6 x 5 c.m. vertical over outer aspect of left forearm, with upper end joining the back end of lower one of injury No. 18. 21. Incised wound 4 x 1 x 1 c.m. oblique, over back of right forearm, with lower inner end 8 cm above wrist. All injuries showed contused edges.” 7. PW4 stated in evidence that all the injuries except injury Nos.8 and 11 could be caused by weapons like MO1 to MO3 (sword, 'vakkathi' and chopper) and injury No.8 could be caused by weapons like MO5 and MO6 (iron pipes). He also stated that injury Nos.1, 10, 14 and 18 were sufficient in the ordinary course of nature to cause death. PW4 stated that all injuries except injury Nos.7, 8, 11 and 13 are collectively sufficient to cause death. PW4 also stated that injury Nos.1, 4 and 7 could be caused by a single action with any one of the weapons, namely, MO1 to MO3, and injury Nos.15 and 16 could be caused by another single action with any one of the weapons, namely, M01 to MO3. 8. The place of occurrence is on the southern side of Moonnupeedika-lrinjalakuda public road. In Ext.P1 First Information Statement itself, the elder brother of the deceased mentioned the place of occurrence with precision. Ext.P4 scene mahazar also makes the position clear as to the place of occurrence. On the southern side of the spot where the incident occurred, the house of one Veliyath Balakrishnan is situated. In Ext.P1 First Information Statement itself, the elder brother of the deceased mentioned the place of occurrence with precision. Ext.P4 scene mahazar also makes the position clear as to the place of occurrence. On the southern side of the spot where the incident occurred, the house of one Veliyath Balakrishnan is situated. The defence tried to make out a case that the scene of occurrence is not as stated by the prosecution, by placing reliance on an alleged statement made by PW3 and PW18 to the police that the incident occurred in front of the house of Valuparambil Balakrishnan. The learned Sessions Judge rightly rejected this contention put forward by the defence and held that there is no confusion regarding the place of occurrence. 9. The only eye witnesses to the incident are PW3 and PW18. PW3 stated in chief examination that he knew the accused. PW3 was going to his friend's house. PW3 was working in Royal Studio. He saw accused Nos.2, 5 and 6 standing in the shade of a tree at the place of occurrence. Accused No.6 was having a packet in his hand. Accused Nos.3 and 4 were standing on the southern side of the road. PW3 stated that he went to the tea shop of Ajayan, situated near the place of occurrence, and at that time, accused Nos.1 and 7 were there in the tea shop. At that time, Salgunan, the deceased, went to the eastern side on his bicycle to measure the toddy in the toddy shop. Accused Nos.1 and 7 left the tea shop and went to the western side. The deceased, thereafter, was seen going to the western side while returning from the toddy shop. When PW3 got down from the tea shop, he saw accused Nos.2, 5, 6 and 7. Accused Nos.2 and 7 asked something to the deceased. The deceased stopped the bicycle. Accused Nos.2 and 7 restrained the deceased and accused No.2 attacked the deceased with a 'vakkathi'. Accused No.7 pushed down the bicycle of the deceased. Accused Nos.3 and 4 came near the deceased. Accused No.3 caused a cut injury on the deceased by a sword. Accused No.4 had beaten the deceased with an iron pipe. Accused Nos.5 and 6 also came to the place and they attacked the deceased with iron pipes. Accused No.2 stabbed the deceased with a 'vakkathi'. Accused Nos.3 and 4 came near the deceased. Accused No.3 caused a cut injury on the deceased by a sword. Accused No.4 had beaten the deceased with an iron pipe. Accused Nos.5 and 6 also came to the place and they attacked the deceased with iron pipes. Accused No.2 stabbed the deceased with a 'vakkathi'. Accused No.1 came running with a bag in his hand. After coming to the spot, he took out a chopper from the bag and caused cut injuries on the body of the deceased, after telling the deceased that: Thereafter, the accused left the place. PW3 identified the weapons of offence. 10. PW18 also narrated the incident in similar lines as spoken to by PW3 with slight variations here and there. However, on the material aspects of the incident, the evidence of PW3 and PW18 does not vary. PW18 knew accused No.1 and the deceased from her childhood. PW18, the deceased and accused No.1 are residents of the same locality. PW18 was aged 58 years at the time of giving evidence and she was working as a cook in a nearby school. 