JUDGMENT : N. ANIL KUMAR, J. 1. The appellant in Crl. A. No. 1698/2010 along with 18 others were charge-sheeted by the Assistant Commissioner of Police, Calicut alleging offences punishable under Sections 143, 147, 148, 342, 427, 449 and 302 read with 149 of IPC. As the accused Nos. 2 and 14 died pending proceedings, others were tried by the court below in S.C. No. 566/2004 and the appellant was convicted and sentenced to various spells including life imprisonment. 2. The prosecution case in brief is as hereunder:- PW-4 Pankajakshi is the wife of deceased Chandrangathan. On 05.12.2000 at about 3.30 a.m. Chandrangathan, who was a sympathiser of Bharathiya Janatha Party (hereinafter referred to as BJP) was sleeping at the house of PW-4 and her mother PW-9 Kalyani, along with the child. While so, all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object, criminally trespassed into the residence of PW-4, wrongfully restrained Chandrangathan, committed mischief therein, dragged Chandrangathan to the courtyard and thereafter all of them caused injuries to Chandrangathan with weapons like billhook, axe and sword resulting in his death. PW-4 made a hue and cry, but nobody was prepared to take her husband to hospital as they were frightened with the threat from the accused. 3. On communication over wireless, PW-8 Sub-Inspector of Police, AR Camp, Kasaragod came to the scene of occurrence at 6 a.m. and took him to the Govt. Hospital, Koothuparamba where he was declared dead on arrival at the hospital. The body was then removed to General Hospital, Thalassery, where postmortem examination was conducted by Dr. Prajul K.P. as per Ext.P18 postmortem certificate. The said Doctor, who conducted the postmortem on the body of the deceased, was not available for giving evidence. Hence, PW-18 Doctor-Rajan, Asst. Surgeon, General Hospital, Thalassery was examined to prove Ext.P18 postmortem certificate. 4. PW-1 is a close relative of deceased Chandrangathan. On 05.12.2000 while he was on his way to the temple at about 7.30 a.m. he came to know of the incident and rushed to the house of PW-4. He had discussion with PW-4 Pankajakshi. Accordingly, he lodged Ext.P1 FIS before the Station House Officer, Koothuparambu Police Station. 4. PW-1 is a close relative of deceased Chandrangathan. On 05.12.2000 while he was on his way to the temple at about 7.30 a.m. he came to know of the incident and rushed to the house of PW-4. He had discussion with PW-4 Pankajakshi. Accordingly, he lodged Ext.P1 FIS before the Station House Officer, Koothuparambu Police Station. On the basis of Ext.P1 FIS, the police registered Ext.P1(a) FIR on 05.12.2000 at 9.30 a.m. Ext.P1 would reveal that PW-1 enquired with PW-4 Pankajakshi regarding the occurrence and she told him that somebody assaulted her husband by inflicting injuries on him at her residence in the night. Number of assailants were not given in Ext.P1 FIS. Hence PW-21 registered Ext.P1(a) FIR for offences punishable under Sections 143, 147, 148, 450, 427 and 302 read with 149 IPC against a group of Communist Party of India (Marxist) [hereinafter referred to as ‘CPI(M)’] workers. 5. On 05.12.2000, PW-23 the Circle Inspector of Police, Koothuparamba Police Station took over investigation and prepared Ext.P2 inquest on the body of the deceased at Govt. Hospital, Thalassery. Column No. 11 in Ext.P2 is with reference to the apparent cause of death. In column No. 11, PW-23 stated that the victim succumbed to the injuries sustained by him as a result of an assault with sword and billhook. PW-23 recorded in Ext.P2 that deceased being a BJP man and on the previous night there were skirmishes between BJP and CPI(M) which resulted in the occurrence and led to the death of the victim. PW-21 took over the investigation in this case as per the proceedings of the Director General of Police immediately thereafter. He prepared Ext.P3 mahazar on 08.12.2000 under which MOs.1 to 11 were seized. According to him, he questioned the witnesses on 06.12.2000 and 07.12.2000 respectively. However, he did not record the statement of PWs. 4 and 9, though they had witnessed the occurrence. On 09.12.2000 for the first time, PWs. 4 and 9 were questioned by PW-21. On the basis of their statements, PW-21 proceeded with the investigation and laid charge sheet against accused 19 in number including the appellant as accused No. 1. 6. In the final report, the prosecution alleged that the motive behind the crime was political animosity between the assailants and the victim. 4 and 9 were questioned by PW-21. On the basis of their statements, PW-21 proceeded with the investigation and laid charge sheet against accused 19 in number including the appellant as accused No. 1. 6. In the final report, the prosecution alleged that the motive behind the crime was political animosity between the assailants and the victim. PW-4 married the victim who was an active worker of the BJP and after marriage PW-4 severed connection with CPI(M) and therefore the leaders of the CPI(M) in the locality were hostile towards the victim and PW-4. The political clashes at Thalassery were made use of by the accused to do away with the victim. 7. The learned Judicial First Class Magistrate, Koothuparamba numbered the final report as C.P. No. 124/2001 and after complying with the usual formalities, the case was committed to the Sessions Court, Thalassery for trial and disposal. The learned Sessions Judge took cognizance of the offence punishable under Sections 143, 147, 148, 449, 427, 342 and 302 read with Section 149 of the IPC and numbered the case as S.C. No. 566/2004. 