Kerala High Court
Shaji vs State Of Kerala on 5 April, 2005
Equivalent citations: 2005CRILJ3121, 2005(3)KLT127
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor, R. Basant
JUDGMENT K.A. Abdul Gafoor, J.
1. The appellants, accused 1 to 4, along with two others faced trial for the offences punishable under Sections 143, 147, 148, 342, 449 and 302 of the Indian Penal Code, read with Section 149 thereof. Accused 5 and 6 were acquitted and the appellants were found guilty, convicted and sentenced to undergo rigorous imprisonment for six months under Section 143, for one year under Section 148, for another term of six months under Section 342, again for two years under Section 449 and to undergo life imprisonment and to pay a fine of Rs. 10,000/-with a default sentence under Section 302 read with Section 149 IPC. This is under challenge in this appeal.
2. The prosecution alleged that at about 3 p.m. on 31.12.2000, the accused persons, carrying deadly weapons like M.O.1 chopper, M.O.2 series iron rods, M.O.3 iron pipe and wooden sticks trespassed into the oil mill where the victim Usman @ Haneefa was working. He was sitting on M.O.4 chair. All the accused beat him and finally, the first accused inflicted three cut injuries on his head with M.O.1 chopper. PWs.1 and 2 were present at that time at the scene of occurrence. PW1, along with PW.5 who came there, took him to the nearest hospital where it was declared that he was dead, PWs.14 and 15 conducted investigation and PW.16 laid the charges.
3. Appreciating the evidence on record consisting of the oral testimony of 17 witnesses, 18 documents and 8 material objects, the Court below came to the conclusion that the appellants/accused 1 to 4 were guilty of the offences as mentioned above and that accused 5 and 6 were entitled to the benefit of reasonable doubt as no wooden sticks alleged to be carried by them had been recovered and produced and as no attempt was made by the police to conduct test identification parade as regards the said two accused.
4. It is contended by the appellants that PW.1 could not have identified the assailants as he did not have any acquaintance with them and as he was a person who had come from Kannur to visit the deceased, his relative. Even according to PW.2 also, all except the first accused were strangers and there was no occasion for her to identify the accused. She had also not seen the entire incident, even admittedly by her. So, the appellants cannot be found guilty relying on their evidence. The case of the prosecution was that all the accused came together to launch the attack. But PW5 had categorically deposed that accused 2 and 3 had gone to his residence, the nearest house of the mill, in search of the first accused. This reveals that all the accused had not come together. Even according to PW1, all of them came to the scene of occurrence hiding the weapons in their hands. Therefore, each and every one of the accused did not know the nature of the weapons in the hands of the others. So, accused 2 and 3, who had allegedly enquired with PW5 about the whereabouts of the first accused, did not know the nature of the weapon hidden by him and the others. Therefore, they did not have a common object to cause the injury that was inflicted by the first accused. So, accused 2 onwards cannot be roped in the offence with the aid of Section 149 IPC, as they did not share the object which the first accused did have. So, on any count, accused 2 to 4 cannot be found guilty of the offence under Section 302 IPC with the aid of Section 149 thereof. With regard to the overt act committed by accused 2 onwards, there is no cogent piece of evidence even coming from PWs.1 and 2 as they could not identify the assailants other than the first accused. So, they cannot be found to have committed any offence at all.
5. It is further contended that when two among the total six accused were acquitted by the Court below, giving them the benefit of doubt, the remaining four accused will not, by themselves, constitute an unlawful assembly so as to share any common object among them. The prosecution did not have a case that anyone other than the six named accused had participated in the occurrence. When two among the six specified accused had been found not present, giving them the benefit of doubt, the Court below erred in convicting the others with the aid of Section 149. Such finding is based on no evidence. In the absence of any material as to the presence of anyone other than the named six accused of whom two had been acquitted, the essential requirements of Section 141 IPC have not been satisfied in this case, as the remaining persons fell short of five persons to form an unlawful assembly. In this regard, the decision reported in Sunder Singh v. State of Punjab, AIR 1962 SC 1211, Amar Singh v. State of Punjab, AIR 1987 SC 826, Nagamalleswara Rao v. State of A.P., (1991) 2 SCC 532, Atmaram Zingaraji v. State of Maharashtra, (1997) 7 SCC 41, Dhupa Chamar v. State of Bihar, (2002) 6 SCC 506 and Hamlet v. State of Kerala, 2003 (3) KLT (SC) (SN) 139 = (2003) 10 SCC 108, are heavily relied on.
6. It is further contended that going by the evidence of PWs. 1, 2 and 5, the occurrence witnesses, the police had shown the appellants to them, in the police station. This was prior to the test identification parade. When the police enabled the witnesses to see the accused persons even before the test identification parade, the purpose of that test identification parade itself is defeated. In such circumstances, the identification in Court loses its efficacy. The decisions reported in Shambhu Dayal v. Subhash Chandra, AIR 1998 SC 1732, Shaikh Umar Ahmed Shaikh v. State of Maharashtra, AIR 1998 SC 1922, Mohd. Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494 and Vijayan v. State of Kerala, AIR 1999 SC 1086 are relied on.
7. It is contended by the Public Prosecutor that accused 5 and 6 had been given only the benefit of doubt. It does not mean that there was no participation of five or more persons in the occurrence. The Court below categorically found that presence and participation of more than five assailants had been amply proved. Merely because the identity of the other two persons could not be established, the appellants cannot plead and contend that they were not the members of unlawful assembly with the other two persons, because PWs.1 and 2 were categoric that there were six persons in the group which attacked the deceased. Application of Section 149 IPC is not with reference to the number of persons convicted, but with reference to the number of persons involved in the occurrence, the Public Prosecutor contends. The Public Prosecutor has relied on the decision reported in Khem Karan v. State of U.P., AIR 1974 SC 1567, Rameshwar Dayal and Ors. v. State of M.P. and Anr., 2002 SCC (Crl) 515 and Bikau Pandey v. State of Bihar, AIR 2004 SC 997.
