JUDGMENT : The appellants are accused Nos.1, 2 and 5 in S.C.No.81 of 2014 on the file of the Additional Sessions Court-I, Kalpetta. The aforesaid Sessions Case arises from crime No.373 of 2011, which was registered by Station House Officer, Meppadi Police Station for the offences punishable under Sections 120B, 143, 147, 148, 324, 326 and 307 read with Section 149 IPC. 2. The prosecution case in brief is as follows: PW1 and his family are residing in a hut in a property which was encroached by them in a reserved forest at Withgard in Wayanad District. The encroachment was made by about 300 families under the leadership of Sri.Sam P. Mathew, the 5th accused herein, who is the leader of a political party named CPI(ML). Later, some difference of opinion occurred between the said Sam P.Mathew and some of the families of the encroachers. Consequently, some of them including PW1 who were originally members of CPI(ML) resigned from the said party and joined in a political party named Jantha Dal. On account of the same, the 5th accused was having some animosity with PW1, as he was under the impression that it was PW1 who instigated others to leave the party. Presumably because of this, there was consistent attack on the shed constructed by PW1. On 19.12.2011 at about 9 am, while he was constructing a new shed in the encroached land, the 5th accused came there and cautioned PW1 and instructed him not to construct any shed in that property. Later, as PW1 continued with the construction of the shed with the help of his wife PW2 and neighbour PW4, accused Nos.2 to 4 and another came to the spot, carrying dangerous weapons such as choppers and iron pipes, inflicted cut injuries upon PW1 with chopper and also beaten him with iron pipe. PW2 also sustained injury while she intervened and attempted to protect PW1. Immediately, the injured persons were taken to hospital from where First Information Statement was recorded and case was registered. After completing the investigation, police submitted charge sheet against the accused 1 to 5 herein for the offences mentioned above. The aforesaid case was taken on file as C.P.No.40 of 2013 by the learned Magistrate and after completing the committal proceedings, it was committed to Principal Sessions Court, Kalpetta, from where it was taken on file as S.C.No.81 of 2014. 3. The aforesaid case was taken on file as C.P.No.40 of 2013 by the learned Magistrate and after completing the committal proceedings, it was committed to Principal Sessions Court, Kalpetta, from where it was taken on file as S.C.No.81 of 2014. 3. In support of the prosecution case, 18 witnesses were examined, Exts.P1 to P42 were marked and Material Objects 1 to 12 were identified. After closure of the evidence, accused were examined under Section 313 of Cr.P.C, by putting incriminating materials brought out in evidence to them. All the accused denied the said imputations and pleaded innocence of all the allegations. It was stated by them that, the case itself was falsely hoisted against them on the reason of political rivalry. 4. After evaluating the materials brought out in evidence, the learned Sessions Judge arrived at a finding that accused Nos.3 and 4 are not guilty. However, A1 and A2 were found guilty for the offences as mentioned above and they were sentenced to undergo imprisonment for three months each under Section 143 IPC, nine months under Section 147 IPC, two years under Section 148 IPC, two years under Section 324 read with 149 IPC, five years under Section 149 IPC, five years and to pay a fine of Rs.10,000/- with default sentence of rigorous imprisonment for one year under Section 326 read with 149 IPC and they were sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for one year under Section 307 read with 149 IPC. The 5th accused was also found guilty for the offences and was sentenced to undergo imprisonment for two years under Section 120B read with Section 324 IPC, rigorous imprisonment for five years and a fine of Rs.10,000/- with default sentence of rigorous imprisonment for one year under Section 120B read with Section 326 IPC and also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default sentence of one year under Section 120B read with Section 307 IPC. It was further ordered that the substantive sentence shall run concurrently. The present appeal is submitted by the aforesaid accused persons, challenging their respective convictions and sentences. 5. Heard Sri.K.S.Madhusoodanan, learned counsel for the appellants and Sri.Aravind V.Mathew, learned Public Prosecutor for the State. It was further ordered that the substantive sentence shall run concurrently. The present appeal is submitted by the aforesaid accused persons, challenging their respective convictions and sentences. 