8. During the course of trial, prosecution examined PWs. 1 to 23 and marked Exts.P1 to P18 and MOs.1 to 11 series on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313 (1)(b) of Cr.P.C. Their defence was one of total denial. 9. The learned trial Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. Hence the accused were called upon to enter on their defence. However, no defence evidence was adduced. 10. After the trial, the learned Sessions Judge convicted the 1st accused for the offence under Sections 143, 147, 148, 427, 342, 449, 302 read with 149 of the IPC and he was sentenced to undergo imprisonment for life under Section 302 read with Section 149 of IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo simple imprisonment for a further period of one month under Section 449 read with Section 149 IPC. 5,000/- in default of payment of fine to undergo simple imprisonment for a further period of one month under Section 449 read with Section 149 IPC. He was also sentenced to undergo rigorous imprisonment for six months each for the offence punishable under Sections 143, 427 and 342 read with Section 149 IPC and to undergo rigorous imprisonment for one year for the offence punishable under Section 148 IPC and aforesaid sentences were directed to run concurrently. 11. Feeling aggrieved by the conviction and sentence, the 1st accused preferred Crl. A. No. 1698/2010. Aggrieved by the order of acquittal passed against accused Nos.3 to 12 and 15 to 19, PW-4 being the aggrieved as wife of the deceased as envisaged under Section 2(w)(a) of Cr.P.C. filed Crl. A. No. 1793/2011 under the proviso to Section 372 of Cr.P.C. 12. Heard Sri. K.S. Madhusoodanan, learned counsel for the appellant in Crl. A. No. 1698/2010, Sri. S. Rajeev, the learned counsel for the appellant in Crl. A. No. 1793/2011 and Sri. S.U. Nazar, learned Senior Public Prosecutor. 13. Challenging the appreciation and evidence recorded by the learned Sessions Judge, the learned counsel for the appellant Sri. K.S. Madhusoodanan submitted that PW-21 the Investigating Officer has not explained away the delay in recording the statements of PW-4 and PW-9 although they were very much available at their residence. PW-23 who conducted inquest on the body of the deceased was very well aware that the victim had suffered a homicidal death on account of a political clash at the residence of PW-4 on the date of occurrence, it has been submitted. The learned counsel further argued that no reliable evidence was adduced to prove the source of light at the place of occurrence. It is also contended that the Investigating Officer failed to recover the weapons alleged to have been used by the accused to commit the occurrence. The learned counsel further submitted that the medical evidence discredits the prosecution evidence to prove the weapon alleged to have been used to commit the occurrence. He also contended that the motive to commit the crime was not proved. In support of his contention that the trial court was not justified in convicting the accused under Sections 143, 147, 148, 342, 449 and 302 read with 149 of IPC, the learned counsel relied on the oral evidence of PWs. He also contended that the motive to commit the crime was not proved. In support of his contention that the trial court was not justified in convicting the accused under Sections 143, 147, 148, 342, 449 and 302 read with 149 of IPC, the learned counsel relied on the oral evidence of PWs. 1, 4 and 9 and contended that there is no evidence to prove unlawful assembly and house trespass in the night to commit murder as alleged by the prosecution. 14. On the other hand, Sri. S. Rajeev, learned counsel for the appellant in Crl. A. No. 1793/2011 contended that the deceased was attacked and brutally murdered in the presence of PWs. 4 and 9 who are the wife and mother-in-law of the deceased respectively. It is his contention that without any delay, the FIS was given wherein the details regarding the incident and name of the assailants were stated by PW-1. According to the learned counsel, the presence of PWs. 4 and 9 were established beyond doubt and their evidence clearly identified the accused specifying the overtacts committed by them. Despite the identification and clear evidence regarding the involvement of all the accused, on an erroneous appreciation of facts, the court below discarded the evidence of prosecution witnesses who deposed in tune of the prosecution case and identified all the accused, it is submitted. It is further submitted that the accused brutally murdered the victim and the body contained 47 injuries and the occurrence was supported by PWs. 4 and 9. Thus it is submitted that court below erred in acquitting accused Nos. 3 to 12 and 15 to 19 on insufficient grounds. 15. The State has not preferred any appeal challenging the order of acquittal. Sri. S.U. Nazar, learned Senior Public Prosecutor appearing on behalf of the State submitted that the prosecution has proved unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object, the 1st accused along with other accused committed criminal trespass in the night at the residence of PW-4 and murdered the victim out of political enmity. PWs. 4, 7 and 9 are natural witnesses to the occurrence and nothing is brought out in cross-examination to discredit the evidence tendered by them who had occasion to witness the occurrence on the fateful day. PWs. 4, 7 and 9 are natural witnesses to the occurrence and nothing is brought out in cross-examination to discredit the evidence tendered by them who had occasion to witness the occurrence on the fateful day. The learned Public Prosecutor denied the submission of the learned counsel for the appellant that the 1st accused was not a member of the unlawful assembly to commit the murder of the victim as alleged by the prosecution. Heavy reliance is also placed on the postmortem certificate. 