8. The Apex Court in Sunder Singh's case held that "cases sometimes arises where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offences committed by such unlawful assembly. In such cases, if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged are acquitted, that may introduce a serious infirmity in the charge in respect of the others against whom the prosecution case may be proved". Much reliance is placed on this by the defence contending that specific evidence given by PWs. 1 and 2 was that six named persons came to the mill to commit the assault on the victim Usman. They had no case that anyone else had been present. When two among them had been excluded giving them the benefit of doubt, as the remaining persons fell short of five persons, it is a serious infirmity to rope the appellants with the aid of Section 149.
9. In Amar Singh's case, AIR 1987 SC 826, altogether 7 persons were charged for the offence punishable under Section 302 read with Section 149 IPC. The trial Judge acquitted two among them and convicted the remaining 5. But the High Court acquitted one among the said 5. Similar contention as in Sunder Singh's case was raised before the Apex Court. The Apex Court came to the conclusion that "in our opinion, there is much force in the contention as the appellants were only 4 in number, there was no question of their forming an unlawful assembly within the meaning Section 141 IPC. Therefore, on the acquittal of three accused persons, the remaining 4 accused i.e., the appellants cannot be convicted under Section 148 or 149 IPC for any offence for the first condition to be fulfilled in designating an unlawful assembly is that such assembly must be of 5 or more persons as required under Section 141. In our opinion, the conviction of the appellants under Sections 148 and 149 IPC cannot be sustained". The facts being almost similar to the case on hand, it is contended that this dictum shall be applied in this case as well.
10. The counsel very much relies on Nagamalleswara Rao's case also. There, altogether 15 persons were involved in the occurrence. But the Trial Court convicted only four persons. The High Court, in appeal, also confirmed the conviction and sentence on them under Sections 148 and 302 read with Section 149 IPC. They contended in the Apex Court in the same lines as now contended by the appellants before us. The Apex Court held as follows:
"However, the learned Judges overlooked that since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the Courts below have acquitted all the other accused of all the offences, Section 149 cannot be invoked for convicting the four appellants herein. The learned Judges were not correct in stating that A-1, A-2, A-5 and A-11 "can be held to be the members of the unlawful assembly along with some others unidentified persons" on the facts and circumstances of this case. The charge was not that A-1, 2, 5 and 11 "and others" or "and other unidentified persons" formed into an unlawful assembly but it is that "you A-1 to 15" who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object".
It is submitted that the charge in this case also does not refer to other unidentified persons than the acquitted accused 5 and 6. So, when their involvement in the offence has not been proved, there was no evidence to conclude that some others were also involved in the commission conjointly with the appellants in furtherance of a common object.
11. In Atmaram Zingaraji's case, (1997) 7 SCC 41, there were altogether 9 accused who were acquitted by the Trial Court. But in appeal, the acquittal of one alone was reversed convicting him under Section 302 IPC. The Apex Court held that:
"The same principle will apply when persons are tried with the aid of Section 34 IPC. In the case of Krishna Govind Patil v. State of Maharashtra a four-Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be convicted with the aid of Section 34 IPC for the effect of law would be that those who were with him did not conjointly act with the fourth accused in committing the murder".
The same principle shall be applied to the cases under Section 149 as well, it is contended.
12. In Dhupa Chamar & Ors., (2002) 6 SCC 506, altogether 7 persons were involved and the prosecution alleged specific overt act to each of them. But three were acquitted. The High Court, in appeal, confirmed the conviction and sentence with the modification that conviction of one among them be converted from one under Section 302 simpliciter to one under Section 302/149 of the IPC. Similar contention was raised again and the Apex Court held that:
"In view of the fact that three accused persons referred to above were acquitted by the Trial Court itself of the charge under Section 302/149 out of the 7 accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and the evidence as the number of persons becomes less than 5, there cannot be said to be unlawful assembly as such, conviction of appellants 2 to 4 under Section 302/149 becomes unwarranted."
The prosecution case as well as the evidence in this case reveals involvement of none other than the named six persons, out of whom, two had already been acquitted. When thus no other person is said to have participated in the occurrence, application of Section 149 does not arise in this case, if the said dictum is followed, the counsel contends.
13. Thus, this was a case where there was no material, going by the evidence of PWs. 1, 2 and 5 to show the involvement of anyone else. When there are no such materials, the appellants four in number cannot be said to be members of an unlawful assembly to convict them under Section 302 read with Section 149 IPC. There was no serious overt act from the part of the accused other than accused No. 1. In the absence of specific finding that there were other persons, the Court below erred in finding the appellants guilty under Section 302 read with Section 149. In this regard, the appellants rely on Hamlet v. State of Kerala, 2003 (3) KLT (SC) (SN) 139 = (2003) 10 SCC 108, where the Apex Court held that:
"In the absence of a specific finding that there were other numbers also in the said unlawful assembly, the invocation of Section 149 will be untenable".
and that:
"In that view of the matter, we cannot accept the finding of the High Court that A-1 to A-4 can be found guilty of an offence punishable under Section 302 read with 149 IPC".
So, in the absence of any materials regarding involvement of any one else, than the persons specifically named by the prosecution, the conviction in this case cannot be supported, counsel submits.