11. The court below believed PW3 and P18 and relied on their evidence to arrive at the conclusion that the appellant is guilty of the offence alleged against him. On going through the evidence in the case, oral and documentary, we are of the view that the court below was right in holding, relying on the evidence of PW3 and PW18, that the appellant committed the offence alleged against him. 12. The suggestion made by the defence to PW1 is that Salgunan died as a result of a fall from a coconut tree while tapping toddy. It was also suggested to PW1 that the legal representatives of the deceased had got insurance amount from the Toddy Workers Welfare Department stating that Salgunan died in an accident. On the basis of Ext.P3 postmortem report and the ante-mortem injuries noted in Ext.P3, it can be seen that the suggestion made by the defence about the cause of death of Salgunan is absolutely baseless. Even assuming that the legal representatives of the deceased had received some amount from the Toddy Workers Welfare Department, that is not a ground to hold that the death of Salgunan was as a result of the accident and not as a result of homicide. Even assuming that the legal representatives of the deceased had received some amount from the Toddy Workers Welfare Department, that is not a ground to hold that the death of Salgunan was as a result of the accident and not as a result of homicide. The evidence in the case would clearly indicate that Salgunan was murdered at the place of occurrence in an incident as narrated by the prosecution. 13. Learned counsel for the appellant submitted that the court below acquitted accused Nos.2 and 4 to 7 and, therefore, the substratum for invoking S.149 has vanished. The learned counsel submitted that, therefore, the appellant cannot be convicted for the offence invoking S.149 as well. The counsel submitted that in such a situation, the appellant/accused No.1 can at best be convicted for causing those injuries which are attributable to the attack made by him on the deceased. In other words, counsel submitted that if S.149 cannot be invoked, each one of the accused can be punished only for the individual acts committed by such accused. Counsel pointed out that the injuries caused by accused No.1 would not be sufficient to cause the death of the deceased and, therefore, S.302 would not apply at all in this case. It is submitted that at best, accused No.1 could be convicted under S.326 of the Indian Penal Code, if the Court comes to the conclusion that the evidence of PW3 and PW18 is reliable. 14. Learned Public Prosecutor submitted that in the present case, there were seven accused and the basic requirement for invoking S.149 is available. Accused Nos.2 and 4 to 7 were acquitted only on the ground that test identification parade was not conducted and PWs.3 and 18 did not know those accused before the occurrence. Learned Public Prosecutor submitted that the Court did not find that there was no unlawful assembly and that five or more accused did not participate in committing the offence. According to the learned Public Prosecutor, so long as it is established that the offence was committed by five or more persons in prosecution of their common object, S.149 can be invoked, even if some of the accused were acquitted on the ground that their identity was not established. Learned Public Prosecutor relied on the decision of the Supreme Court in AIR 1960 SC 289 and AIR 1963 SC 174 . 15. Learned Public Prosecutor relied on the decision of the Supreme Court in AIR 1960 SC 289 and AIR 1963 SC 174 . 15. It is well settled that when the charge is under S.149 of the Indian Penal Code, the presence of the accused as part of the unlawful assembly is sufficient for conviction, even if no overt act is imputed against him. 16. In Nethala Pothuraju & Ors. v. State of Andhra Pradesh (1992) 1 SCC 49 ), seven accused persons were tried for various offences including S.302 read with S.149 of the Indian Penal Code. The trial court convicted accused Nos.1 to 6 and acquitted accused No.7. On appeal, the High Court confirmed the conviction and sentence of accused Nos.1 to 3 and the conviction and sentence of accused Nos.4 to 6 were set aside and they were acquitted. Before the Supreme Court, it was contended that since four out of the seven accused were acquitted, the conviction of the appellants under S.148 and on applying S.149 of the Indian Penal Code cannot be sustained. The Supreme Court held that “the appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning S.141 I.P.C.”. The Supreme Court further held: “The question still remains as to whether the appellants can be convicted under S.302 read with S.34 I.P.C. Both S.149 and 34 I.P.C. deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non applicability of S.149 I.P.C. is, therefore, no bar in convicting the appellants under S.302 read with S.34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all.” The Supreme Court held the appellants guilty under S.302 read with S.34 I.P.C. 17. In Bharwad Mepa Dana & Anr. v. The State of Bombay ( AIR 1960 SC 289 ), a three Judge Bench of the Supreme Court considered a case where twelve accused persons were tried for offences including an offence under S.302 read with Sections 149 and 34 of the Indian Penal Code. The learned Sessions Judge acquitted seven out of the twelve accused and convicted and sentenced the other accused under S.302 read with S.149 and also under