Narayana Pillai, J.
1. These appeals and reference arise out of Sessions Case No. 15 of 1971 at the Sessions, Kottayam. Ten accused persons were tried there, the charge against them being under Sections 302. 324. 143, 148 and 149 of the Indian Penal Code. The Additional Sessions Judge, who tried the case, convicted accused one to five under Section 302 of the I. P.C. and sentenced them to death. He also convicted them under Section 148 of the I. P.C. and sentenced them to undergo rigorous imprisonment for one year. He directed the sentence of imprisonment not to be given effect to if the sentence of death was confirmed by this Court. He acquitted accused six to ten. While Criminal Appeal 166 of 1971 is by the first and second, accused, criminal appeal 167 of 1971 is by the fourth accused, criminal appeal 168 of 1971 is by the third and fifth accused and criminal appeal 251 of 1971 is by the State against the acquittal of accused six to ten. The reference is for confirmation of the sentence of death. The charge is that the accused were members of an unlawful assembly and that in prosecution of the common object of that assembly they murdered one Kuruvilla alias Kunju and caused hurt to P. W. 4.
2. The occurrence was at or about 1 O' Clock on the night between the 13th and the 14th of December last at a place on the Manarked Thenganal road on the southern side of the dispensary of one Baby in Puthuppally village in Kottayam. It is said to be the result of political animosity. The accused are members of the Marxist party. There is an organisation of agriculturists called 'Karshaka sangham' at Puthuppally. Kuruvilla was its Vice President P. W. 5. a priest, is the President of the Karshakasangham in the adjoining village. Eramalloor.
3. On the evening of the 13th there was a meeting of the Karshakasangham near the Puthuppally junction. It was over by 10-30 P. M. After attending the meeting when P. Ws, 1 and 4 and one Baby started for going home, Kuruvilla. who met them at the Puthuppally junction requested them to accompany him to the house of P. W. 5 which was on the western side of Puthuppally junction. They readily obliged him and they all together went to the house of P. W. 5 through the Manerked Thenganal road. That road lies east to west. While Puthuppally junction is on the eastern side. Eramalloor Junction is on the western side of that road. One has to go through Eramalloor junction to reach the house of P. W. 5. After Kuruvilla had a talk with P. W. 5 when they were returning through the same road, at the scene of occurrence, which is about seven furlongs away from the house of P. W. 5 they met P. W. 3. He was driving a lorry which was coming from the opposite direction. He stopped the lorry on seeing them. There was one Achankunju also inside the lorry at the time. After stopping the lorry P. W. 3 told P. Ws. 1 and 4. Baby and Kuruvilla that second accused and others were coming that way armed with deadly weapons and he asked them not to proceed towards Puthuppally junction. He offered to take them in the lorry. By the time that talk was over the accused had already reached the scene. As soon as they came the first accused cut Kuruvilla with a chopper on the head, Kuruvilla tried to ward it off with his right hand, but in vain. The second and third accused then with the choppers in their hands cut Kuruvilla on the back of the head. That was followed by the first accused cutting Kuruvilla again with the chopper twice on the right shoulder and the fourth accused stabbing Kuruvilla on his back with a Malappuram knife. The fifth accused beat Kuruvilla on the chest thrice with an iron rod. Kuruvilla fell down and after some time died. P. Ws. 1 and 4 and Baby who were imploring the accused not to kill Kuruvilla. managed to get into the lorry at the time and P. W. 3 drove the lorry west. When P. W. 4 got into the lorry the sixth accused is alleged to have hit him with a wooden spear. When the lorry started the accused pelted stones at it. After dropping Achankunju at the Eramalloor junction P. W. 3 took P. Ws. 1 and 4 and Baby to the house of P. W. 5. After dropping them there P. W. 3 took the lorry to his house.
4. Early in the morning of the 14th P. W. 2. a member of the local panchayat. came to know about Kuruvilla's death. He then went to the scene of occurrence and saw the dead body. After collecting information which he could get there he went to the Kottayam East Police Station. 9 kilo metres away, and lodged there at 8 A. M. the first information. Ext. P1. Therein he said that after the meeting ended the previous day at 10-30 P. M. P. W, 1. Baby, Kuruvilla and others were engaged in taking back members of the 'Jathas' which came to the meeting from Eramalloor to their houses and that his information was that it was when they were returning after that that the incident took place. He also said that after the meeting was over accused, 1. 2. 3, 6 and 8 and others, who were members of the Marxist party which was opposed to the Karshakasangham followed the persons who went to Eramalloor after the meeting and that it was when they happened to meet Kuruvilla and others that Kuruvilla happened to be murdered. On the basis of it a case was registered. Immediately after that police came to the scene. Inquest was held between 11 A. M. and 2 P. M. P. W. 1 was questioned during inquest. P. Ws. 3. 4 and 5 and Baby were also questioned the same day. Achankunju was questioned on the 16th. Accused 7, 8 and 10 were arrested on 18-12-1970 and the remaining accused surrendered before court, accused 1 to 6 on 21-12-1970. and the 9th accused on 23-12-'70. After completing investigation charge was laid before court.