14. As already mentioned above, the prosecution case reveals involvement of only six specified and named persons, including the acquitted accused Nos. 5 and 6. They have been acquitted as is revealed from para 13 of the impugned Judgment:
(1) as "no attempt was made by the police to conduct any test identification parade"; so far as those two are concerned (2) as "the wooden sticks said to be used" by those two accused were not recovered (3) as those two "are entitled to the benefit of reasonable doubt" and (4) as "no relationship of accused 5 and6 with accused 1 to4 was established in this case".
So, the Trial Court came to the conclusion that:
"Even though the identity of the remaining accused persons could not be proved beyond doubt, A-1 to A-4 can be convicted with the aid of Section 149 IPC as the presence and participation of more than five assailants is amply proved in this case".
15. The facts in this case clearly reveal that:
(a) Only six persons were involved in this case.
(b) The accused tried before the Court below are the said six persons.
(c) There was no case for the prosecution nor there is any evidence on record that any other unidentified or unnamed assailants were involved along with the said six named accused, in the commission of the offence.
(d) Both the charge and evidence are confined to the said six named persons alone forming the unlawful assembly and they are not alleged to have committed the offence with any other unknown companions.
Therefore the contention centered around application of Section 149 IPC, raised in this appeal, relying on the decisions of the Apex Court discussed above, has to be examined in the light of the aforesaid aspects accepted by both sides.
16. The true legal position in regard to the essential ingredients of an offence specified by Section 149 cannot be in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all the members of an unlawful assembly when an offence is committed by any one forming such an unlawful assembly in prosecution of the common object of that assembly. 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. Section 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 contention, therefore, is that as soon as the two out of named six acquitted, the membership of the assembly was reduced from six to four. This makes Section 141 inapplicable and this inevitably leads to the result that Section 149 cannot be invoked against the appellants.
17. This point raised by the appellants has to be dealt with on the admitted fact that only six 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 six persons. If that be so, as soon as two of the six named persons are acquitted the assembly must be deemed to have been composed of only four persons and it clearly cannot be regarded as an unlawful assembly, this is the main contention urged and to be dealt with in this appeal.
18. It must be, borne in mind while dealing with this contention that in order to bring home a charge under Section 149, as rightly contended by the Public Prosecutor, it is not necessary that five or more persons must necessarily be brought before the Court or convicted. But at the same time, the prosecution must allege and conclusively prove involvement of five or more persons including persons not identified and not named. The appellants are also right in their submission that the evidence in this case does not show involvement of any unidentified or unnamed assailment being members of the unlawful assembly along with the six named accused persons of whom two have been given benefit of doubt. In such case, according to them, if both the charge and evidence are confined to the persons named in the charge and out of the six persons so named, two are acquitted, leaving before the Court less than five persons, then Section 149 cannot be invoked, as there are no materials on record to conclude that five persons were unquestionably present and shared the common object.
19. This, necessarily, takes us to closer and careful reassessment and re-appreciation of the evidence on record as to the number of persons present and involved in the occurrence. Of course, from the materials on record, we cannot even presume that any one other than the six named accused persons were involved. Out of them, two have been given the benefit of doubt. There is no appeal against their acquittal. If, on re-appreciation of the evidence on record, we find that there is ample proof of the complicity of the said two acquitted accused, can we sustain the conviction of the appellants, only four in number, with the aid of Section 149, without interfering with such acquittal?
20. In the decisions reported in Karan Singh v. State of M.P., AIR 1965 SC 1037, Brathi v. State of Punjab, AIR 1991 SC 318 and Golla Pullanna v. State of A.P., AIR 1996 SC 2727, the Supreme Court has made it clear that in cases where allegations of unlawful assembly is made by the prosecution and when only less than five persons are convicted, in appeal by them, evidence available against the acquitted accused can also be re-appreciated to find out whether there was any unlawful assembly. These decisions are not seen referred to in any of the decisions relied on by the appellants and discussed above. That reported in Sunder Singh v. State of Punjab, AIR 1962 SC 1211, is, of course, prior in time to the said three decisions mentioned above. On the other hand, Amar Singh's case, Atma Ram Zingarji's case and Nagamaalleswara Rao's case (cited supra), refer only to the decision in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 or Maina Singh v. State of Rajasthan, AIR 1976 SC 1084, which has been duly distinguished in Brathi v. State of Punjab, AIR 1991 SC 318.
21. In Karan Singh's case, AIR 1965 SC 1037, altogether 8 persons were involved in the offences under Sections 302 and 307 read with Section 148 and 149 IPC. One among them absconded. The rest faced trial. The Sessions Judge convicted only Karan Singh and acquitted other six. Later, the absconded accused also faced trial, during the pendency of the appeal before the High Court by Karan Singh. He was also acquitted. Therefore, Karan Singh raised a contention that all others having been acquitted, he could not be constructively made liable for the offences with the aid of Section 149. The High Court rejected the contention. In appeal before the Supreme Court, the only question raised was whether, in view of the acquittal of the other accused, it was open to the High Court to hold that Karan Singh was guilty of murder under Section 302 read with Section 34 by finding, on evidence, that the absconding accused, who shared a common intention with him, shot the deceased dead and attempted to murder another. The Supreme Court held that:
"In spite of the acquittal of the person in one case, it is open to the court in another case to proceed on the basis-- of course, if the evidence warrants it --that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the latter case that the person tried in it was guilty of an offence under Section 34 by virtue of having committed the offence along with the acquitted person. There is nothing in principle to prevent thing being done".