16. Ext.P18 postmortem certificate was marked through PW-18 the Doctor, who was familiar with the signature of the Doctor, who conducted postmortem examination. PW-22, the Police Surgeon and Professor of Forensic Medicine attached to Pariyaram Medical College was examined to prove the contents in Ext.P18 postmortem certificate. In Ext.P18 postmortem certificate, 47 antemortem injuries were noted. Those injuries are specifically stated in paragraph 7 of the judgment pronounced by the court below. PWs. 18 and 22 adduced evidence to show that the deceased died due to the injuries to the major vessels of extremities. PW-22 further opined that Injury Nos. 10, 11, 16, 18, 20, 25, 27, 28, 30, 31, 34, 35, 36, 37 and 44 were severe injuries which resulted in the death of the person. For the disposal of these appeals, we think, it is appropriate to narrate the above injuries stated in Ext.P18 as follows:- “(10) Incised wound 9 x 2½ over the extensor aspect of (R) wrist extending to (R) hand with fracture of ulna and carpal bones. (11) Incised wound 4½ x 1½ c.m. over the dorsum of (R) hand with fracture of 2nd metatarsal head, obliquely placed. (16) Incised gaping wound 2 x 1 x 2 c.m. over the posterior aspect of (L) arm 7 cm. above (L) olecranon with fracture of humerus. (18) Incised gaping wound 4 x 2 c.m. with cut of extensor tendon and partial cut of ulna 3 c.m. deep. (20) Transversely incised gaping wound 4 x 3 c.m. over the extensor aspect of (L) forearm (distal) with fracture of radius and ulna. (25) Incised gaping wound 5 x 1 c.m. transverse partially cutting the tibia 5 c.m. below the (L) tibial tuberosity. (27) Transverse incised gaping wound 5 x 3 c.m. with medial aspect of (L) leg 10 c.m. above the medial malleoli - with partial cut of tendon and tibia 3 cm deep. (25) Incised gaping wound 5 x 1 c.m. transverse partially cutting the tibia 5 c.m. below the (L) tibial tuberosity. (27) Transverse incised gaping wound 5 x 3 c.m. with medial aspect of (L) leg 10 c.m. above the medial malleoli - with partial cut of tendon and tibia 3 cm deep. (28) Transverse lacerated wound 11 x 6 c.m. over the posterolateral aspect of (L) leg just above the lateral malleolus with cutting the fibula and partial cut of tibia and tendo Achilles. (30) Gaping incised wound 6 x 1½ c.m. over the lateral aspect of ® leg above the lateral malleolus with cut of tendon. (31) Transverse incised gaping 12 x 4 c.m. over the postero aspect 4½ c.m. above the wound No. 30 with partial cut of (R) fibula. (34) Incised gaping 8 x 3.5 c.m. transversely placed with cut of muscles and fibula (R) 5 c.m. deep. (35) Incised wound 3 x 1½ x 4 c.m. over the lateral aspect of (R) leg 2 c.m. below and lateral to tibial tuberosity. (36) Oblique incised wound with gaping 5 x 2 c.m. over the lateral aspect of (R) patella-4 cm deep. (37) Incised gaping wound oblique 6 x 3½ x 3 c.m. posterior to ® knee joint with cut of muscles penetrating the knee joint. (44) Transversely incised gaping wound 4 x 2½ x 7 c.m. deep over the medial aspect of (R) leg 10 c.m. below the (R) knee joint.” 17. PWs. 18 and 22 adduced evidence to show that the above injuries suffered by the victim are sufficient in the ordinary course of nature to cause death of the victim. In fact, there is no serious dispute touching the cause of death of the deceased. Indisputably, the victim suffered a homicidal death. 18. As indicated earlier, the occurrence in this case was on 05.12.2000 at 3.30 a.m. PWs. 4 and 9 are the wife and mother-in-law of the victim. PW-4 has filed an appeal before this Court challenging the acquittal against the other accused in this case. PW-1 who is a close relative of PW-4 went to the residence of PW-4, collected information from her, went to the Police Station and gave the First Information Statement to PW-21 without naming the assailants. Going by the oral evidence of PW-1, it is very clear that he is closely related to PW-4. PW-1 who is a close relative of PW-4 went to the residence of PW-4, collected information from her, went to the Police Station and gave the First Information Statement to PW-21 without naming the assailants. Going by the oral evidence of PW-1, it is very clear that he is closely related to PW-4. When he went to the residence of PW-4 immediately after the occurrence, he was aware of the fact that Chandrangathan was murdered by the assailants. Naturally, a question would arise who had murdered Chandrangathan. Had the assailants been known to PW-4 and PW-9 earlier, they would have revealed the same to PW-1 on the date of occurrence itself. PW-1 did not reveal the name of the assailants to PW-21 when his statement was recorded by him. Ext.P1 does not contain the name of the assailants. PW-23 who prepared Ext.P2 inquest report immediately after the occurrence had conducted preliminary enquiry regarding the apparent cause of death of the victim. He had come to a conclusion that it was political in nature. He did not also get any clue regarding the name of assailants on the date of conducting inquest. It is difficult to believe that PW-23 had conducted inquest secretly without knowing anyone including the relatives of PWs. 4 and 9. On a perusal of the evidence of PW-1, it is revealed that on his way to the temple at about 7.30 a.m. on 05.12.2000, he came to know the incident and rushed to the house of the victim. He enquired with PW-4 Pankajakshi regarding the death of Chandrangathan. According to PW-1, PW-4 did not tell him the name of the assailants. She told him that somebody injured her husband. Hence the only inference which could be inferred by this Court is that PW-1 informed the police implicating a group of CPI(M) workers as accused. 