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"Issue notice limited to the question as to the nature of offence and the quantum of sentence.

No orders on bail."

Heard learned counsel for the parties. Leave is granted confined to the limited question on which notice was issued as referred to above.

For an occurrence which took place on 24th, December 1986, in which one Suku succumbed to the injuries as a result of the assault during the occurrence, six accused persons were arrayed by the investigating agency for offences punishable under Sections 302, 324, 323, 341, 148 read with Section 149 IPC. They were put on trial and the prosecution sought to establish its case by examining as many as six eye-witnesses besides other evidence, documentary and oral. At the trial however, four eye- witnesses, PW3 Devassykutty, PWs 6 and 7 salesman and his assistant in the arrack shop and PW8 Unni @ Velayudhan turned hostile and did not support the prosecution case. The prosecution case was sought to be proved by the ocular testimony of PW4 Biju and PW5 Anil, both aged about 13 years at the time of occurrence and the other evidence. Both the eye-witnesses supported their statements recorded under Section 161 Cr. P.C. during their testimony in court. The trial court on the basis of prosecution evidence found accused No. 1, Subran, guilty of an offence punishable under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life. Accused Nos. 2 to 6, namely, Rajan, Preman, Viswan, Sura and Shajan were found guilty of an offence under Section 326/149 IPC and each one of them was sentenced to undergo rigorous imprisonment for three years. Besides, accused 1 to 4 were convicted for an offence under Section 148 and sentenced to suffer rigorous imprisonment for one year. All the accused were also convicted and sentenced to suffer rigorous imprisonment for six months each under Section 147 IPC. All the accused were also convicted for offences under Sections 143, 341, 323, 324 read with Section 149 IPC but no separate sentences were awarded on any of those counts. On an appeal before the High Court, the conviction and sentenced awarded to accused 1 to 3 and 5 were confirmed while accused 4 and 6 were acquitted and the conviction and sentence recorded against them by the learned Sessions Judge was set aside. In view of the limited notice issued by this Court, we are relieved of the necessity to reappreciate the prosecution evidence in extenso and shall therefore confine ourselves to the determination of the nature of the offence and the award of appropriate sentence to the four appellants accepting, as established the prosecution case against the four appellants beyond a reasonable doubt.

From the above analysis of injuries, it cannot be said that any one of the four appellants, who alone stand convicted by the High Court had inflicted injuries intending to cause death or such bodily injury as is sufficient in the ordinary course of nature to cause death. As already noticed, six accused persons had been charged by the investigating agency for offences punishable under Sections 143, 147, 148, 341, 323, 324, 326 and 302 read with Section 149 IPC and put on trial. The trial court convicted accused 2 to 6 under Section 326 IPC with the aid of Section 149 IPC. It convicted accused No. 1 for an offence under Section 302 IPC. While convicting accused 2 to 6 for the offence under Section 326/149 IPC, the trial court came to the conclusion that 'the accused did not share the common object to murder Suku and that the common object was only to cause grievous hurt' to the deceased. Being of the opinion, that accused No. 1 had caused injuries with a chopper and those injuries "could" have resulted in the death of the deceased, he was convicted for an offence under Section 302 IPC. The High Court acquitted two of the accused and convicted the remaining four only. The High Court found that clear evidence of the eye-witnesses was only against accused Nos. 2, 3 and 5 besides appellant No. 1. The participation of the 6th accused and the role assigned to him by the prosecution was doubted by the learned Judges of the High Court and he was given the benefit of doubt and acquitted. Similarly, the High Court disbelieved the role assigned to accused No. 4 and doubted his participation in the commission of the crime. He was also' given the benefit of doubt and acquitted. While setting aside the conviction and sentence of the said two accused, the High Court did not hold that beside the four accused convicted by it, there were some other known or unknown accused who had also been a party to the commission of the crime. It is in this above background that we have to consider the nature of the offence committed by the four appellants. Admittedly, none of the accused persons individually had been charged for the substantive offence of murder under Section 302 IPC. In the trial court all the six accused were charge sheeted for an offence under Section 302 read with Section 149 IPC. Other charges were also framed against the accused but only with the aid of Section 149 IPC. After the acquittal of the two accused, could the High Court convict appellant No. 1 for the substantive offence under Section 302 IPC (with which he had not been charged) and the appellants 2 to 4 for an offence under Section 326/149 IPC ?

A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.

Coming now to the case of the other three appellants. Since, their conviction for an offence under Section 326 with the aid of Section 149 is not sustainable in law, we set aside their conviction under Section 326/149 IPC. They would be responsible for their individual acts. The injuries caused by Rajan and Preman appellants 2 and 3, were with a torch, iron rod and a cycle chain. None of the injuries caused by them according to the postmortem report were on any vital part of the body, though some of the injuries caused by blunt weapons were grievous in nature. We, therefore, convict each of the two appellants Rajan and Preman, for an offence under Section 325 IPC and sentence them to suffer rigorous imprisonment for two years each. So far as the fourth appellant Sura Surendran is concerned, he caused grievous injuries to the deceased with a knife. His offence would, therefore, fall under Section 326 IPC and convicting him for the said offence, we sentence trim to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 500 (five hundred). In default of payment of fine he shall further suffer rigorous imprisonment for a period of three months. Fine, if realised shall be paid to the heirs of the deceased. The conviction of all the appellants for the offence under Section 324 as recorded by the learned Judges of the High Court as also for the other offences are maintained but without the aid of Section 149 IPC. In view of the sentences recorded for offence under Section 304 Part I against the first appellant Subran, Section 325 IPC against appellants 2 and 3, Rajan and Preman, and Section 326 IPC against Sura Ca, Surendran, appellant 4, no separate sentence are recorded for the other offences. The appeal is accordingly partially allowed and disposed of in the above terms.