5. Heard Sri.K.S.Madhusoodanan, learned counsel for the appellants and Sri.Aravind V.Mathew, learned Public Prosecutor for the State. The prosecution case is in connection with the assault alleged to have been made by the accused 1 to 4 and another person on PW1 and PW2, by forming themselves into an unlawful assembly. Exts.P20 and 21 are the medical records evidencing the injuries sustained by the respective witnesses. PW20 is the discharge certificate issued by the Medical College hospital, Kozhikode wherein PW1 had undergone treatment. Ext.P21 is the wound certificate issued from the Medical College showing the injuries sustained by PW2. The aforesaid documents were proved through the evidence of PW16. According to PW16, PW1 sustained following injuries: (1) Extension tender cut injuries left wrist. (2) Tricept cut injury Left arm (3) Multiple lacerated wound over body. It was also stated by PW16 that multiple tender injuries would affect functions of hand and it is grievous in nature. The injuries sustained by PW2 are as follows: (1) Fracture 2nd meta carpel bone right side. (2) Multiple contusion over body. As regard to the nature of injuries, it is stated that injuries caused by as alleged. It is also stated that injuries were grievous in nature. In P20 and P21, history of injury is stated to be that occurred due to assault. The aforesaid documents would suggest that the aforesaid witnesses have sustained grievous hurt as established through Exts.P20 and P21 which were proved by PW16 doctor. This leads us to the question as to whether these injuries were sustained due to the assault committed by the accused persons. 6. For establishing the offences alleged against the accused persons the crucial evidence relied on by the prosecution is that of PWs 1, 2 and 4. All the said witnesses are eye witnesses, out of which PWs 1 and 2 are injured witnesses. Ext.P19 FIR was registered on the basis of Ext.P1 First Information Statement given by PW1 to PW15. The First Information Report was recorded at 15.15 hours on 19.12.2011 while PW1 was undergoing treatment at Vythiri Taluk Hospital. A perusal of Ext.P1 would reveal that in the encroached property in Withgard around 300 families were residing. Ext.P19 FIR was registered on the basis of Ext.P1 First Information Statement given by PW1 to PW15. The First Information Report was recorded at 15.15 hours on 19.12.2011 while PW1 was undergoing treatment at Vythiri Taluk Hospital. A perusal of Ext.P1 would reveal that in the encroached property in Withgard around 300 families were residing. They have encroached upon the land under the leadership of A5, who is the leader of CPI(ML) and later some of the families including PW1 had some difference of opinion with Sam P. Mathew which lead them to leave CPI(ML). Later, some of them joined the political party, Jantha Dal and A5 was nursing some grudge against PW1 due to the same. For the past one week, there were instances of pelting stones on the sheds of PW1. On 19.12.2011 morning, PW1 started to construct a shed in a different property which was objected to by A5 and it resulted in exchange of words between the parties. Later, at about, 1 pm A1 and A2 along with two identifiable persons and one person who cannot be identified, came to the place where PW1 was constructing the shed and threatened to kill PW1. Thereafter, they assaulted PW1 with chopper and inflicted cut injuries on all over the body of PW1, by shouting and instigating each other to cut and kill him. His wife Elsy, son Saneesh and neighbour Bindu cried loudly. One of the accused assaulted his wife with iron pipe. The reason for assault was stated to be the grudge nursed by A5 for leaving the party. 7. While examined as PW1, he reiterated the aforesaid statement with further details. Even though, in Ext.P1 it was stated that all the accused persons have attacked PW1 with chopper and inflicted injuries upon him, while examined as PW1, there is a slight improvement. He has stated that A1 attacked him with iron rod. A2 and A4 also attacked. Initially, he has stated that he sustained injury on his head first and thereupon he was forced to sit on the ground. Later, he stated that when the accused were about to hit him, he ran away. The 1st accused chased him and when he reached the property of Pushpa, he was hit on his head. He could not ran thereafter. At that time, accused Nos.1 to 4 assaulted him. Later, he stated that when the accused were about to hit him, he ran away. The 1st accused chased him and when he reached the property of Pushpa, he was hit on his head. He could not ran thereafter. At that time, accused Nos.1 to 4 assaulted him. He has stated that, while he was running, A3 inflicted cut injuries on his leg. He has stated that it is not possible to state as who inflicted the injuries on his body by using a knife. He further stated that he sustained cut injuries. His wife PW2 attempted to guard him and tried to prevent the assault on PW1. During the course of the same, PW2 was also attacked and she sustained fracture on her fingers. 