19. PW-21 the Assistant Commissioner of Police investigated the case by preparing Ext.P3 scene mahazar under which he seized MOs.1 to 11. We have been taken through the entire documents, oral and documentary evidence adduced by the prosecution witnesses at length. PWs. 4 and 9 gave statements to PW-21 on 09.12.2000 naming the assailants for the first time though they knew them from their childhood. When PW-1 was questioned against the delayed statements, he made an attempt to explain that PWs. We have been taken through the entire documents, oral and documentary evidence adduced by the prosecution witnesses at length. PWs. 4 and 9 gave statements to PW-21 on 09.12.2000 naming the assailants for the first time though they knew them from their childhood. When PW-1 was questioned against the delayed statements, he made an attempt to explain that PWs. 4 and 9 were under a shock and they were not mentally fit to give statements. But PWs. 4 and 9 have no such case of any mental shock as disclosed by PW-1. On cross-examination, PW-21 had no direct knowledge of the mental condition of PWs. 4 and 9. On a perusal of the prosecution case, it is disclosed that on 05.12.2000 at about 3.30 a.m. the 1st accused along with 18 others broke open the door, dragged the victim, who was sleeping at PW-4's house, to the courtyard and inflicted injuries with an axe, hatchet and sword resulting in his death. On inference from the skirmishes on the previous night between two warring groups, PW-1 lodged Ext.P1 before PW-21. It is difficult for us to believe that in an orderly society where rule of law is the prime consideration, no enquiry has been conducted by the law enforcing agency regarding the name of the assailants until 09.12.2000. We are persuaded to think that PWs. 4 and 9 were not aware of the names of assailants immediately after the occurrence. Had it been known to them, they would have revealed the same to PW-1 when he visited the house of PW-4 immediately after the occurrence. It is difficult to believe that PWs. 4 and 9 were under stress to disclose the name of assailants to PW-1 or to the law enforcing agencies. There is nothing on record to show that PWs. 4 and 9 underwent treatment in connection with mental stress or shock as spoken to by PW-1. In the above backdrop, let us examine the evidence tendered by PWs. 4, 7 and 9. 20. PWs. 4 and 9 testified that some of the accused had torches in their hands and there was MO3, the kerosene lamp at the residence and one of the accused had fixed a light on his head. In addition to the same, moon light was also present. In this connection, it may be noted that the prosecution has no case that the house was electrified. In addition to the same, moon light was also present. In this connection, it may be noted that the prosecution has no case that the house was electrified. Going by the testimony of PWs. 4 and 9, they have claimed to have seen the assailants in the light of MO3 kerosene lamp. Assuming for arguments sake, that the kerosene lamp was placed as alleged by the prosecution, it has come to our notice that evidence tendered by PWs. 4 and 7 do not tally with such a proposition. According to PW-4, MO3 was placed towards the Western cot. However, PW-7 stated that the same was fixed at the Southern wall. Further, when PW-21 recorded the statements of PWs. 4 and 7 as provided under Section 161 of Cr.P.C. there was no mention of any torch or headlight in the possession of the accused as deposed by them before court. PW-16 the Village Officer who prepared Ext.P11 testifies the availability of three bed rooms adjoining the Southern part of the room where the occurrence took place. Since at least two bed rooms adjoining towards the South of the room were kept vacant apart from office and dining rooms, it is difficult for us to believe that the occurrence took place inside the room in the manner as alleged by the prosecution. Going by the nature of the building and the evidence let in, the source of light is not proved. 21. PW-4, who is the wife of the deceased, deposed that on 04.12.2000, they celebrated the first birthday of the child. She further stated that her husband Chandrangathan was not physically well on that day and they instructed PW-7, a close relative of them to stay at home as a precautionary measure to take Chandrangathan to the hospital, if deemed necessary. It is the prosecution case that on 04.12.2000 late in the night at 10 pm, they went to sleep and after an hour, Chandrangathan was found disturbed consequent to fever and was brought to bed where PW-4 was sleeping. In the early hours at about 3 a.m. on 05.12.2000, according to PW-4, she heard a sound on the front door. According to PW-4, while so, the 1st accused with a sword entered the house along with 5-10 persons. According to her, some of them entered the house along with accused No. 1 and others waited outside. In the early hours at about 3 a.m. on 05.12.2000, according to PW-4, she heard a sound on the front door. According to PW-4, while so, the 1st accused with a sword entered the house along with 5-10 