Prathap And Another v. State Of Kerala .

S.S Nijjar, J.— These two appeals have been filed against the common judgment of the High Court of Kerala at Ernakulam dated 28-6-2004 in Criminal Appeal No. 432 of 2003 and Criminal Appeal No. 873 of 2003 whereby the High Court dismissed the appeal filed by the appellants herein by confirming the judgment of the trial court convicting and sentencing them under Sections 302 and 149 of the Penal Code, 1860. By the same judgment, their conviction under Section 120-B was set aside.

2. The appellants along with eight other persons were tried by the Sessions Court, Kollam, in Sessions Case No. 564 of 1999 for the offences punishable under Sections 114, 143, 147, 148, 120-B and 302 read with Section 149 of the Penal Code.

3. It was the case of the prosecution that the deceased Kochukuttan and Murali (CW 11) had assaulted the appellants on 19-5-1997 “at 9.00 p.m at a place at Chaithram Restaurant” run by the appellant, Devakumar alias Jayakumar. Seeking revenge, the two appellants, Rajeev (A-3) and Venu (A-4) assembled at Chaithram Restaurant at Veliyam Junction on 20-6-1997 at 7.45 p.m and hatched a conspiracy to murder Kochukuttan. On 24-6-1997, all the ten accused in furtherance of a common object, armed with deadly weapons such as swords, iron rods, chopper, knife and stick, etc. came to Chaithram Restaurant in a jeep KL 2B 9938. The jeep, which belonged to CW 16, was driven by Venu (A-4). All the accused came out of the jeep at a place in front of the restaurant. Accused Prathap (hereinafter referred to as “A-1”) and Rajeev (hereinafter referred to as “A-3”) were in the front whereas Padmachandran (A-5) and Deepu (A-10) followed behind them. They came to a place in front of Harishree Bakers on the eastern side of Kottarakkara Oyoor Public Road at Veliyam Junction at about 7.45 p.m At that time, the deceased was talking to PW 1, Hareendranathan. A-3 Rajeev called Kochukuttan by saying “Kochukuttan come here”. Thereafter, Appellant 1 Prathap (A-1) assaulted the deceased with his sword and caused an injury on his head. At the same time, Appellant 2 (A-2) shouted “cut this man”. He was also armed with a sword and made a cut with the same on the side of the chest of the deceased. As a result of the injuries, Kochukuttan fell down on the road on the side of the verandah of Harishree Bakers. Thereafter, Padmachandran (hereinafter referred to as “A-5”), Arjunan (hereinafter referred to as “A-6”), Siddikishan (hereinafter referred to as “A-7”), Saji alias Sajith (hereinafter referred to as “A-8”), Rajesh (hereinafter referred to as “A-9”) and Deepu (hereinafter referred to as “A-10”) are alleged to have inflicted various injuries with their weapons such as iron rods, chopper, sword, knife and stick. After causing mortal injuries to Kochukuttan, the assailants left the place in the same jeep in which they had arrived. The deceased was moved to the hospital initially in a car driven by CW 14. However, the lights of the car developed some problem and the deceased was transferred to the jeep driven by CW 15. Kochukuttan succumbed to the injuries at 8.10 p.m on 24-6-1997. Upon completion of the investigation, the ten accused persons were put on trial.

4. The prosecution cited PW 1, PW 2, PW 4 and PW 5 to PW 10 as eyewitnesses. It is noticed by the High Court that PW 6 to PW 10 were declared hostile as they did not fully support the prosecution story. PW 3 was examined mainly to prove the criminal conspiracy which had been hatched at the hotel of Chaithram owned by A-2, the appellant in Criminal Appeal No. 873 of 2003 in the High Court. The trial court convicted A-1, A-2, A-5, A-6 and A-7 under Section 302 IPC and sentenced them to imprisonment for life and a fine of Rs. 20,000 each, in default to undergo RI for a period of 6 months. A-1, A-2, A-5, A-6 and A-7 were also convicted under Section 149 and sentenced to RI for 1 year each. A-1, A-2 and A-4 were also convicted of the offence under Section 120-B IPC and sentenced to RI for 5 years each. Accused A-3 and A-8 to A-10 were acquitted.

5. The two appellants herein challenged the aforesaid judgment by filing Criminal Appeals Nos. 873 and 432 of 2003 before the High Court. The other accused persons filed Criminal Appeals Nos. 319, 422 and 479 of 2003 and 400 of 2004. The State of Kerala preferred Criminal Appeal No. 901 of 2003 against the acquittal of five accused persons. All the appeals were heard together by the High Court and decided by a common judgment dated 28-6-2004. The appeals filed by the two appellants herein against the conviction and sentence under Section 302 IPC read with Section 149 IPC were dismissed. However, the conviction of these two appellants under Section 120-B was set aside. The appeals filed by the State against the acquittal of A-3 and A-8 to A-10 were also dismissed. At the same time, the appeals filed by Accused 4, 5, 6 and 7 were allowed and their conviction as well as the sentence was set aside. These two appeals have been filed by the two appellants against the judgment of the High Court rendered in Criminal Appeals Nos. 873 and 432 of 2003.