5. In their statements before the committal and trial courts all the accused persons denied having had anything to do with the occurrence. According to them what the occurrence witnesses spoke in court was not true. They did not examine any witness on their behalf.
6. It is sufficiently proved in this case that Kuruvilla died as a result of the injuries sustained by him at the time of the occurrence and that hurt was caused to P. W. 4. Exts. P 3 and P 10 are respectively the post mortem certificate and the inquest report. Ext. P 2 is the wound certificate issued to P. W. 4. As many as 21 injuries are noted in the post mortem certificate. Of them seven are simple abrasions on neck, back of chest, right shoulder, right upper arm and forearm and left elbow and forearm, three are linear contused abrasions two on the front of chest and one on the back of right wrist and one is a contused abrasion on the right temple. There are two cut injuries, one On the right ring finger, as a result of which right ring finger hung by a tag of skin, and the other on right little finger, as a result of which that finger got separated at the root. There is a stab injury 10 c. m. deep on left side of back of chest. There are 7 incised injuries three on back of head, one on back of right shoulder, one on right side of pack, one on right middle finger, and one on the fold between thumb and index finger of the left hand. Two of the incised injuries on the back of head are gaping. As a result of one of them the underlying bone is cut through for 12 c. m. and fractured, the coverings of the brain are torn and the brain is contused and as a result of the other the skull is cut through for 10-5 c. m. and the left occipital pole of the brain is cut to a depth of 2. c. m. All the injuries were ante-mortem and the cause of death was shock and bleeding from the injuries sustained. The doctor who conducted autopsy was of opinion that all the incised injuries on the head and two incised injuries on the back of right shoulder and right side of back were sufficient in the ordinary course of nature to cause death. There is no doubt that whoever be the persons who caused those injuries, they intended to cause Kuruvilla's death.
7. Only three injuries were sustained by P. W. 4 and they were: a contusion on face, an abrasion on the lower lip and a small incised injury on the right fore-arm.
8. It can now be considered whether accused l to 5 were the persons who inflicted the injuries on Kuruvilla and whether it was the 6th accused who inflicted the injuries on P. W. 4 as alleged by the prosecution. The occurrence witnesses are P. Ws. 1. 3 and 4. According to the prosecution, besides them, two persons. Baby and Achankunju. had also witnessed the occurrence. It was argued on behalf of the accused that they were material witnesses and that their non-examination was fatal of the prosecution case. Baby was a person who was with P. Ws. 1 and 4 and the deceased Kuruvilla before and at the time of the occurrence. He could, therefore, speak only to matters which P. Ws. 1 and 4 could have spoken. Achankunju was one who came in the lorry with P. W. 3. He was inside the cabin of the lorry when the incident took place. He could not have spoken to matters which P. W. 3 himself had not seen. The whole prosecution case from the very beginning till the end was brought out in the evidence of P. Ws. 1. 3 and 4 and if their evidence was reliable, the examination of additional witnesses to prove the same matters which were covered by their depositions was redundant and unnecessary. As the entire narrative on which the prosecution case was based was brought out in the depositions of P. Ws. l. 3 and 4 if their evidence was reliable it would have been sheer waste of time to insist on adducing additional evidence to prove the same points. It is the quality of evidence that matters and not the number of witnesses who give such evidence. If the evidence of P. Ws. 1. 3 and 4 was unreliable, the prosecution had to suffer for the non-examination of Baby and Achankunju. One of the points stressed to disbelieve P. Ws. 1, 3 and 4 is that they are partisan witnesses being either members or sympathisers of the Karshakasangham. The same could be said of Baby. And Achankunju who was questioned only on the 16th was a brother-in-law of P. W. 1. Baby was examined in the committal Court. He was cross-examined and re-examined also. The public prosecutor filed a memo that he did not want to examine Baby and Achankunju as the facts intended to be proved through them had already been brought out in the evidence of P. Ws 1. 3 and 4. If the accused wanted to examine them as the witnesses were available that could have been done. But they never moved the court for making those witnesses available for examination at the stage of defence evidence. So far as the prosecution was concerned it was prepared to stand or fall on the evidence of P. Ws. 1. 3 and 4. No oblique motive was alleged or proved for the non-examination by prosecution of Baby and Achankunju. In these circumstances no importance whatsoever can be given to the non-examination of Baby and Achankunju.