persons. According to her, some of them entered the house along with accused No. 1 and others waited outside. The main overtact alleged is that the 1st accused tried to drag out Chandrangathan from the room and made an attempt to assault Chandrangathan with a sword. While so, PW-4 prevented accused No. 1 from assaulting her husband. It is her case that from the veranda, they had dragged her husband to the courtyard and thereafter accused Nos. 1, 2, 4, 10 and 14 inflicted injuries on the body of her husband with weapons in their possession. She also stated that accused Nos. 1, 2, 4, 10 and 14 repeatedly assaulted her husband with weapons in their hands. She further stated that although she sought help of some of the neighbours, they did not extent any help to get her husband admitted for treatment. According to her, by 6 a.m. in the morning police came there and her husband was taken to the hospital. 22. At the courtyard, PW-4 attributed overtact against A1, A2, A4, A10 and A14. Of them, A2 and A14 died pending trial. According to PW-4, A10 and A14 had used an axe to attack the deceased. However, going by the evidence of PW-18, Dr. Rajan who was examined and marked Ext.P18 postmortem certificate in lieu of Dr. K.P. Prajul, who is stated to be working abroad, testified that injury Nos. 1 to 3, 5 to 9, 12, 13, 21 to 23, 45 and 46 could be caused with a knife. In this connection, we have gone through the evidence of PW-22 Dr. S. Gopalakrishnapillai, the Professor of Forensic Medicine and Police Surgeon attached to Pariyaram Medical College as an expert presumably for the reason that PW-18 is not an expert to speak of the features of axe/billhook injuries. According to PW-22, injury Nos. 1 to 9, 12, 13, 16, 17, 21, 22, 29, 32, 35, 39 and 40 to 42 could be inflicted with a light sharp cutting weapon like knife. It is a fact that PWs. 4 and 9 have no case that the assailants assaulted the victim with a knife. According to PW-22, injury Nos. 1 to 9, 12, 13, 16, 17, 21, 22, 29, 32, 35, 39 and 40 to 42 could be inflicted with a light sharp cutting weapon like knife. It is a fact that PWs. 4 and 9 have no case that the assailants assaulted the victim with a knife. PW-22 further stated that no vital organs of the body appeared to have been cut. Accordingly, cutting with a hatchet is also ruled out. In view of the evidence tendered by the medical witnesses, we are of the view that weapons like hatchet, axe and billhook alleged to have been used are ruled out. In fact, the case of PW-4 that the accused inflicted injuries with an axe or billhook is not proved. 23. PW-4 adduced evidence to show that before her marriage with Chandrangathan, she was an active worker of CPI(M). Chandrangathan was an ardent BJP follower. According to PW-4, subsequent to the marriage, she severed her connection with CPI(M) for which the CPI(M) leaders were on inimical terms with her mainly on the ground that she had severed her allegiance to the party at the instigation of Chandrangathan. PW-4 stated that since CPI(M) was ruling the State at the time and all the accused belonged to the CPI(M), the police did not investigate the case properly and she testified that she realized these facts only recently. On going through her evidence, there are material omissions and contradictions. PW-21 testified before the court below during cross-examination that the statement recorded by him was read over to PW-4 and she admitted it to be correct. During cross-examination, he further stated that when she was questioned, she did not state the details of the weapons used by the accused separately. She also did not state to PW-21 that A3, A4 and A14 assaulted the victim when A1 dragged the victim into the courtyard. She further stated in cross-examination that she did not state specifically who had inflicted injuries on the victim. Admittedly, she did not state the names of the assailants before PW-21. Besides, she did not state that apart from A1, A3, A10 and A14 dragged her husband outside. She had no case that she witnessed the occurrence with the help of headlight and moon light. Admittedly, she did not state the names of the assailants before PW-21. Besides, she did not state that apart from A1, A3, A10 and A14 dragged her husband outside. She had no case that she witnessed the occurrence with the help of headlight and moon light. It is her specific case during cross-examination that she came to know the name of the assailants when A1 to A14 were arrested on 08.12.2000. Further, she has not offered any explanation for not questioning her in connection with the case before 09.12.2000. According to her, the final report was filed by PW-21 after UDF regime. However, PW-4 did not raise any complaint before the court after lodging the final report. No protest complaint was filed before the jurisdictional Magistrate court complaining that her statement was not recorded by PW-21 the way she spoke to him. Curiously enough, she filed an appeal challenging the acquittal raising allegation against PW-21 after pronouncing judgment by the trial court in this case. 24. Going by the evidence of PW-4 and PW-21, PW-4 has no case that all the accused who participated in the occurrence were armed with deadly weapons. She did not state the alleged extortion of A1 to drag the victim. She also did not state to PW-21 that along with A1, all the accused were instrumental in dragging out the victim from the room. In view of the evidence let in by PW-4, there is no reliable evidence to hold that A1 to A5, A9 to A12 and A14 attacked the victim at the courtyard armed with deadly weapons. 