8. PW2 is the wife of PW1. The incident narrated by PW2 was almost similar as narrated by PW1. However, there is slight difference as to the person who had inflicted cut injury upon PW1. She stated that it was the 1st accused who inflicted cut injuries on the 1st accused. She also stated that while PW1 sustained first cut injury PW1 was on her lap. She denied the suggestion that PW1 had fallen on ground after receiving the cut injury. She also stated that A1, A3 and A4 had inflicted cut injuries on the body of PW1. She also stated that two accused persons were having choppers in their hands. On going though the evidence of PW2, it can be seen that, even though, she stated about the assault and had identified weapons including the iron pipes which are MOs 5 to 7, she interchangeably used the description of the said weapon as iron rod and iron pipe. In evidence of PW1 also the said weapons were mentioned as iron rod, even though in First Information Statement, the weapon was described as iron pipe. PW2 further stated that A1 to A4 have came to the spot by wrapping the weapons in paper and upon reaching there, they removed the wrapper and assaulted PW1. PW4 is another witness. She is the neighbour of Pws 1 and 2. She was at the place of occurrence at the relevant time as she was assisting PW1, in the construction of the shed. She has narrated the incident more or less in similar manner as explained by PWs1 and 2. PW4 is another witness. She is the neighbour of Pws 1 and 2. She was at the place of occurrence at the relevant time as she was assisting PW1, in the construction of the shed. She has narrated the incident more or less in similar manner as explained by PWs1 and 2. She has stated that accused persons came to the place of occurrence by keeping weapons wrapped in paper. She stated that all the 4 accused persons had inflicted cut injuries and also placed blows on PW1. She has stated that all the accused persons were carrying sticks and choppers. It was also stated that they were interchanging the weapons in between. She had also stated that she blocked assault during which the three accused hit her on her stomach with stick. 9. The learned counsel for the appellants specifically relying upon the discrepancies in the evidence of aforesaid eye witnesses and submits that the said discrepancies are serious in nature which are fatal to the prosecution case. It is pointed out that there is no clear evidence as to who has inflicted injuries upon PWs 1 and 2. On examining the evidences of PW, 1, 2 and 4, it can be seen that, there are some discrepancies as to the nature of assault made by the accused persons individually. There is also some confusion with regard to the weapons used by each accused persons. However, the aforesaid discrepancies are not very serious in nature so as to doubt the veracity of the prosecution case as revealed through the said witnesses. This is particularly because, the discrepancies in the evidence between those witnesses were in respect of the weapons used by each accused persons and the particular injuries caused by each accused persons. On the other hand, a common aspect, which can be found in the evidence of these witnesses is that of all of them clearly stated that all the accused persons have inflicted injuries upon PW1 and PW2. In State of U.P. v. M.K.Anthony [ (1985) 1 SCC 505 ] in paragraph No.10 of the said judgment, it was observed by the Honourable Supreme Court as follows: “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. In State of U.P. v. M.K.Anthony [ (1985) 1 SCC 505 ] in paragraph No.10 of the said judgment, it was observed by the Honourable Supreme Court as follows: “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.” 10. In Vijay Alias Chinee v. State of Madhya Pradesh [ (2010) 8 SCC 191 ], in paragraph No.23 the Honourable Supreme Court observed as follows: “23. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses (vide Sohrab & Anr. Vs. The State of M.P. AIR 1972 SC 2020 ; Bharwada Bhogini Bhai Hirji Bhai Vs. State of Gujarat AIR 1983 SC 753 ; Prithu @ Prithi Chand & Anr. Vs. State of Himachal Pradesh (2009) 11 SCC 588 ; and State of U.P. Vs. Santosh Kumar & Ors. (2009) 9 SCC 626 ). 