9. Let us now pass on to the evidence of P. Ws. 1. 3 and 4. All of them said that the attack on Kuruvilla was started by the first accused. When he attempted to cut Kuruvilla on the head with chopper Kuruvilla. raised his right hand in an attempt to ward it off but that was in vain. As soon as he was cut on the head Kuruvilla turned back in an attempt to run away. It was then that the second and third accused cut him with choppers. Thereafter the first accused again cut Kuruvilla with chopper and the fourth accused stabbed him with knife. The fifth accused beat him with iron rod on his chest and Kuruvilla fell down. All those facts were spoken to by the occurrence witnesses. As regards the injuries on P. W. 4, besides P..W. 4 P. W. 1 also spoke as to how they were caused. They said that it was the sixth accused who caused the incised injury and that that was caused by hitting with the sharp end of a wooden spear. After imploring the accused not to kill Kuruvilla P. W. 4 got into the lorry and it was then that the sixth accused hit him with the wooden spear telling him that that was his share in the affair,
10. The house of P. W. 4 was one furlong and that of Kuruvilla 2 furlongs away from Puthuppally junction. The house of P. W. 3 was on the Karukachal Road, one mile away from Puthuppally junction. In the ordinary course there would have been no need for these persons to pass through Manarked-Thenganal Road on which the occurrence took place on the night of the 13th. After the meeting was over by 10-30 P. M. Kuruvilla had to meet P. W. 6. He had to talk with him about the meeting that had just taken place and affairs of Karshakasangham and arrange with him for their going together the next day to meet one E. John Jacob at Thiruvalla. The house of P. W. 5 was about 7 furlongs away from the scene of occurrence. Kuruvilla must have been afraid of walking the whole distance and going along the Manarkad Thenganal road alone during night. He requested P. Ws. 1 and 4 and Baby whom he met at the Puthuppally junction, to accompany him to the house of P. W. 5 and they readily agreed. It is not unusual to find people on the country-side readily obliging others by accompanying them on such roads on such occasions during nights especially in these days when newspapers which almost every ordinary villager in this State makes it a point to read, are full of reports of violence in the air in some States and of unexpected attacks during nights in an organised manner not only of residential houses but even of police stations. The Manarkad-Then-ganal road is one constructed on a bund and at this place it lies east to west and is straight for three furlongs. On both sides of the road there is vast expanse of paddy fields. There is not even one residential building anywhere in the vicinity. There were stones heaped up on sides of the road. It was such a road that had to be traversed by P. Ws. l and 4 and Baby and Kuruvilla for reaching the house of P. W. 5. After reaching that house Kuruvilla had a talk with P. W. 5 about the matters he wanted to talk with him. thereafter P. Ws. 1 and 4, Baby and Kuruvilla started from the house of P. W. 5 by 12 O' Clock. They came back along the same road and reached the scene of occurrence by 1 O'clock.
11. P. W 3 is the owner of at, lorry. The driver he had engaged for the lorry was one Kunjachan. P. W. 3 had agreed to give the lorry on the 14th, probably on hire, to one contractor John, whose house was about half a mile away from the house of P. W. 5. The distance between the scene of occurrence and John's house is three furlongs. Not aware of the promise that P. W, 3 had made to John. Kunjachan had agreed to give the lorry on the 14th to another person. On the 13th Kunjachan came with the lorry after the day's work to the house of P. W. 3 by 11-45 P. M. When P. W. 3 came to know from Kunjachan about his having promised to give the lorry to another on the next day P. W. 3 got angry and found fault with him for that P. W. 3 wanted to meet John immediately and explain the position to him. Kunjachan's house was in Paruthumpara. The last bus to that place from Puthuppallv Junction was at 10-30 P. M. Kunjachan had already done work till 11-45 P. M. P. W. 3 knew driving although he had not taken a licence. In those circumstances P. W. 3 decided to drive the lorry himself and go and meet John. He started from his house at 12-30. When the lorry was being driven at a place near Puthuppally junction one Achankunju. who was standing on the road showed hands to stop the lorry. When the lorry was stopped he requested P. W. 3 that he may be taken to Eramalloor. Readily P. W. 3 allowed him to get into the lorry. He was seated inside the cabin-After driving the lorry for some more distance west through the Manarkad-Thenganal road P. W. 3 saw on the way the 2nd accused and 8 or 10 others going west in front of the lorry. They were armed with deadly weapons like choppers and wooden spears. After passing them when he had covered only about 100 feet he saw P. Ws. 1 and 4 and Baby and Kuruvilla coming from the opposite direction. As soon as he came near them he stopped the lorry and sitting inside the lorry extended his head through the right door and telling them that the 2nd accused and others were coming with deadly weapons offered to take them in the lorry. By the time P. W. 3 had finished talking with them the accused had reached the scene. There is sufficient explanation for all the occurrence witnesses being present at the scene at the time of the occurrence.
