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5) and Paneer (PW-10) were also among those present at the cremation ground. The prosecution case is that, that on account of strained relations between the accused and the deceased arising out of rivalry in relation to smuggling of sandalwood by the two groups, there was, a few days earlier to the date of occurrence, a quarrel between them which had turned ugly with the two groups assaulting each other. The accused were, therefore, looking for an opportunity to get even with deceased which opportunity came their way when the deceased who was a resident of another village joined the funeral and the cremation ceremony. It so happened that no sooner were the mortal remains of the departed soul consigned to flames, Perumal one of the accused (since deceased) saw Asokan standing near a coconut tree in the former’s land, and started moving towards him with the remaining four accused including the appellants in this appeal. Perumal who had picked up a stick gave a blow to the deceased on the head because of which the deceased collapsed to the ground. Shanmugam (A-1), appellant in the present appeal, in the meantime picked up a stone and hit the deceased on his face repeatedly while Mahendran (A-2) caught hold of his legs. Raghu (A-3) squeezed the testicles of Asokan while Ramajayam (A-4), appellant No.2 in this appeal, assaulted the deceased with a heavy stone on his head exclaiming “with that he must go”. The injuries so inflicted crushed Asokan’s head and killed him on the spot. Adikesavan (PW-1), Rajendran (PW-

“External Injuries: Face – Mouth lacerated. Lower lip, lower jaw, nose – lacerated. Blood stained liquid oozing from the mouth. Mandible and all the teeth i the lower jaw broken into pieces. Neck – A skin colour contusion over the neck present. Limbs – contusion over right shoulder. Abdomen – Left testicle crusted and exposed of the skin.
Internal Examination: Skull – Base of skull fracture in the post cranial fossa crossing the midline. Bain – Congested and contained about 100 ml of clotted blood. Neck – Hyoid bone intact. Thorax – Sternum intact. No rib fracture. Lungs – Congested. Right – 450 gms. Left – 420 gms. Heart – Congested. Empty 150 gms. Liver – Congested. Intact – 1100 gms. Kidney – Congested – intact – 120 gms. Each. Bladder – Empty. Stomach – contains about 50 gms. Of undigested food. Spleen – Congested – 90 gms.”

17. That brings us to the contention urged on behalf of the appellants that even if the prosecution version is accepted in toto, the case falls under Section 304 Part II IPC and not Section 302 IPC for which the appellants have been convicted. There is, in our view, no merit in that contention either. We say so because of the manner in which the deceased was assaulted and the brutality of the assault shows that the accused formed an unlawful assembly with the object of killing the deceased. The blow landed on the deceased by Perumal had brought the deceased to the ground whereupon the accused continued brutalising the deceased with the help of stones, in the process crushing his head and squeezing his testicles. We have no manner of doubt that the nature of injuries caused to the deceased were clearly indicative of the accused having had the intention of killing him. The use of the words “with that he must go” by appellant No.2 is only a manifestation of that intention.