22. In Brathi's case, two accused persons were tried for the charges under Section 302/34 IPC. The Trial Court acquitted one and convicted the other under Section 302. There was no appeal against the acquittal. In appeal by the convicted accused, the High Court altered the conviction to one under Section 302 read with Section 34. The Supreme Court examined whether the approach made by the High Court in judging the guilt of the appellant on the premise that the acquitted person also participated in the offence has introduced any error considering the powers of the appellate Court in dealing with an appeal against an order of conviction, under Section 386(1)(b) of the Code of Criminal Procedure. The Supreme Court found that the High Court was entitled to go into the entire evidence and all the relevant circumstances to arrive on its own conclusion about the guilt or innocence of the accused. Referring to Sunder Singh's case, AIR 1962 SC 1211, relied on by the appellants herein, the Supreme Court made it clear that "similar provision in Section 423(1)(a) of the old Code did not create a bar against the appellate Court considering indirectly and incidentally a case against the person who was acquitted, if that becomes necessary when dealing with the case in the appeal presented...." The Supreme Court held that:
"In considering the evidence as a whole, the appellate Court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate Court to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality",
23. In Golla Pullanna v. State of A.P., AIR 1996 SC 2727, 12 accused persons were change-sheeted for the offences punishable under Sections 148 and 302 read with Section 149IPC and in the alternate for the offence punishable under Section 302 read with Section 34. One among the accused persons died during trial. The trial proceeded against the remaining 11. The Sessions Judge convicted accused 1, 4, 6 and 8 to 11 under Sections 148 and 302 read with Section 149. All of them challenged the conviction before the High Court. While so, the first accused died. The High Court found that accused 4, 6, 8 and 10 deserved to be given the benefit of doubt. Believing the presence of the other accused, the High Court held that even though the acquittal of the acquitted accused could not be set aside, in the absence of an appeal against their acquittal, conviction of accused 9 and 11 under Section 302 read with Section 149 could be upheld. When this finding was challenged before the Supreme Court, it was held that:
"the principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable".
Referring to several other decided cases, the Supreme Court further held that in the matter of appreciation of the evidence the powers of the appellate Court are as wide as that of the Trial Court. It has full power to review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate Court to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. The Supreme Court unequivocally made it clear that:
"Where the evidence examined by the Appellate Court unmistakably proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate Court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding".
24. The only reason for acquittal of accused 5 and 6 found by the court below in the impugned judgment is as follows:
"As far as A-5 and A-6 are concerned no attempt was made by the police to conduct any test identification parade. According to the prosecution case A-5 and A-6 were armed with wooden sticks. Those wooden sticks said to be used by them were not recovered in this case. No relationship of A-5 and A-6 with A-1 to A-4 was established in this case. In these circumstances, I find that A-5 and A-6 are entitled to get benefit of reasonable doubt in this case".
25. When we examine the evidence of PWs. 1, 2 and 5, we see that PW1 had categorically stated that:
[I know all the six accused persons (witness identified the accused persons). A-1 Shaji was the person residing near that mill. I know the rest of the accused, but do not know correctly their names and other details].
(I have not seen Shaji (A-1)or his brothers or brother-in-law before the; incident. It cannot be stated that PW1 failed to identify accused 5 and 6, at the time of occurrence.
26. PW.2 on the other hand, was a girl from the same locality working in the mill. She has categorically stated in her evidence before the Court below that:
[The accused persons present in the court came at the place of occurrence in a van. They assaulted Usman (the deceased)].
She further clarified that:
(I knew A-1 Shaji even before the incident. But I do not have acquaintance with the other accused persons before the incident).
This does not mean that she was unable to identify the other accused persons including accused 5 and 6, who were, according to her, present among the assailants at the time of occurrence.
27. PW.5 also had deposed that:
(I was going towards the mill on hearing the cry. I was at that time I saw the accused).
Thus PW.5, who had come to the scene of occurrence, hearing the hue and cry, had also seen and identified the accused persons including accused 5 and 6. He could thus identify all of them. Thus, the evidence on record, as discussed above reveals the presence of even accused 5 and 6 at the time and place of occurrence. This clear evidence cannot be discarded or brushed aside merely on the reason that accused 5 and 6 were not associated with the test identification parade or the wooden sticks said to be used by them could not be recovered or on the reason that they did not have any relationship with accused 1 to 4. On this premise, they were not entitled to be given the benefit of doubt. So, re-appreciation of the evidence on record, as to number of persons present and involved, made above reveals that accused 5 and 6 were also present and involved in the occurrence. Presence and involvement of six persons are clearly proved as per the evidence on record. Thus, it can safely be concluded that the appellants were members Of an unlawful assembly which consisted of six persons in total. They cannot, therefore, seek the assistance of the decision in Sunder Singh, Amar Singh, Nagamalleswara Rao, Atmaram Zingaraj, Dhupa Chamar, or Hamlet, heavily relied on by them to avoid Section 149 and to get rid of the conviction under Section 302 IPC at least regarding some of the appellants. -
28. All of them came to the mill and stood around Usman. All of them assaulted him and finally Accused No. 1 gave the fatal blows. This shows their common object to do away with Usman, the victim in this case. When they, thus, came jointly to the place of occurrence armed with deadly weapons and committed murder of Usman, it cannot be said that any one among them did not share the common object. The evidence of PWs.1 and 2 is conclusive as to the fatal injuries inflicted by Accused No. 1 on the head of the deceased with M.O.1 chopper and use of M.O.2 iron rod, M.O.3 iron pipe and wooden sticks by the other accused. PW7, the doctor who conducted autopsy and issued Ext.P-5 post mortem certificate testified that Usman died out of head injuries and injury No. 1 could have been inflicted with M.O.1 and injury No.6 by M.O.3. There was fracture to skull due to the head injuries. Thus from the nature of the occurrence and the assault collectively made on the deceased person, it is clear that all of them acted with a common object, whatever be the individual overt act.