12. After the occurrence P. W. 3 drove the lorry west and when it reached Eramalloor junction it was stopped there to enable Achankunju to get out. As P, W. 3 knew it was risky for him to take P. Ws. 1 and 4 and Baby inside the lorry he asked them also at Eramalloor junction to get down from the lorry but in the name of God they implored him to take them to the house of P. W. 5 where they could get asylum. P. W. 3 then took them in the lorry to the house of P. W. 5. Leaving them in the house of P. W. 5, P. W. 3 drove the lorry alone. As he was stricken with fear he abandoned the idea of going to John's house. The situation of that house was such that the lorry could not be taken up to it. As P. W. 3 was afraid of going back home along the same road he went back taking a different route. He went through Njaliyak-kuzhi. On the way he tried to inform the police by telephone from one Punnachan's house, but did not succeed as the line was out of order. After reaching home he told his wife and brother about the incident. Next morning he had to go to Erumeli. He returned from Erumeli by 5-30 P. M. At 7 P. M. he was questioned by the Police.
13. It has been brought in the cross-examination of P. W. 3 that he had no driving licence and that the registration certificate of the lorry also did not stand in his name. The fact that he does not have a driving licence does not mean that he does not know driving or that he would not have driven the lorry. In Suleman Rahiman v. State of Maharashtra. : 1968CriLJ1013 the Supreme Court observed:
There is no presumption in law that a person who possesses only a leaner's licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
Similarly there is no presumption that all persons who drive vehicles on roads are persons who have driving licences. It was because P. W. 3 had urgently to go to John's house at mid-night that he happened to drive the lorry. At the most he would only be guilty under the Motor Vehicles Act for having driven the lorry without a driving licence. But that by itself is not a sufficient ground for holding that he could not and would not have driven the lorry on the night of the 13th. The question as to whether he actually drove the lorry that night does not at all depend on the question whether he had a driving licence or not.
12. It is true that the registration certificate of the lorry does not stand in his name. But there is proper explanation for that. P. W. 3 purchased the lorry two years back. He did not then pay the full price of the lorry. But five months before he got the sale deed for the lorry on discharge of the liabilities. Thereafter he had also applied before the Regional Transport Officer for transfer of the registration certificate in his name.
15. The conduct of P. Ws. 1 and 4 and Baby in not having rendered any assistance to Kuruvilla at the time of occurrence and their conduct in not having gone to the place where his dead body lay even the next morning was commented upon by counsel appearing for the accused. It was submitted that P. W. 1 had admitted in his evidence that the next morning when he started from the house of P. W. 5 he travelled in a bus. that that bus passed along Manarkad-Thenganal road and that even at that time he did not get down at the scene of occurrence and see the dead body which was lying there. It was on account of fear that P. Ws. 1 and 4 and Baby did not remain at the place at the time of the occurrence and try to render assistance to Kuruvilla or prevent the accused from causing harm to him. Further prudence demanded their fleeing from the place as the accused were ten in number and they were armed. All that they could do at the time was to implore the accused not to kill Kuruvilla and that they did. The result of P. W. 4 imploring the accused not to kill Kuruvilla was to get from the sixth accused a hit with a wooden spear. P. W. 1 may have been really afraid of getting down from the bus at the scene of occurrence even the next morning. Further as Kuruvilla had died there was no purpose also to be served by his getting down there. But as soon as police came to the scene P. W. 1 emboldened himself and came there. He was present at the time of inquest. One has to visualise the situation in which P. Ws. 1 and 4 and Baby were at the time. There were many active members and sympathisers of the Marxist Party at Puthuppally. That party had a strong foothold there. The 10th accused was the Secretary of that party there. The formation of the Karshakasangham which was opposed to the Marxist party was not to the liking of members of the Marxist party. Ten to twenty days before the occurrence there was a quarrel between members of the Marxist party and Karshakasangham at Eramalloor about the putting up of bunds on paddy fields. There was also a quarrel between Kuruvilla and members of the Marxist party about agricultural labour at one Puthu-kari field which belongs to several persons. The whole atmosphere must have been surcharged with fear after the meeting of the Karshakasangham on the 13th evening was over. There was no residential house anywhere near the scene. The road there was desolate. There was therefore, nothing unusual if P. Ws. 1. 3 and 4 and Baby left the place at the time of the occurrence for safety instead of remaining there to render assistance to Kuruvilla. Although P. W. 3 had before the occurrence offer -ed to take P. Ws. 1 and 4 and Baby in his lorry after the occurrence he thought that to take them in his lorry was risky and that was why at the Eramalloor junction he asked them to get out of the lorry. P. Ws. 1 and 4 and Baby were in a room in the house of P. W. 5 for the rest of the night. At 7-15 A. M. P. W. 1 went out of that house. It was thereafter that he happened to pass through the scene of occurrence in a bus. His name is mentioned even in the first information statement.