11. From the principles laid down by the Honourable Supreme Court in the aforesaid judgments, it can be seen that, mere discrepancies are not sufficient to discard the evidence of the witnesses as such. If the appreciation of evidence of the witnesses as a whole, reveal the ring of truth, it is sufficient to establish the guilt of the accused. In this case, when we apply the aforesaid principles, it can be seen that, PWs 1, 2 and 3 have clearly mentioned about the incident. The sequences of events, right from the inception are consistent. The only difference in their evidence is in relation to the manner in which the assault was made by each of the accused persons individually and the weapons used by them individually. When the nature of incident as revealed through them is taken into consideration as a whole, which was witnessed by them in a tensed situation, it can be safely concluded that, it may not be possible for each witnesses to observe with precision as to the individual acts committed by each and every assailants. When the nature of incident as revealed through them is taken into consideration as a whole, which was witnessed by them in a tensed situation, it can be safely concluded that, it may not be possible for each witnesses to observe with precision as to the individual acts committed by each and every assailants. Certain discrepancies are bound to occur in such circumstances and such minor discrepancies indicates genuineness of the versions and not the falsity in their depositions. In such circumstances, I do not find any reason to accept the contention put forward by the learned counsel for the petitioner that the evidence of PWs1, 2 and 4 are un-reliable. This is particularly because, the evidence of PW2 and PW4 would reveal that, the assailants have brought the weapons to the place of occurrence by wrapping the same in paper. PW3 is the daughter of PW1 and 2 and her evidence is crucial in this regard. She has stated that she saw the accused persons just before the incident. She was going to school at the relevant time and she had seen the accused persons coming to the place with weapons covered in a paper. The aforesaid evidence provides corroboration to the evidence of PWs 2 and 3. In such circumstances, I do not think that the aforesaid evidence are to be discarded. 12. Another contention put forward by the learned counsel for the appellant is with regard to the identity of the accused persons. The learned counsel by placing reliance upon the judgment of this Court in Manu G. Rajan v. State of Kerala [ 2021 (6) KLT 227 ], contended that in the absence of specific identification of the accused persons who were in the dock, benefit of doubt has to be given to the accused persons. It is pointed out that in the aforesaid decision, it was held by this Court that even if the accused persons were known to the witnesses, individual identification of the accused in the dock is mandatory. The aforesaid decision was rendered by a learned single Judge of this Court by relying upon the judgment of a Division Bench in Vayalali Girishan & Ors. V. State of Kerala [2016 KHC 204]. In Vayalali Girishan’s case in paragraph No.43 a Division Bench of this Court observed as follows: “43. The aforesaid decision was rendered by a learned single Judge of this Court by relying upon the judgment of a Division Bench in Vayalali Girishan & Ors. V. State of Kerala [2016 KHC 204]. In Vayalali Girishan’s case in paragraph No.43 a Division Bench of this Court observed as follows: “43. Recalling the discussion with regard to the presence, participation and fixation of identity of the accused, we hold that the evidence of PW1 to 4 are convincing as regards the incident and there is no reason to doubt their version as regards the involvement of accused Nos.1, 2, 12 and 15. But we are distressed to note that in the case of the other accused, the learned Sessions Judge has adopted a very callous approach. Undoubtedly, substantive evidence is the identification of the accused by the witness before the Court. But in the instant case, the deposition of the witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainty, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. This is all the more important in a case of this nature where most of the accused are attempted to be roped in on the reason that they were members of the unlawful assembly and they had shared the common object. Unfortunately, there is no specific endorsement in the deposition of the eye witnesses that the accused numbering 25 standing in the dock were identified by the witness in any acceptable manner known to law and the court was satisfied by the identification. In other words, it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavor was made by the Court to individually fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. We have to mention that the identification of the accused in Court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of accused Nos.3 to 11 , 13, 14 & 16 to 25 and to hold them vicariously liable for the offence u/s 302 r/w 149 of the IPC.” 13. The observations in the aforesaid decisions is that, witness may not be knowing the rank of the accused persons and therefore, there must be specific identification of every accused by witnesses. In this case, I am of the view that the principles laid down therein are not applicable because of the peculiar facts and circumstances of the case. It is also a relevant factor to notice that lack of identification in the manner as mentioned in the said decision by itself would not make the