29. When thus, there was presence of all of them, there arises no question of reversal of the acquittal of any of the appellants for the offence punishable under Section 302 read with Section 149 IPC on the ground that any of them did not share common object or that the convicted accused are only 4 in number. As held by the Supreme Court, the evidence in relation to the acquitted accused also can be re-appreciated to find the constructive criminality of the remaining accused and they can, therefore, be roped with the aid of Section 149 IPC in the offence under Section 302 IPC.
30. It is contended that, as the accused were shown to the occurrence witnesses, PWs.1 and 2, while in police station and before the test identification parade, the identification of the accused by them in the court lost its evidentiary value. Moreover, the witnesses have admitted that the photographs of the accused have been published in newspapers.
31. Report on identification parade wherein the witnesses have identified the accused is not substantive evidence. But if the accused, who are strangers so far as the witness are concerned, were allowed to be seen earlier than the test identification parade and then allowed to identify them in such parade and if it is introduced as a corroborative piece of evidence in that regard, certainly the evidence on identification in Court has to be viewed with caution.
32. But in this case, the evidence of the occurrence witnesses, as discussed above reveals that they had seen the occurrence in the broad day light and in the close vicinity to them. There was sufficient time for them to see and observe them so that they could be identified later. They were not acute strangers. PW.2 is a person of that locality. PW5 also is of that place. So even without a test identification parade, they could have identified the accused. They have also done so. Therefore, the test identification was not relevant at all in this case. So merely on the reason of the alleged discrepancy in the test identification parade, otherwise proper identification in Court cannot be discarded. The precedents relied on in this regard, by the counsel for the accused do not fit in the particular fact-frame of this case, where there was proper identification of the accused in the evidence tendered in Court by PWs. 1, 2 and 5, who corroborated their versions each other. Moreover, the evidence on identification of accused 5 and 6, who were not associated with test identification parade, in Court clearly established that they have been identified by the witnesses. Therefore, there is no merit in the appeal.
Basant, J. (Concurring)
33. I have gone through the judgment prepared by my learned Brother Justice K.A. Abdul Gafoor. I am in agreement with my learned brother that the appeal deserves to be dismissed and the conviction and sentence imposed on accused Nos. 1 to 4 under Sections 143, 147, 148, 342, 449 and 302 read with 149 IPC deserve to be upheld. But I am unable to agree that the said conviction and sentence cannot be supported on the basis of the findings entered by the learned Sessions Judge. I am unable to agree with the further conclusion that the finding regarding accused Nos. 5 and 6 must be varied, though their acquittal is not interfered with, before upholding the verdict of guilty, conviction and sentence against accused 1 to 4.
34. The law applicable when only less than 5 accused persons are convicted with the aid of Section 149 IPC has been one of the vexing problems of Criminal Law. It is apposite first of all to refer to Section 141 IPC.
"Section 141. Unlawful assembly.-- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First-- To overawe by criminal force, or show of criminal force the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second-- To resist the execution of any law, or of any legal process; or Third-- To commit any mischief or criminal trespass, or other offence, or Fourth-- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.-- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly".
35. It is important to note that it is not the mandate of Section 141 IPC that five or more persons must be named as known individuals. They can be known or unknown, identified or unidentified individuals. Merely because some members of the unlawful assembly are not known or identified, the other members of the unlawful assembly numbering less than five cannot be obviously contend that they were not members of the unlawful assembly. To constitute an unlawful assembly there must be five or more persons. But the composition of the unlawful assembly can be less than five known and ascertained individuals, the others being unknown, unidentified or unascertained. It is imperative that there must be five or more persons sharing the common object to make the assembly an unlawful assembly under Section 141 IPC.
4. It will also be apposite to refer to Section 149 IPC., which reads as follows:
"Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of 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, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".
Before vicarious liability can be attracted towards any member of the assembly, it must be shown that the assembly was of five or more persons and that all the indictees had shared the common object of the unlawful assembly. In such event, whether the culpable act was committed by him or not, such member of the unlawful assembly sharing the common object of the unlawful assembly shall be guilty of the offence committed by any other member of the unlawful assembly if the act be committed in prosecution of the common object of that assembly or such member of the unlawful assembly knew that such offence was likely to be committed in prosecution of the common object.
36. Different situations may arise resulting in less than five persons being found guilty, convicted and sentenced with the help of Section 149 IPC. The possible situations have to be adverted to. We will assume that there are only five indictees-- A, B, C, D and E and there are no other unknown or unascertained indictees. In the facts of this case, only that situation need be considered.
37. Less than five persons may be found guilty, convicted and sentenced for the following reasons:
(i) Only four of them (A, B, C & D) were present and the 5th (E) was falsely implicated.
(ii) All five (A, B, C, D & E) were present. The 5th (E) did not share any common object of the unlawful assembly.
(iii) All five (A, B, C, D & E) were present, but E is entitled to benefit of doubt on the question whether he shared the common object or not.
(iv) Five persons were present. Four of them were (A, B, C & D), but the 5th one is some one other than E, say F.
(v) Five persons were present and shared the common object. Four were A, B, C and D. Whether the 5th was E or not, there is reasonable doubt. E is entitled to the benefit of doubt on the question of identification.