16. The evidence of P. Ws. 1, 3 and 4 was attacked on the ground that they were partisan witnesses. It is true that P. Ws, 1 and 4 were members of the Karshakasangham but P. W. 3 was not a member of it. There is nothing to show that he even attended the meeting of that party held on the 13th evening. He is definitely not a partisan witness. Even if all of them were members of the Karshakasangham, that by itself is not a sufficient ground for disbelieving them. In a case like this where the occurrence takes place in the dead of night in a desolate place the only available witnesses may be partisan witnesses. No doubt their evidence has to be scanned with care. But if after careful scrutiny their evidence is found genuine there is nothing preventing courts from accepting it. In Masalti v. State of U.P. : 8SCR133 the Supreme Court, said:
Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses 'who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough. where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
The evidence of P. Ws. 1. 3 and 4 cannot be discarded on the sole ground that they are partisan witnesses.
17. The failure of the prosecution to the weapons used at the time of occurrence was relied upon on behalf of the accused to show that the evidence of the occurrence witnesses could not be believed, It is not in all cases that the police would be able to recover the weapons. There was sufficient time for the accused to remove the weapons after the occurrence. After P. Ws. 1, 3 and 4 and Baby left the place, as there was no one else there, it was easy for them to dispose of the weapons in such a manner as never to be traced. Therefore, from the fact that weapons have not been recovered, it cannot be inferred that it was not in the manner stated by P. Ws. 1, 3 and 4 that the occurrence took place,
18. All the accused were persons well-known to P. Ws. 1 and 3. P. W. 1 knew them for about 8 years and P. W. 3 for about 10 years past. There was. therefore no difficulty for them to identify all the accused persons, who came to the scene at the time.
19. It was a moonlit night. There was the light of the lorry also. Besides there was electric light from the street lamp-post about 180 feet away. There was enough light at the place for P. Ws. l, 3 and 4 to witness the occurrence.
20. P. Ws. 1 and 4 and Baby implored the accused not to kill Kuruvilla. Thereafter they got into the lorry for safety. It was at that time that the sixth accused rushed towards P. W. 4 and hit him with a wooden spear asking him to have a share of what was taking place there. P. W. 3 did not see it because he was then at the driver's seat.
21. All the injuries found on Kuruvilla are perfectly consistent with the prosecution version of the incident. As regards the injuries on P. W, 4 the trial Judge has observed that it cannot be conclusively said that they were caused by the sixth accused because P. W. 6. the doctor, who examined P. W. 4 was unable to give a definite answer that the incised injury found on P. W. 4 could be caused with a wooden spear and P. W. 7, the doctor who conducted autopsy on the body of Kuruvilla. deposed that a hit with a wooden spear could only cause a lacerated injury. The dimensions of the injury are 1' X i' X i' It is on the posterior aspect of right forearm. The evidence of P. W. 7 shows that for differentiating an incised injury from an incised-looking lacerated injury one has to look at the bottom of the in-jury to see whether there is bridging of the tissues and that that can be ascertained by an experienced person with the assistance of a hand lens. P. W. 4 went to the Vakathanam Dispensary early in the morning on the 14th. P. W. 6 is a doctor employed in the Changanacherry Government Hospital. As there was no medical officer in the Vakathanam Dispensary he was in charge of that dispensary in Dec. last. For attending to work in that dispensary he went there on the 14th and examined P. W. 4 only at 10 A. M. The evidence of P. W. 6 shows that he examined the injuries on P. W. 4 only with the naked eye. What P. W. 4 told P. W (5 when he examined him was that the injuries were caused as a result of hitting with a wooden spear and pelting of stones. The evidence of P. W. 6 shows that the injuries found on P. W. 4 could be caused in the manner stated by him and that an incised injury could be caused with the sharp end of a wooden spear. If the edge of a spear, even if it be wooden, is very sharp, one fails to see how an incised injury cannot be caused with it. Even if only an incised looking injury can be caused by it from the omission of P. W. 6 to examine the injury found on P. W. 4 with a lens to find out whether there was bridging of tissues, it cannot be taken that it was not one caused with the sharp edge of a wooden spear. There is the positive evidence of P. Ws. 1 and 4 that the injuries found on P. W. 4 were caused as a result of hitting with the sharp and of a wooden spear and pelting of stones. The evidence of an expert like a doctor is only opinion evidence. The medical evidence adduced in this case does no improbabilise the version of P. Ws. 1 and 4 as to how P, W. 4 happened to sustain injuries. The trial Judge was therefore not right in observing that it could not be conclusively said that the injury found on the forearm of P. W. 4 was inflicted by the sixth accused as alleged by the prosecution. The fact that P. W. 4 sustained injuries shows that he was actually present at the scene at the time.