25. PW-9-the mother-in-law of the victim identified A1, A3, A4, A5, A8 to A12 before court. According to her, A2 had a billhook in his hand and accused No. 1 had possessed a sword and accused No. 14 was armed with an axe. PW-7 turned hostile to the prosecution. However, he stated that on the date of the incident, he heard a banging sound on the door and a hue and cry made by PWs. 4 and 9. Although PW-9 supported the version of PW-4, on a careful examination of the evidence, the material contradictions made by PW-4 is equally applicable to PW-9 as well so far as her statement before the Investigating Officer is concerned. 26. Section 141 of IPC defines unlawful assembly to be an assembly of five or more persons. 4 and 9. Although PW-9 supported the version of PW-4, on a careful examination of the evidence, the material contradictions made by PW-4 is equally applicable to PW-9 as well so far as her statement before the Investigating Officer is concerned. 26. Section 141 of IPC defines unlawful assembly to be an assembly of five or more persons. They must have a common object inter-alia to commit any mischief or criminal trespass or other offence. For resorting to the provisions of Section 149 of IPC, the prosecution has to establish that: (i) there was an unlawful assembly of five persons; (ii) the assembly had a common object and (iii) the said common object was to consist one or more of the five illegal objects specified in Section 141 of IPC. Going by Ext.P1 statement, we find it difficult to understand how Section 141 of IPC has been incorporated in Ext.P1(a) without knowing any of the details of the assailants or at least the number of participants alleged to have participated in the occurrence. The police who conducted Ext.P2 inquest report did not make any attempt to find out the name and details of assailants who participated in the occurrence. They did not make any attempt to question PWs. 4 and 9 before 09.12.2000. It is difficult for us to believe that on 09.12.2000 PWs. 4 and 9 disclosed the name and details of the accused involved in the case to PW-21 and thereafter the investigation was proceeded implicating them as accused and arrested them in connection with this case accordingly. 27. PW-21 the Assistant Commissioner of Police who conducted investigation in this case prepared Ext.P3 mahazar and seized MOs.1 to 11 from the scene of occurrence. However, PW-21 did not make any attempt to recover the weapons alleged to have been recovered from the scene of occurrence. Although the accused were arrested, no earnest attempt was made to recover the weapons based on the information furnished by the accused. Non recovery of material objects including the weapons alleged to have been used by the accused has cut the root of the prosecution case. 28. Immediate omission allegedly made by the inmates of the house to name any of the assailants is a circumstance against the prosecution. Non recovery of material objects including the weapons alleged to have been used by the accused has cut the root of the prosecution case. 28. Immediate omission allegedly made by the inmates of the house to name any of the assailants is a circumstance against the prosecution. It has come out in evidence that in the early morning around 3.30 a.m. on the date of occurrence, PW-4 went to the house of PW-5 seeking help. However, according to PW-5, PW-4 did not name any of the names to PW-5. In the early morning at 6 a.m. PW-8 the Sub-Inspector of Police, Armed Reserved Police and party came to the house of PW-4 on a wireless message. PW-8 could not get any name of assailants from PWs. 4 and 9. PW-6, one of the neighbours of PW-4 came to her house around 7 a.m. Neither PW-4, nor did PW-9 tell the name of any assailants to him. In view of the circumstances as stated above, we are of the view that the witnesses who did not immediately disclose the identity of the assailants to the persons who assembled there; nor the victim's own brother who lodged Ext.P1(a) before the police could not be relied on for conviction as held in Panda Nana Kare vs. State of Maharashtra, AIR 1979 SC 697 . The delay in disclosing the name of the assailants before the Investigating Officer has not been explained by PW-4 and PW-9. Further, PW-9 even in her belated statement to PW-21 after 4 days marked as Ext.D4 series contradictions, she stated that she was confined at the room till all the assailants left the scene of occurrence. She did not state in her statement the presence of any assailants at the courtyard. However, when she was examined before court she improved her case as if she had witnessed the occurrence at the courtyard by standing at the veranda. The evidence of PWs. 4 and 9 are totally unacceptable. It is not possible to place any reliance on the testimony of PW-4 and PW-9 who say during trial that PW-4 and PW-9 told the name of the assailants immediately after the occurrence to PW-21. If this version is true, the name of the assailants would have been known to everybody and there could be no explanation for the names of the assailants not being known to PW-1. 29. If this version is true, the name of the assailants would have been known to everybody and there could be no explanation for the names of the assailants not being known to PW-1. 