38. Other permutations may be possible. But it is not necessary to advert to those for the purpose of this case.
39. It appears to be very evident that in cases (i) to (iii) above no conviction can be entered with the help of Section 149 IPC against any of the five, because the fundamental requirement -- of there being an assembly of five or more persons sharing the common object is not established beyond doubt.
40. But problems may arise so far as Nos. (iv) and (v) are concerned. The definite case of the prosecution is that five persons constituted the assembly and they were A, B, C, D & E. The prosecution does not have a case that there was any accused other than E. In such situation if the prosecution at the end of the trial wants to sustain a conviction against A, B, C & D with the help of Section 149 IPC, the prosecution will have to assert and prove that five persons were members of the unlawful assembly even though the prosecution could not establish its case that it was E who was the 5th person. Can conviction be entered against A, B, C and D with the help of Section 149 IPC in such a situation is the precise question before the Court.
41. A Constitution Bench of the Supreme Court in Mohan Singh and Anr. v. State of Punjab, AIR 1963 SC 174, had occasion to consider an identical question. It appears to me that extraction of paragraph 9 of the said judgment will be of immense help. I extract the same below:
"9. In dealing with the question as to the applicability of Section 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 Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 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 Section 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 Section 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 Section 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 Section 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 un-named assailants or members composed an unlawful assembly, those before the Court can be convicted under Section 149 though the un-named and unidentified person 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 person 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 Section 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 Section 149 because along with the two or three persons convicted were 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 Section 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. 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 Section 149 is framed".
(emphasis supplied)
42. A careful reading of paragraph 9 must convey that a straight jacket formula applicable for all cases cannot be deviced for resolving the controversy. Facts in each case will have to be carefully considered. It will have to be decided whether there is or can be a specific finding as to whether five or more persons sharing the common object of the unlawful assembly were present or not. Whether they are ascertained or unascertained, whether they are named or un-named, whether they are known or unknown will not be relevant if the Court is able to come to a conclusion that specified less than five persons along with some others were members of an unlawful assembly. The question was considered in greater detail by a three-Judges Bench of the Supreme Court in Bharwad Mepa Dana v. State of Bombay, AIR 1960 SC 289. Many later decisions of the Supreme Court appear to have made reference to this decision. Paragraphs 12, 13, 14 and 18 of the said decision appear to be crucial. In particular, the following passage in paragraphs 12, 13 and 14 have to be referred to:
"12. To go back to the arguments urged on behalf of the appellants, it is necessary, first, to understand clearly what the finding of the final Court of fact is. We have earlier quoted that finding in the very words in which the learned Judges of the High Court expressed it. That finding stated-- (1) there was no doubt that more than five persons constituted the unlawful assembly, though the identity of all the persons except those four who were convicted was not established; (2) that the total number of persons constituting the unlawful assembly was ten to thirteen; (3) that all the ten to thirteen persons had the common object and common intention of killing Kurji, Harji and Mitha; and lastly (4) that the killing was done in prosecution of the common object of the unlawful assembly and in furtherance of the common intention of all, and the appellants took a major part in the assault on two of the brothers, Kurji and Harji. The question that arises now is this: in view of these findings of the High Court, can it be said that the High Court wrongly applied Section 149, because the number of convicted persons was only four? We think that the answer must be in the negative. We may say at once that the High Court does not Find that the unlawful assembly consisted of the four persons. That clearly is not the finding of the High Court, because it says that "the identity of all the persons has not been established except that of accused Nos. 1, 2, 3 and 11." The finding of the High Court really means that the four convicted persons and some other persons whose identity was not established, totalling ten to thirteen in number, constituted the unlawful assembly. Therefore, it is unnecessary in the present case to embark on a discussion as to the legal effect of the acquittal of nine of the accused persons, except to state that we may proceed on the footing that that acquittal was good for all purposes and none of those nine persons can now be held to have participated in the crime so that the remaining four persons may be held guilty under Section 149 Indian Penal Code.
13. That does not, however, conclude the matter. Nothing in law prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons, who together numbered more than five. We have advisedly said. "Nothing in law etc. ..." for whether such a finding can be given or not must depend on the facts of each case and on the evidence led. It is really a question of fact to be determined in each case on the evidence given therein. Learned counsel for the appellants has argued before us, as though it is a matter of law, that it was not open to the High Court to come to the finding to which it came, because the prosecution case was that thirteen named persons constituted the unlawful assembly. We are unable to accept this argument as correct. We do not think that there was any such legal bar as is suggested by learned counsel, though there may be cases where on the facts proved it will be impossible to reach a finding that the convicted persons, less than five in number, constituted an unlawful assembly with certain other unspecified persons not mentioned in the charge. That consideration apart, any mere error, omission or irregularity in the charge will not invalidate the finding in this case as a matter of law. So far as the finding can be said to have travelled beyond the letters of the charge, the appellants have not proved any prejudice, and in the absence of prejudice no complaint can now be made of any defect in the charge.
14. Learned counsel has then submitted that the finding of the High Court makes out a case of a new unlawful assembly which is different from that suggested by the prosecution case. We do not think that that view is correct either. The assembly is the same assembly, but what has happened is that the identity of all the members of the unlawful assembly has not been clearly established though the number has been found to be more than five. We do not think that it is unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime, in any event it is a question of fact to be decided in each case and is not a question of law".