22. The evidence of P. Ws. 1 and 4 that they and Baby and Kuruvilla had been to the house of P. W. 5 before the occurrence, the evidence of P. Ws. 1 3 and 4 that P. Ws. 1 and 4 and Baby had been to that house after the occurrence and the evidence of P. Ws. 1 and 4 that they remained in that house till the next morning are corroborated by the evidence of P. W. 5. He said that P. Ws. 1 and 4 and Baby had come with Kuruvilla to his house at 11 O'clock on the night of occurrence that they left his house by 12 O'clock, that Kuruvilla had a talk with him about the meeting which was held at Puthuppally junction, that Kuruvilla had asked him to go with him to Thiruvalla to meet there one S. John Jacob to chalk out the future programme of the party and that all of them left his house by 12 O'clock in the night. He also said that by 1-30 in the night P. Ws. l and 4 and Baby came to his house again that they were all then in an agitated state of mind, that they told him what had happened at the scene of occurrence and that they were in his house till next morning.
23. Counsel appearing for the accused attacked the evidence of P. Ws. 2 and 5. As regards P. W. 2 he submitted that his statement that he came to know that Kuruvilla was lying dead on the road from his children could not be believed and as regards P. W. 5 he submitted that he was party to several litigations and so could not be believed. Prosecution relies upon the evidence of P. Ws. 2 and 5 only for some limited purposes. Evidence of P. W. 2. who is a member of the Panchayat and so is a responsible man of the locality is relied upon only to show that it was he who gave the first information statement and so set the law in motion. Similarly the evidence of P. W. 5 is relied upon only to show that P. Ws. l and 4, Baby and Kuruvilla had been to his house before the occurrence and all of them except Kuruvilla had been taken to his house by P. W. 3 after the occurrence. It is true that in C C, Nos. 980 to 987 of 1970 on the file of the Sub Magistrate, Kottayam. he was examined as P. W. 2 and that he was disbelieved. The charge there was that the accused in that case had obstructed certain parishioners from entering the church. The judgment in those cases, copy of which is Ext. Dl, itself shows that there are two factions in the church there, one supporting P. W. 2 in that case and another opposing him. The reason for his being party to several cases is not far to seek. It is true that one of the documents filed on his side in a small cause suit was found to be forged but there is no evidence that it was found there that it was he who forged it or that it was produced after knowing it to be forged. He is the President of the Karshakasangham at Eramalloor and it was only likely that Kuruvilla who was the Vice President of the Karshakasangham at Puthuppally would have gone to him for help and advice and P. Ws. 1 and 4 and Baby would have gone to him for asylum on seeing the attack on Kuruvilla by members of the Marxist party. The circumstances relied upon by the accused are insufficient to disbelieve the evidence of P. W. 5 in so far as it relates to P. W. 1 and others going to his house on the 13th night.
24. There was a motive for the occurrence. The two parties. Marxist Party and Karshakasangham, were bitterly opposed to each other. There were disputes between them even 10 to 20 days before the occurrence. It has come out in evidence that Puthuppally is a stronghold of the Marxist Party. It has also come out that Karshakasangham was organised there only one year back. Kuruvilla was the person who organised the meeting at the place on the 13th evening. He was also the Vice President of the Karshakasangham at Puthuppally.