evidence of the aforesaid witnesses invalid, but on the other hand, it may indicate a circumstance, which may compel the court to grant benefit of doubt to the accused persons. However, this would indicate that, if there are other materials showing the identity of the accused persons, such benefit of doubt need not be given. While examining the facts of this case, it can be seen that, PW1 had specifically named A1 and A2 in the First Information Statement. He reiterated the same while he was examined as PW1. PW2 has also stated that she knows the said accused persons. While examining the facts of this case, it can be seen that, PW1 had specifically named A1 and A2 in the First Information Statement. He reiterated the same while he was examined as PW1. PW2 has also stated that she knows the said accused persons. In their deposition, it is seen recorded that the accused persons were identified by the witnesses by their name. When all these aspects are taken into consideration, there cannot be any dispute or confusion with regard to the identity of accused Nos.1 and 2. Evidence of PWs1, 2 and 4, when read as whole, clearly indicate the identity of the accused 1 and 2, and this is a crucial aspect which supports the prosecution case. It is also to be noted in this regard that, all the above witnesses have clearly stated that they were workers of CPI(ML) and these witnesses were also part of the said political party for some time. Therefore, the question of lack of identity in respect of accused Nos.1 and 2 does not arise in this case, and I have no hesitation in rejecting the contention of the learned counsel for the appellant in this regard. 14. Next contention raised by the learned counsel for the appellant is with regard to the application of Section 149 of IPC. According to the learned counsel, since accused Nos.3 and 4 stand acquitted by the trial court, the minimum requirement of five members for forming an unlawful assembly is no longer in existence. In the light of the above, Section 149 IPC is not attracted to the facts of the case and hence accused Nos.1 and 2 cannot be found guilty for the offences punishable with the aid of Section 149 IPC, contends the learned counsel. In such an event, if at all accused Nos.1 and 2 were found to have any involvement of commission of the crime, the conviction can be arrived at against them, only in respect of the individual acts committed by them. It was also pointed out that, the evidence available on record does not indicate the exact act committed by the said persons. In order to substantiate the aforesaid contention, the learned counsel for the appellant relies upon a Constitution Bench decision rendered by the Honourable Supreme Court in Mohan Singh and Another v. State of Punjab [ AIR 1963 SC 174 ]. In order to substantiate the aforesaid contention, the learned counsel for the appellant relies upon a Constitution Bench decision rendered by the Honourable Supreme Court in Mohan Singh and Another v. State of Punjab [ AIR 1963 SC 174 ]. In the said judgment, after referring to various judicial precedents, it was held that, if out of the members of unlawful assembly having more than five members who were identified and arrayed as accused persons, some of them were acquitted, thereby total numbers of assailants had came out less than five numbers, the offences punishable under Section 149 IPC would not be attracted. The relevant observations in this regard can be found in paragraph No.8 and 9 of the said judgment. “8. The true legal position in regard to the essential ingredients of an offence specified by S.149 are not in doubt. S.149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and S.141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made S.141 inapplicable which inevitably leads to the result that S.149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made S.141 inapplicable which inevitably leads to the result that S.149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly. 9. In dealing with the, question as to the applicability of S.149 in such cases, it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where S.149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under S.149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under S.302/149 if the charge is that the persons before the Court, along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make S.149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as Such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under S.149 it is not necessary that five or more persons must necessarily be brought before the Court and convicted. Therefore, in order to bring home a charge under S.149 it is not necessary that five or more persons must necessarily be brought before the Court and convicted. Similarly, less than five persons may be charged under S.149 if the prosecution case is that the persons before the Court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the Court along with unidentified and unamed assailants or members composed an unlawful assembly, those before the Court, can be convicted under S.149 though the unnamed and unidentified persons are not traced and charged. Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving, before the court less than five persons to be tried, then S.149 cannot be invoked. Even in such cases; it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the Trial Court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under S.149 because along with the two or three persons convicted wore others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under S.149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly un named and unidentified may conceivably raise the point as to whether prejudice would be caused to the persons before the Court by reason of the fact that the charge did not indicate that un named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the court of facts from holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under S.149 is framed.” 15. Here, in this case, it is true that, the four accused persons were identified and named in the final report and one person is remaining as unidentified. However, crucial aspect to be noticed in this regard is that, two persons; A3 and A4 were found not guilty on the ground that, from the evidence of the witnesses, their identity could not be established beyond reasonable doubt. It is not a case where, the trial court arrived at the conclusion that number of persons involved in commission of the crime was less than five in numbers. On the other hand, the involvement of A3 and A4 could not be established by the prosecution beyond reasonable doubt, as their identity was not proved with sufficient degree of proof as required. In Mohan Singh (supra), itself, the competence of the court to arrive at a conclusion of guilt in such circumstances is dealt with. On the other hand, the involvement of A3 and A4 could not be established by the prosecution beyond reasonable doubt, as their identity was not proved with sufficient degree of proof as required. In Mohan Singh (supra), itself, the competence of the court to arrive at a conclusion of guilt in such circumstances is dealt with. In paragraph No.11 of the said judgment, after referring to the judgment of the Honourable Supreme Court in Bharwad Mepa Dana v. State of Bombay [ AIR 1960 SC 289 ] and also in Kartar Singh v. State of Punjab [ AIR 1961 SC 1787 ] It was observed as follows: “In Bharwad Mepa Dana v. State of Bombay 1960-2 SCR 172 : ( AIR 1960 SC 289 ) this Court was dealing with a case where twelve named persons were charged with having formed an unlawful assembly with the common object of committing the murder of three persons. At the trial before the Sessions Judge, seven of the named persons were acquitted and five were convicted under S.302/149 and S.302/134. On appeal, the High Court acquitted one of the convicted persons but maintained the conviction and sentence passed on the rest. The validity of the said order of conviction and sentence was challenged before this Court on several grounds, one of which was that S.149 became inapplicable as soon as eight out of the twelve persons named as members of the unlawful assembly were acquitted. In rejecting this argument, this Court referred to the finding recorded by the High Court that the unlawful assembly in question consisted of ten to thirteen persons out of whom only four were identified and not the rest; and held that it was open to the High Court to come to such a finding. The argument which was argued against the validity of such finding was put alternatively in two forms. It was first contended that the prosecution case must be confined to the charge framed against the accused persons and the charge in the Sessions Court referred to twelve named persons as composing the unlawful assembly and so, as soon as eight of them were acquitted, S.149 became inapplicable. It was first contended that the prosecution case must be confined to the charge framed against the accused persons and the charge in the Sessions Court referred to twelve named persons as composing the unlawful assembly and so, as soon as eight of them were acquitted, S.149 became inapplicable. It was also urged that in coming to the conclusion that the unlawful assembly consisted of ten to thirteen persons, the High Court was making out a case of a new unlawful assembly and that was not permissible in a criminal trial. Both these arguments were repelled by this Court and it was held that there was no legal bar which prevented the High Court from coming to the conclusion that apart from the persons who were acquitted and excluding them evidence adduced by the prosecution showed the presence of more than five persons who composed the unlawful assembly, The assembly about the existence of which the High court has made a finding is not a new assembly but the same assembly as alleged by the prosecution. 