29. The learned counsel for the appellant in Crl. A. No. 1793/2011 contended that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused. According to the learned counsel, the learned Sessions Judge acquitted accused Nos. 3 to 12 and 15 to 19 for the charges levelled against them on irrelevant consideration. The most important witnesses are PWs. 4 and 9. Since it is undisputed that the murder of Chandrangathan took place at the residence of PW-4, no court can possibly ignore the importance of the inmates of the house. PWs. 4 and 9 were present at home when the occurrence took place. As discussed earlier, what PWs. 4 and 9 have deposed before the court is diametrically opposite with the narration of the prosecution case and the case put forth by PW-21 the Investigating Officer. The learned Sessions Judge before whom the entire evidence was adduced found that the evidence let in by PW-4 and PW-9 is not trustworthy and, therefore, acquitted all other accused except A1. On going through the entire evidence, there is nothing on record to indicate that the other accused had in fact participated in the occurrence. No scientific evidence was adduced to prove the occurrence. In view of the above circumstances, the learned Sessions Judge, who arrived at the above conclusion, had rightly acquitted the accused. 30. On going through the entire evidence, we are of the view that the investigation conducted by PW-21 is defective. PW-21 has retired from service. Considering the facts and circumstances of the case, we think, it is appropriate on our part to examine as to whether there is any lapse on the part of the Investigating Officer and whether due to such lapse, investigation is faulty. The law on this issue is very much that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such design or negligent investigations or to the omissions or lapses, no doubt, the faith and confidence of the people in the criminal administration of justice would be jeoparadised. In Crl. The law on this issue is very much that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such design or negligent investigations or to the omissions or lapses, no doubt, the faith and confidence of the people in the criminal administration of justice would be jeoparadised. In Crl. A. No. 1793/2011, the learned counsel for the appellant alleged that there has been negligence on the part of the investigating agency which resulted in defective investigation and consequent acquittal. Under the circumstances, there is a corresponding duty on the part of the court to examine the evidence in detail to find out whether such lapses affected the object of finding out the truth. Even if the investigation is illegal, the level of the investigating officer ruling the roost is not permissible in law. Chandrakant Luxman vs. State of Maharashtra, AIR 1974 SC 220 , Ram Bihari Yadav vs. State of Bihar, AIR 1998 SC 1850 , Paras Yadav vs. State of Bihar, AIR 1999 SC 644 and State of Karnataka vs. K. Yarappa Reddi, AIR 2000 SC 185 . 31. We have no hesitation to hold that the investigation is defective since the statement of the inmates of the residence were not recorded immediately after the occurrence. The weapons alleged to have been used to inflict injuries on the victim has not been recovered in accordance with law. No scientific evidence was collected from the scene of occurrence immediately after the occurrence. Direct testimony of the witnesses was not recorded properly. The scene of occurrence was not guarded properly. The FIS was recorded in a perfunctory manner. It has not been explained by the prosecution as to why the number of assailants were not stated in Ext.P1 FIS. A group attack on the victim is not a decisive factor to infer common object of the unlawful assembly. Common object has to be ascertained from the membership, the weapons used and the nature of injuries as well as other surrounding circumstances. Going by the materials collected during investigation and the evidence let in before court, there is no material to ascertain the number of actual assailants, the weapons used and the nature of the injuries sustained by the victim. Going by the materials collected during investigation and the evidence let in before court, there is no material to ascertain the number of actual assailants, the weapons used and the nature of the injuries sustained by the victim. Further the evidence of medical witnesses who conducted postmortem on the body of the victim would show that the injuries sustained by the victim do not tally with the weapons alleged to have been used for committing the occurrence. From the records, we find that it is not possible for us to brand A1 as the principal offender in this case. It is also not possible to hold that other members may be constructively liable for the offence as alleged by the prosecution. The whole prosecution case is clouded with suspicion. The learned Sessions Judge has discussed the evidence let in by the prosecution, particularly the evidence of the eye witnesses with clarity in thoughts and expressions and we see no justification for embarking upon a challenge against acquittal. The evidence of PW-4, the principal eye witness of which the relevant circumstances were brought to our notice by Sri. K.S. Madhusoodanan, the learned counsel for the appellant coupled with the evidence of PW-9, the mother of PW-4 would inter-alia prove beyond doubt that the order of acquittal rendered by the trial court is probable and must be upheld. 32. The trial court has acquitted A3 to A12 and A15 to A19 on the ground of insufficient evidence. The State has not filed an appeal challenging the acquittal. After the amendment in Section 378 Cr.P.C. a victim also has the right to file such an appeal. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , it is held by the Supreme Court that the appellate court has vast power in appeal. It has jurisdiction to re-appreciate or reconsider the entire evidence on record. To put it differently, aggrieved is entitled to produce all evidence to re-appreciate the case before the appellate court. However, the settled principle is that the appellate court should not disturb the finding of an acquittal if two conclusions are possible from the record of the case and the trial court has taken a probable view. Luna Ram vs. Bhupat Singh and Others, (2009) 3 SCC 749 . However, the settled principle is that the appellate court should not disturb the finding of an acquittal if two conclusions are possible from the record of the case and the trial court has taken a probable view. Luna Ram vs. Bhupat Singh and Others, (2009) 3 SCC 749 . Going by the entire evidence, we are of the view that the order of acquittal cannot be altered as no manifest illegality is brought out. The decision of the court below is not perverse. It is well settled law that an appeal against acquittal seeking to set aside the judgment of the trial court, the High Court does not, in the absence of perversity upset findings arrived at by the trial court. It is not for the appellate court to re-analyse and reinterpret the evidence on record in a case where the trial court has come to a probable conclusion. On going through the impugned judgment, we are of the view that the trial court went wrong in convicting A1 on the basis of the evidence let in by PWs. 4 and 9. In fact, the presence of A1 and all other accused are not proved in evidence. It is true that the court is competent to convict an accused with the aid of Section 149 of IPC provided the prosecution is able to prove that one of the accused along with other unidentified accused (5 or more persons) formed into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object committed the occurrence. In the case on hand, there is no evidence to show that five or more persons constituted an unlawful assembly on the date of occurrence and other requirements of the said Section as to the common object of the person composing that assembly are satisfied. There is also no evidence to show that the said assembly consisted of five or more persons having one of the five specified objects as their common object. In Suresh vs. State of Kerala, 2006 (1) KLT 78 , a Division Bench of this Court held that the conviction of the accused for the offence under Section 148 of the IPC without a finding that those who were so convicted were armed with deadly weapon is unsustainable. In Suresh vs. State of Kerala, 2006 (1) KLT 78 , a Division Bench of this Court held that the conviction of the accused for the offence under Section 148 of the IPC without a finding that those who were so convicted were armed with deadly weapon is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly. 33. We are aware of the fact that this Court may not be justified in making observations against the investigating officer without hearing him unless it is necessary for the disposal of the case. However, in this case, the facts would reveal that PW-21 was careless in discharging his official duties. There is evidence to show that the Officer had conducted the investigation in a perfunctory manner. The superior officers who were expected to supervise serious offence like murder had not taken any steps to remedy the situation. It is difficult for us to believe that PW-21 waited for four days to record the inmates of the house where the occurrence took place. Criminal law was set in motion immediately after the occurrence. The police party arrived at the scene of occurrence and took the injured to the hospital. Inquest was also conducted. However, no attempt was made to trace out the name of the assailants. PW-21 recorded Ext.P1 statement of PW-1 in a casual manner. He did not ask sufficient information from the informant touching the occurrence. No attempt was made to collect scientific evidence from the place of occurrence. It could not be treated as an inadvertent omission on the part of the investigating officer. No attempt was made to recover the weapon alleged to have been used to commit the occurrence. Statements of the witnesses were not recorded properly. The conduct of PW-21 is directly in question before this Court and the evidence on record bearing on the conduct of PW-21 justifying the remarks stated above. Such negligence or omission on the part of PW-21 may give rise to reasonable doubt which would obviously go in favour of the accused. Statements of the witnesses were not recorded properly. The conduct of PW-21 is directly in question before this Court and the evidence on record bearing on the conduct of PW-21 justifying the remarks stated above. Such negligence or omission on the part of PW-21 may give rise to reasonable doubt which would obviously go in favour of the accused. We make it clear that the case against the accused is not proved beyond doubt and that the faulty investigation conducted by PW-21 is not the sole reason for acquittal of the accused. We are of the definite view that the above observations are necessary for the decision of this case. 34. For all the foregoing reasons, Crl. Appeal No. 1698/2010 stands allowed. The conviction and sentence imposed against the appellant for the offences under Sections 143, 147, 148, 342, 427, 449 and 302 read with 149 IPC stand set aside. The appellant/1st accused stands acquitted, if he is not required in connection with any other case. Crl. Appeal No. 1793/2011 stands dismissed.