S.302 read with S.34 of the Indian Penal Code. The learned Sessions Judge acquitted seven out of the twelve accused and convicted and sentenced the other accused under S.302 read with S.149 and also under S.302 read with S.34 of the Indian Penal Code. Two of the accused were sentenced to death and three of the accused were sentenced to imprisonment for life. The convicted persons preferred appeal to the High Court. The appeal was considered with a reference case under S.374 of the Code of Criminal Procedure, 1898. The High Court confirmed the conviction and sentence of four of the convicted persons and set aside the conviction and sentence of accused No.8. It was contended before the Supreme Court that in view of the finding of the High Court which resulted in the number of convicted persons falling below the required number of five, there could be no case of any unlawful assembly and therefore, S.149 of the Indian Penal Code could not be invoked. The Supreme Court repelled that contention and held thus: “13. That does not, however, conclude, the matter. Nothing in law prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons, who together numbered more than five. We have advisedly said, “Nothing in law etc.”; for, whether such a finding can be given or not must depend on the facts of each case and on the evidence led. It is really a question of fact to be determined in each case on the evidence given therein. Learned counsel for the appellants has argued before us, as though it is a matter of law, that it was not open to the High Court to come to the finding to which it came, because the prosecution case was that thirteen named persons constituted the unlawful assembly. We are unable to accept this argument as correct. We do not think that there was any such legal bar as is suggested by learned counsel, though there may be cases where on the facts proved it will be impossible to reach a finding that the convicted persons less than five in number, constituted an unlawful assembly with certain other unspecified persons not mentioned in the charge. That consideration apart, any mere error, omission or irregularity in the charge will not invalidate the finding in this case as a matter of law. That consideration apart, any mere error, omission or irregularity in the charge will not invalidate the finding in this case as a matter of law. So far as the finding can be said to have traveled beyond the letters of the charge, the appellants have not proved any prejudice, and in the absence of prejudice no complaint can now be made of any defect in the charge. …….. …….. …….. …….. 18. .......... We have stated earlier what the finding in the present case is: it is a clear finding-a finding with certainty-that the number of persons who constituted the unlawful assembly was more than five, though the identity of four only has been established; and the killing was done in prosecution of the common object of the entire unlawful assembly. Therefore, we see no serious difficulty in applying S. 149, Indian Penal Code in the present case.” 18. The Supreme Court in Bharwad Mepa Dana and another v. The State of Bombay ( AIR 1960 SC 289 ), followed the decision of the Federal Court in Kapildeo Singh v. The King (1949 FCR 834 (AIR 1950 FC 80), wherein it was held thus: “The essential question in a case under S.147 is whether there was an unlawful assembly as defined in S.141, I. P. C, of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused, and even when it is possible to convict less than five persons only, S. 47 still applies, if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified. In the present case, there is such a finding and that concludes the matter.” 19. A Constitution Bench of the Supreme Court in Mohan Singh & Anr. v. State of Punjab ( AIR 1963 SC 174 ), considered the three Judge Bench decision in Bharwad Mepa Dana & Anr. In the present case, there is such a finding and that concludes the matter.” 19. A Constitution Bench of the Supreme Court in Mohan Singh & Anr. v. State of Punjab ( AIR 1963 SC 174 ), considered the three Judge Bench decision in Bharwad Mepa Dana & Anr. v. The State of Bombay ( AIR 1960 SC 289 ) and held thus: “11........The only difference is that according to the charge, all the members of the assembly were alleged to be known, whereas on the evidence the High Court has reached the conclusion that the identity of all the members of the assembly has not been established, though the number of the members composing the assembly is definitely found to be five or more. It is on this reasoning that this Court confirmed the conviction of the appellants under S.302/149. Thus, this decision illustrates how S. 149 can be applied even if two or more of the persons actually charged are acquitted.” 