(emphasis supplied)
43. The Constitution Bench as well as the Bench which rendered Bharwad Mepa Dana's judgment, had emphasised that this is not a question of law, but a question of fact only. The nature of the finding in the given case has to be ascertained. On that would turn the conclusion of the Court. If the Court is able to come to a conclusion beyond doubt that five persons were members of the unlawful assembly, then notwithstanding the fact that one of them on the question of identity becomes entitled to the benefit of doubt will not militate against the applicability of Section 149 IPC. In particular, paragraph 14 of the decision in Dana's case (supra) has to be considered.
44. A later decision of the Supreme Court again a three Judges Bench -- considered this question in Khem Karan and Ors. v. The State of U.P. and Anr., AIR 1974 SC 1567. Paragraph 6 of the judgment, which I extract below, appears to be of crucial relevance.
"6. Although the surviving accused who have been convicted are only three, Section 149, and in any case Section 34 IPC will rope in the appellants by way of constructive liability. This Court has, in Sukh Ram v. State of U.P,, AIR 1974 SC 323 = 1974 Crl.L.J. 354, held that the acquittal of two out of three named accused does not bar the conviction of the third under Section 302 read with Section 34, if he is shown to have committed the offence with unknown companions. As in that case, here also no possible prejudice can be claimed by the accused--appellants by the invocation of Section 34 IPC, even if twenty three have been acquitted. Moreover, this Court has in Bharwad Mepa Dana v. State of Bombay, (1960) 2 SCR 172=AIR 1960 SC 289=1960 Crl.L.J. 424 taken in the view that nothing in law prevents the Court from Finding that the unlawful assembly consisted of less than five convicted persons and some unidentified persons together numbering more than five. In our view the fact that a large number of accused have been acquitted and the remaining who have been convicted under Section 149 read with the substantive offence if--as in this case the Court has taken care to find-- there are other persons who might not have been identified or convicted but were party to the crime and together constituted the statutory number. On this basis, the conviction under Section 307 read with Section 149, has to be sustained".
(emphasis supplied)
45. Perhaps the last trace of doubt, if any, on this aspect could be got rid of by reference to the decision in Dalip Singh and Ors. v. The State of Punjab, AIR 1953 SC 364. Two Judges Bench of the Court, speaking through Justice Bose had this to say on the question in paragraphs 19 and 20:
"19. Before Section 149 can be called in aid, the Court must find with 'certainty' that there were at least five persons sharing the common object. A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation.
20. This is not to say that five persons must always be convicted before Section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of Section 149 would be good. But if that is the conclusion it behoves a Court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions".
(emphasis supplied)
46. In this context it will only be proper to refer to the facts of the case on hand. Six accused persons faced indictment for the offences punishable under Sections 143,147, 248, 342, 447 and 302 read with 149 IPC. Accused 1 to 4 were brothers (A-1 to A-3) and brother-in-law (A-4). Accused Nos. 5 and 6 were not related to Accused 1 to 4. All the accused persons allegedly proceeded in an automobile armed with dangerous weapons. A brutal attack was unleashed on the victim, who was inside a building. Accused Nos. 1 to 4 indulged in specific overt acts. Accused Nos. 5 and 6 also had allegedly indulged in overt acts. Accused Nos. 1 to 4 were taken for the identification parade, but accused 5 and 6 were not so taken. The learned Sessions Judge, in these circumstances, came to the conclusion that there is sufficient evidence against accused 1 to 4. But it was found that accused 5 and 6 are entitled to get the benefit of doubt on the question of identity. Specific finding was entered that there was an unlawful assembly of more than 5 (six) persons. For greater clarity, I am extracting paragraph 13 of the impugned judgment below:
"13. As far as A-5 and A-6 are concerned no attempt was made by the police to conduct any test identification parade. According to the prosecution case A-5 and A-6 were armed with wooden sticks. Those wooden sticks said to be used by them were not recovered in this case. No relationship of A-5 and A-6 with A-1 to A-4 was established in this case. In these circumstances I find that A-5 and A-6 are entitled to get benefit of reasonable doubt in this case. I find no reason to disbelieve the prosecution case regarding the identity of A-1 to A-4 and their involvement in the incident. Even though the identity of the remaining accused persons could not be proved beyond doubt. A-1 to A-4 can be convicted with the aid of Section 149 IPC as the presence and participation of more than five assailants is amply proved in this case. This principle has been laid down in 1993 (1) KLT 14. Hence I find that A-1 to A-4 along with two others (total number exceeding 5) forming themselves into an unlawful assembly armed with deadly weapons with the common object of murdering the victim Usman and in prosecution of the common object they trespassed upon the verandah of the oil mill at Mannambatta and intentionally murdered him. Points are answered accordingly".
(emphasis supplied)
47. Thus there is a clear finding in this case that more than five accused persons had constituted themselves into an unlawful assembly and had in prosecution of their common object unleashed the murderous attack on the victim/deceased. That finding is specific, crisp and clear. My learned brother has concurred with the said conclusion after re-appreciating the evidence. I do also concur with the said conclusion without any reservation. That there was an unlawful assembly is thus confirmed by the findings of the learned Sessions Judge, to which we have both now concurred. That being so, the short question is whether accused 1 to 4 can claim any advantage or benefit from the mere fact that accused 5 and 6 have successfully claimed the benefit of doubt on the question of their identity. As held in Dana's case (supra), the dispute here was only regarding the identity of accused 5 and 6. There is no hesitation or vagueness in the finding that more than five persons were members of the unlawful assembly. It was therefore an unlawful assembly of six persons. Four of them have been satisfactorily identified. They are the appellants herein. So far as the other two are concerned, there is no finding that such 5th and 6th persons were not present. There is no finding that such 5th or 6th person did not share the common object of the unlawful assembly. On both these aspects specific contra findings in favour of the prosecution have been entered. In these circumstances on the basis of the dictum in the three decisions referred above, it appears to me to be inescapable, that the appellants must be held to be members of the unlawful assembly, who shared the common object with two other persons who were alleged to be the 5th and 6th accused, but who were found entitled to the benefit of doubt on the question of identity.