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. 12. The same principle has been enunciated by this Court in Kartar Singh v. State of Punjab AIR 1961 SC 1787 . According to this decision, it is only when the number of alleged assailants is definite and all of them are named and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants party must have consisted of five or more persons. According to this decision, it is only when the number of alleged assailants is definite and all of them are named and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants party must have consisted of five or more persons. It is true that having stated that position, this Court has also observed that the fact that certain persons are named in the charge as composing an unlawful assembly, excludes the possibility of other persons to be in the said assembly especially when there is no occasion to think that the witnesses who named all the accused could have committed mistakes in recognizing the assailants. It is on this observation that Mr. Raghubir Singh relies. We, however, think that it would be unreasonable to read this statement as laying down an unqualified proposition that whenever persons named, in the charge are alleged to constitute an unlawful assembly it is legally not permissible to the prosecution to prove during the trial that persons in addition to those named in the charge also were of the said assembly. In other words, what this observation intends to suggest is that where persons named in the charge are alleged to compose an unlawful assembly, the court of facts would be slow to come to the conclusion that persons other than those named in the charge were members of the said assembly. If, however, it appears on, evidence that persons not so named in the charge were members of the unlawful assembly, there is no legal bar which prevents the courts from reaching that conclusion. This position can and does arise, where some of the persons composing the unlawful assembly are not identified by the witnesses and they are not named. In fact, the decision in the case of Kartar Singh itself shows that this Court rejected the appellants contention that their conviction under S.302 and 307, read with S.149 was invalid. Therefore, we see no inconsistency between the observations made in this case and the earlier decisions to which we have just referred. The result is that in the circumstances of the present case, the appellants are entitled to contend that S.149 cannot be invoked against them.” 16. Therefore, we see no inconsistency between the observations made in this case and the earlier decisions to which we have just referred. The result is that in the circumstances of the present case, the appellants are entitled to contend that S.149 cannot be invoked against them.” 16. The aforesaid observations made by the Honourable Supreme Court indicates that, if the evidence available on record clearly establishes the involvement of five or more persons in commission of crime, the evidence under Section 149 IPC would be attracted, even if some of the persons named in the final report were happened to be acquitted on account of failure on the part of the prosecution in proving their identity. In this case, right from the inception, the involvement of five or more persons is clearly mentioned. As per the First Information Statement, A1 and A2 were specifically named and presence of three other persons was also mentioned. In the evidence of PWs1, 2 and 4, the number of the persons is also specifically stated by all the said witnesses . In such circumstances, I am of the view that, merely because of the reason that A3 and A4 were acquitted for want of sufficient evidence as to their identity, it cannot be concluded that offences under Section 149 IPC is not attracted. In such circumstances, I am not inclined to accept the contention of the learned counsel in this regard. 17. Further contention of the appellant is with regard to the offences under Section 307 of IPC. It was pointed out that going by the injuries sustained by PWs1 and 2 as revealed from the medical evidence, it cannot be concluded that the appellants were having an intention to commit the murder of PW1. Even though, it was alleged by the prosecution that PW1 sustained injuries on his head with dangerous weapons, the medical evidence does not indicate any head injuries. Of course, there are aberrations on all part of the body of PW1 but the evidence of PW16 coupled with Ext.P20 does not indicate any injuries which are serious in nature so as to cause threat to the life of PW1. Serious injuries were sustained on the hand of PW1 and according to PW16 doctor the said injuries may affect the functions of hand. Serious injuries were sustained on the hand of PW1 