25. We have carefully gone through the entire evidence of all these witnesses. On all material matters the evidence of P, Ws, 1. 3 and 4 is clear, consistent and convincing. All the facts spoken to by them strike as nothing but truth. They are quite natural witnesses. There is absolutely nothing in their evidence to disbelieve them. They corroborate each other. Their evidence is also corroborated by the circumstances brought out in the case. The trial Judge believed them and we consider rightly. It is proved beyond reasonable doubt that it was in the manner spoken to by P. Ws. 1. 3 and 4 that the occurrence took place.
26. Let us now turn to the question whether the accused were members of an unlawful assembly. The trial Judge has found that accused 1 to 5 were members of an unlawful assembly, that the common object of the unlawful assembly was to murder Kuruvilla and that it was in furtherance of it that Kuruvilla was murdered. At the same time he has found that accused 6 to 10 were not members of the unlawful assembly. Except the mere fact that no overt act was done by them in causing injuries on Kuruvilla he has not adverted to the other circumstances brought out in the case before entering that finding. When P. W. 3 was coming in lorry he saw the accused proceeding in the direction of the scene of occurrence. They were armed with weapons like choppers and wooden spears. After seeing them only 100 feet away when he came to the scene he found' P. Ws. 1 and 4 and Baby and Kuruvilla coming from the opposite direction. He was a man of the locality. It was apprehending danger for them who were unarmed at that time, that he warned them against proceeding east and offered to take them in his lorry. It was not for an innocent purpose that the accused were at midnight proceeding west along the road armed with weapons. By the time P. W. 3 had finished talking with P. Ws. 1 and 4 and Baby and Kuruvilla about the impending danger all the accused persons had already reached the scene. As soon as they came to the place the first thing that was done was attack by the first accused on Kuruvilla. At that time none of the accused caused any harm to the persons who were with him. He was practically chosen for the purpose of attack. The mode of attack was almost in a planned manner. By the first three cuts On the head he was completely disabled. They were by the first, second and the third accused. Thereafter the first accused cut him again, this time on the right shoulder. It was after all that that the fourth accused stabbed him and the fifth accused beat him. It was an organised attack. It has come out in the evidence of P. W. 4 that when the first accused cut Kuruvilla all the other accused persons rushed to the place. Accused 6 to 10 were close to accused 1 to 5 when the occurrence took place. Stones were pelted at the lorry when it was taking P. Ws. 1 and 4 and Baby away from the place. It was not out of idle curiosity that accused 6 to 10 joined accused l to 5. When P. W. 4 implored the accused not to kill Kuruvilla the sixth accused advanced towards him and hit him with a wooden spear asking him to have a taste of what was taking place there. The accused must have been aware of the movements of Kuruvilla before they proceeded to the scene of occurrence. It was easy for them to know that because the father of the fourth accused was conducting a hotel at the Puthuppally junction. As to whether an unlawful assembly was formed and what exactly was the common object of the unlawful assembly are oftentimes matters to be inferred from circumstances. The conduct of accused 6 to 10 before and at the time of occurrence clearly indicates that they were not mere neutrals. They knew beforehand that the murder would be committed in prosecution of the common object and were united with accused 1 to 5 in the purpose of committing the murder. In : 8SCR133 Masalti v. State of U.P. 40 persons were charged for committing several offences, the principal offence being one under Section 302 read with Section 149 of the Indian Penal Code. The trial Judge acquitted 5 persons and convicted the remaining 35. For the offence under Section 302 read with Section 149 he sentenced 10 accused persons to death and 25 others to imprisonment for life. The 35 accused persons who were convicted by the trial court filed appeals before the High Court. The High Court held that 7 out of the 35 persons before it were not guilty and acquitted them. In regard to the remaining 28 accused persons including the ten sentenced to death the High Court confirmed the convictions and sentences. In the incident which took place in that case five persons were murdered. In the appeals filed before the Supreme Court in the case of three of the accused persons the sentence of death was reduced to imprisonment for life as they were only 18, 23 and 24 years old. With that sole modification all the appeals were dismissed. Dealing with the question whether persons of the assembly who were present at the time of occurrence but who had not done any overt act. could be made liable under Section 149 of the I. P.C. the Supreme Court said in that case.
Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh A.I.R. 1956 SC 181. In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 I. P, C. The argument is that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so. the High Court was in error in holding that the appellants were members of an unlawful assembly. The observation on which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin : 1956CriLJ345 the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, I. P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it. is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by. and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin : 1956CriLJ345 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact. Section 149 makes it clear that 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, and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin : 1956CriLJ345 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests
The trial Judge was under the impression that only persons who had! done overt acts at the time of occurrence could be members of unlawful assembly. That is unreasonable and wrong and has resulted in positive miscarriage of justice. The circumstances brought out in the present case un- mistakably show that all the accused persons were members of an unlawful assembly, that they came prepared for an attack and that the common object of the unlawful assembly was to do away with Kuruvilla who was the Vice President of the Karshakasangham and who had organised the meeting that day and we find accordingly.