48. A learned Single Judge of this Court earlier in Alt v. State of Kerala, 1993 (1) KLT 14, had taken the same view. Still earlier in Vijayan v. State of Kerala, 1959 KLT 704, also a similar view has been taken. But in both those cases the specific fact situation of the prosecution making allegations only against five or six persons and the courts of fact entering a finding in favour of two or more persons on the question of identity had not been specifically considered. A Division Bench of this Court in the Judgment dt. 28.6.2004 in Crl.A.No. 319 of 2003 and connected cases, (2005 (1) KLT SN P.35), (I have perused the full text), had also taken a similar view placing reliance on Dana's case (supra). In two later decisions of the Supreme Court in Kikau Pandey and Ors. v. State of Bihar, AIR 2004 SC 997, and in Ram Dular Rai and Ors. v. State of Bihar, AIR 2004 SC 1043 had also taken an identical view. But these decisions have also not adverted specifically to the fact situation presently available.
49. I must hasten to observe that in cases like this, it is important that the court further ascertains whether any prejudice has resulted against the accused on account of the finding recorded that out of the indictees less than five alone have been found to be guilty. That will, of course, have to be considered in every case. If on the peculiar facts of a case the indictees facing conviction can be said to have suffered any prejudice on account of some of the original indictees being found not guilty conceding the benefit of doubt on the question of even identity, they may be entitled for acquittal on the basis of such prejudice. But in the facts of the instant case the subtle benefit of doubt conceded to accused 5 and 6 by the learned Sessions Judge cannot in any way be held to have prejudiced the interests of accused 1 to 4, the appellants herein. The principles of fair trial or reasonable opportunity to the indictees to defend themselves in accordance with law have not been infringed or trammelled so far as accused 1 to 4 are concerned. I am, in these circumstances, of opinion that the accused have suffered no prejudice also.
50. It may be necessary now to advert to the decisions referred in the judgment by my learned Brother. In Sunder Singh and Ors. v. State of Punjab, AIR 1962 SC 1211, there was no conviction under Section 149 IPC. Though in paragraph 8 reference is seen made to the play of Section 149 IPC the said decision had not considered the present fact situation at all. Accused were charged with and found guilty under Section 302 read with 34 IPC and the conviction affirmed by the Supreme Court was also only one under Section 302 read with 34 IPC.
51. In Amar Singh and Ors. v. State of Punjab, AIR 1987 SC 826, out of seven accused, two were acquitted by the Trial Court holding that their membership in the unlawful assembly was doubtful. Yet one more was acquitted by the appellate Court also on the same ground. Therefore there was no specific or positive finding that five or more persons were members of the unlawful assembly with the same common object. The facts situation is thus different.
52. In Nagamallaeswara Rao v. State of A.P., (1991) 2 SCC 532, also, 15 accused persons faced indictment. 4 out of 15 were found guilty and convicted by the appellate Court with the help of Section 149 IPC. In as much as there was no positive finding that 11 more accused were present and were members of the unlawful assembly sharing a common object to commit the offence under Section 302 IPC, they were acquitted and it was hence held by the Supreme Court that the remaining four could not be convicted with the help of Section 149 IPC. What is important to note is that there was no specific finding that five or more persons had constituted an unlawful assembly sharing the common object to commit murder. The Trial Court had not entered any such positive and specific finding against the convicted accused. The co-accused in that case were not acquitted on the ground of identity. The appellate Court had convicted the accused holding that they were members of a different unlawful assembly and not on the ground that they were members of the same unlawful assembly wherein some of the accused become entitled to acquittal on the ground of identity.
53. In Atmaram Zingaraji v. State of Maharashtra, (1997) 7 SCC 41, also there was no finding by the Trial Court of an unlawful assembly of five or more persons. All the nine accused persons who faced trial were acquitted by the Trial Court and it was the appellate Court which confirmed the acquittal of the 8 co-accused for the offence under Section 302 IPC and convicted the 9th person under Section 302 IPC simpliciter. In the absence of a specific finding in that case that there was an unlawful assembly of five or more persons and the one who was convicted by the appellate Court was member of such an unlawful assembly, the fact situation again must be held to be different.
54. So is the position in Dhupa Chamar and Ors. v. State of Bihar, (2002) 6 SCC 506 and in Hamlet alias Sasi and Ors. v. State of Kerala, 2003 (3) KLT (SC) (SN) 139 = (2003) 10 SCC 108. Unlike in the present case, there was no specific finding in those decisions that there was an unlawful assembly of five or more persons-- that the appellants were members of such unlawful assembly and the acquitted accused became entitled to acquittal on the ground of unsatisfactory evidence on the question of identity.
55. I am, in these circumstances, of the opinion that the conclusion that on the findings in para 13 of the Trial Court judgment extracted above accused 1 to 4 cannot be convicted with the help of Section 149 IPC, with all respect, may not be correct. However, as the impugned verdict of guilty, conviction and sentence against the four accused can be confirmed on the basis of the reasons given above, I concur with the final conclusion of my learned brother that the verdict of guilty, conviction and sentence imposed on the appellants under Sections 143, 147, 148, 342, 449 and 302 read with 149 IPC deserves to be confirmed and this appeal deserve to be dismissed.
The appeal is, therefore, dismissed.