20. In ), five accused persons were charged with having committed offence under Sections 148, 302 read with S.149 as well as S.323 read with S.149 of the Indian Penal Code. The Sessions Judge acquitted two of the accused on the ground that the charges against them had not been proved beyond reasonable doubt. Three of the accused were convicted and sentenced for imprisonment for life. The conviction and sentence of the three accused persons were confirmed by the High Court. It was urged before the Supreme Court that since two out of the five accused were acquitted, S.149 of the Indian Penal Code could not have been invoked in the case. The Constitution Bench, on the facts of the case, accepted that contention but altered the conviction and sentence of the appellants under S.302 read with S.34 of the Indian Penal Code. The Constitution Bench in Mohan Singh & Anr. v. State of Punjab ( AIR 1963 SC 174 ), held thus: “13. That inevitably takes us to the question as to whether the appellants can be convicted under S.302/34. Like S.149, S.34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Like S.149, S.34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by S.34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of combination of persons sharing the same common intention is one of the features of S. 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of S.34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which S.34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention.” 21. In the present case, the learned Sessions Judge acquitted accused Nos.2 and 4 to 7 only on the ground that no test identification parade was conducted. However, the learned Sessions Judge, referring to the evidence of PW18 held thus: “It is true that she conceded that the accused 2 to 7 are not familiar to her earlier to the alleged incident. But that does not mean that A1 was not in the company of those accused for inflicting injuries to the deceased. The learned Sessions Judge also held: “Therefore it is convincingly proved that the first accused was the master brain behind the incident. But that does not mean that A1 was not in the company of those accused for inflicting injuries to the deceased. The learned Sessions Judge also held: “Therefore it is convincingly proved that the first accused was the master brain behind the incident. He was having the assistance of 6 other miscreants for inflicting injuries on the deceased so as to wreck vengeance against the deceased on account of the previous incident.” The learned Sessions Judge also held that accused No.1 was in the company of others. On a fair reading of the judgment of the learned Sessions Judge and also on considering the evidence on record, it is clear that there was an unlawful assembly and five or more persons participated in committing the offence. Even though the identity of the members constituting the unlawful assembly was not clearly found to be established and on that ground the learned Sessions Judge acquitted five out of the seven accused, there is a clear finding that there was an unlawful assembly consisting of seven persons including accused No.1. Even though the identity of all the persons constituting the unlawful assembly is not found to be established, it was held that members of an unlawful assembly in which accused No.1 was a party committed the offence. The offence of murder was committed in prosecution of the common object of the unlawful assembly and, therefore, S.149 I.P.C. is attracted. Even if some of the accused are acquitted and the number of the remaining accused falls short of five, that does not always mean that the remaining two accused should be acquitted. The relevant question is not whether after acquitting some of the accused, there remains five accused in order to constitute the unlawful assembly. The question is whether an unlawful assembly was constituted and an offence was committed by any member of that unlawful assembly in prosecution of the common object of that assembly or the members of the assembly knew to be likely to be committed in prosecution of the common object. Even if the identity of some of the accused forming part of the unlawful assembly is not established or even if one or more of the accused are acquitted granting benefit of doubt, that does not absolve the other accused from being proceeded against under S.149 of the Indian Penal Code. 22. Even if the identity of some of the accused forming part of the unlawful assembly is not established or even if one or more of the accused are acquitted granting benefit of doubt, that does not absolve the other accused from being proceeded against under S.149 of the Indian Penal Code. 22. It is clearly established that seven persons appeared at the scene of occurrence with lethal weapons and mercilessly assaulted and murdered the deceased. The facts and circumstances would clearly establish that the common object of the unlawful assembly was nothing but to commit murder of the deceased. We are of the view that the learned Sessions Judge was right in finding the appellant guilty of the offence. The sentence imposed on the appellant was also just and proper and no interference is called for. The Criminal Appeal is, accordingly, dismissed.