27. As regards hurt caused to P. W, 4 by the sixth accused it was caused only at the spur of the moment and not in furtherance of the common object of the unlawful assembly.
28. It was submitted that only one person had been murdered and that the trial Judge should not have ordered five persons to be hanged for that, Similar argument was advanced in : 8SCR133 also and the Supreme Court said:
As to the sentence, the High Court realised that 10 persons had been ordered to be hanged and that it could not be said about all of them, except Laxmi Prasad that they had actually fired a gun and caused the death of any of the five victims. Even so the High Court held that since they all formed members of the unlawful assembly the common object of which was to exterminate the male members of the family of Gayadin. they were all equally guilty of murder under Section 302/149, I. P.C. and it would not therefore, be unreasonable to impose the penalty of death on such of the assailants as were shown to have carried guns in their hands on that occasion. That is how the High Court upheld the orders of conviction passed against 28 persons who had brought their cases before it in appeal and confirmed the sentences of death imposed on 10 of them.
That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons. Mr. Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case, the High Court has adopted a mechanical rule, The High Court has held that the 10 persons who carried firearms should be ordered to be hanged, whereas others who have also been convicted under Section 302/149, should be sentenced to imprisonment for life. It is true that except for Laxmi Prasad, the charge under Section 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawful assembly of which they were members, and the argument is that unless it is shown that a particular accused person has himself committed the murder of one or the other of the victims, the sentence of death should not be imposed on him. In other words, the contention is that if a person is found guilty of murder under Section 302/149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death...
As a mere proposition of law. it should be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself. Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on the facts and circumstances of each case.
In the present case it was a case of coldblooded murder of an unarmed man. He was butchered to death. Accused 4 and 5 mercilessly inflicted injuries after accused 1 to 3 had cut Kuruvilla with choppers and caused fatal injuries on him. Accused 6 to 10 did not cause any injury on him.
29. In the result taking all the circumstances into consideration these cases are disposed of as follows: The convictions and sentences of accused 1 to 5 are confirmed, their appeals are dismissed and the Reference is accepted. The acquittal of accused 6 to 10 is set aside and the appeal filed by the State is allowed to the following extent. Accused 6 to 10 are convicted under Section 148 of the I, P.C. and sentenced to undergo rigorous imprisonment for one year. They are also convicted under Section 302 read with Section 149 of the I. P.C. and sentenced to undergo imprisonment for life. The sixth accused is further convicted under Section 324 of the I. P.C. and sentenced to undergo rigorous imprisonment for one year. The sentences of imprisonment imposed on accused 6 to 10 shall run concurrently.
E.K. Moidu, J.
P. Ws. 1. and 4 were the eye-witnesses to the ocurrence and P. W. 5 gave circumstantial evidence to corroborate their evidence. There was absolutely no ground to discard or discredit the evidence of these witnesses. We have gone through the evidence exhaustively and we find neither a contradiction nor any variation in the evidence of these witnesses. The status of these witnesses was also not questioned in cross-examination. The only circumstance pointed out during the argument of the learned Counsel was that these witnesses could not have seen the occurrence and that if they had seen. they would have reported the incident to the Police without delay. The evidence was clear to show that these witnesses would not have dared to go out of the place where they stayed in the night after the gruesome murder was committed. Neither P. W. 1 nor P. W. 4 was prepared to get out of the house of P. W. 5 at mid-night. P. W. 3 had to go to his house by a different route and though he made an attempt to inform the police he did not succeed. On the next day P. W. 3 had to go to Erumeli with the lorry and he returned home only by about 5-30 P. M. within a short time thereafter he was questioned by Police. P. W. 1 had been questioned during the inquest which began at 11 A. M. on the 14th and P. W. 4 had also been questioned the same evening. The prosecution evidence, which was reliable, conclusively showed that it was in the manner alleged by the prosecution that the incident took place. 1 have no hesitation, therefore, that these accused persons have to be convicted and sentenced under various sections as found in the Judgment of my learned brother. It has become the practice on the part of some miscreants these days to commit to gruesome murders due to political reasons. Whether they are imbued with any ideology or with any political rivalry, such fantastic criminal acts deserve no sympathy. I have nothing more usefully to add to the judgment just delivered by my learned brother in court and with which I completely agree.