and according to PW16 doctor the said injuries may affect the functions of hand. Thus there is no evidence that the injuries were so serious in nature, so as to endanger the life of PW1. In order to attract the offence punishable under Section 307, act must have been committed with an intention or knowledge that the aforesaid act is likely to result in the death of PW1. On analyzing the entire materials available on record, and nature of injuries sustained by PW1, no such conclusion is possible and hence I am of the view that Section 307 is not attracted as against the accused persons. However, it is evident that the injuries inflicted upon the victims are coming within the description of grievous hurt as defined under Section 320. Since the aforesaid injuries were inflicted with dangerous weapons such as iron pipes and chopper, the offences under Section 326 is attracted. In such circumstances, while I am holding that A1 and A2 are to be acquitted under Section 307, I am confirming the conviction of the said persons for offences punishable under Section 326 IPC. 18. Next aspect is with regard to the conviction and sentence of A5. He was found guilty by the trial court only with the aid of 120B of IPC. Admittedly, A5 was not present in the place of occurrence at the relevant time and he has also not participated in crime physically. The prosecution produced telephone call details of A5 to establish criminal conspiracy under Section 120B. However, the trial court did not accept the said materials, on the reason that, the same was not proved in the manner as required under Section 65B of Evidence Act. Therefore, crucial evidence based on which A5 was implicated in the case, is not available for the prosecution. The only remaining materials against A5 are the evidence of PW1 and PW4. PW1 has stated that in the morning on the day of occurrence A5 had threatened PW1 and insisted that no shed shall be constructed in the property. PW4 has stated that just before the incident, she accidentally met A5, whereupon he asked PW4 to inform PW1 not to construct any shed in the property. PW1 has stated that in the morning on the day of occurrence A5 had threatened PW1 and insisted that no shed shall be constructed in the property. PW4 has stated that just before the incident, she accidentally met A5, whereupon he asked PW4 to inform PW1 not to construct any shed in the property. It was also stated by PW4 that at the time of assault on PW1 and PW2, A5 was standing in front of the party office, which was about 20 meters away from the place of incident. Of course, the aforesaid evidence creates serious suspicion of involvement of A5. However, it is a well settled position of law that, suspicion however strong it may be, cannot substitute the proof beyond reasonable doubt. The prosecution has to prove the guilt ruling out all reasonable hypothesis of innocence of the accused. In this case on analyzing the entire aspects of the case, I am of the view that the criminal conspiracy alleged to have been made by A5 with the other accused persons are not established. In Raju Alias Devendra Choubey v. state of Chhattisgarh [ (2014) 9 SCC 299 ], the Honourable Supreme Court observed in paragraph Nos.22 , 23 and 24 as follows: “22. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused No.3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120-B IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW 21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (Accused No.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra [ (2012) 9 SCC 249 [, Jai Bhagwan Vs. State of Haryana [ AIR 1999 SC 1083 ] and Ramashish Yadav Vs. State of Bihar [ (1999) 8 SCC 555 ]. 23. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. [ (2012) 9 SCC 696 ]. 24. State of Bihar [ (1999) 8 SCC 555 ]. 23. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. [ (2012) 9 SCC 696 ]. 24. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).” 19. The factual circumstances in which the aforesaid decision was rendered by the Honourable Supreme Court are similar in nature with that of this case. 20. In the light of the above, I am of the view that, A5 is entitled for benefit of doubt as there are no materials available on record to establish his guilt beyond reasonable doubt. In such circumstances, I hold that 5th accused is not guilty of the aforesaid offence. 21. In the result, this appeal is allowed in part and the judgment passed by the Addl.Sessions Court, Kalpetta in S.C.No.81 of 2014 shall stand modified to the extend as follows: (i) Accused Nos.1 and 2 who are appellants 1 and 2 herein are found not guilty of the offence punishable under Section 307 of IPC. (ii) Conviction and sentence imposed upon the accused Nos.1 and 2 for the offences punishable under Section 143, 147 , 148, 324 and 326 are hereby confirmed. (iii) Accused No.5 is found not guilty and acquitted of all the charges.