6. We have heard the learned counsel for the parties.

7. The submissions made by the learned counsel for the appellants before the High Court have been reiterated before this Court. Learned counsel appearing for the appellants, Mr C.N Sreekumar, has submitted that the presence of the eyewitnesses is doubtful. Even if the alleged eyewitnesses were present, their evidence cannot be relied upon as it would have been impossible to identify the assailants as the scene of occurrence was not a well-lit place. The assault which led to the death of Kochukuttan is alleged to have taken place at about 7.45 p.m At the relevant time, there was load-shedding of electricity in Kerala. On the date of the incident, the load-shedding commenced at about 7.30 p.m Therefore, it would not have been possible to identify the appellants. It would also not have been possible for the eyewitnesses to notice the weapons which were allegedly used by all members of the unlawful assembly. Learned counsel further submitted that the eyewitnesses have failed to state categorically as to which injury was caused by which appellant and with which weapon.

8. The learned counsel submitted that the eyewitnesses' account is highly suspicious. Attacking the evidence of PW 1, the learned counsel has submitted that the witness is the brother-in-law of the deceased. He has been deliberately introduced by the prosecution. If he was an actual witness to the incident, he would have tried to save his brother-in-law and would have certainly received some injuries. Apart from this, when the deceased was being moved to the hospital, this witness did not accompany the deceased in the same car. According to the learned counsel, the evidence of PW 2, suffers from the same infirmities.

9. Learned counsel further submitted that the High Court having acquitted all the accused from the charge of criminal conspiracy, there was hardly any evidence of unlawful assembly or common object. Therefore, a conviction under Section 302 IPC cannot be recorded on the basis of such evidence. At best, the appellants could have been convicted under Section 304 IPC.

10. In support of the submissions, the learned counsel has relied on three judgments of this Court viz.:

(1) Siri Kishan v. State of Haryana (2009) 12 SCC 757,

(2) Mummidi Hemadri v. State of A.P (2007) 13 SCC 496,

(3) Chanda v. State of U.P (2004) 5 SCC 141

11. Learned counsel further submitted that in any event, the evidence of the eyewitnesses cannot be believed as there was no identification parade held by the investigating officer to identify the accused persons who have actually committed the offence. It is further submitted by the learned counsel that the identification of the appellants in the court is of no consequence as the appellants along with the other co-accused had been shown to the witnesses in the police station. Their weapons were also shown to the witnesses. As a result of these infirmities, the co-accused of the appellants have been acquitted. Therefore, on the principle of parity, the appellants also deserved the benefit of doubt.

12. According to the learned counsel, apart from the unsatisfactory identification of the appellants, the case of the prosecution has not been supported by PW 6 to PW 10, who were having shops in the neighbourhood at the junction where the assault had taken place. Therefore, it was submitted that the very genesis of the assault has not been proved.

13. On the other hand, Mr R. Sathish, learned counsel appearing for the State of Kerala submitted that the trial court as well as the High Court have given concurrent findings. The evidence having been appreciated twice, by the trial court as also the High Court, does not leave any iota of doubt as to the involvement of the appellants in the murder of the deceased. He has submitted that the first information report was registered on the basis of the first information statement given by the brother-in-law of the deceased, PW 1 very soon after the incident. The consistent story given by PW 1 was fully corroborated by the eyewitnesses' account of PW 2. The conspiracy has been duly proved by the evidence of PW 3.

14. Mr Sathish has further submitted that the submission of the learned counsel with regard to the place of assault being not properly lit is factually incorrect because Veliyam Junction, where the murder took place, is a very busy place and well lit throughout the night. Learned counsel further submitted that the injuries which caused the death of Kochukuttan have been specifically pointed out by the medical evidence in the inquest report as also in the post-mortem report.

15. Coming to the evidence with regard to the identification of the appellants, the learned counsel submitted that any infirmities in not holding the identification parade would be totally irrelevant in case of the appellants as they were previously well known to PW 1 and PW 2. The evidence of PW 1 and PW 2 has been duly corroborated by the evidence of other eyewitnesses PW 4 and PW 5. So far as the submissions with regard to the non-identification of the weapons and the non-attribution of the particular injuries to the appellants are concerned, the learned counsel submitted that their participation is such that they would not be entitled to the benefit of the very limited exception which is permissible to a bystander in a charge under Section 149 IPC.

16. Learned counsel further submitted that this is a clear case of enmity as the deceased and CW 11 had attacked the appellants on the night before the murder. With regard to the load-shedding, learned counsel has submitted that the entire assault incident took place within a span of 3 to 4 minutes. It is alleged to have commenced at 7.25 p.m and would have been over by 7.28 p.m The load-shedding, if any, does not commence till after 7.30 p.m Even otherwise, it is submitted that on the fateful night of 24-6-1997, it was a moonlit night, therefore, it would not be a case of complete darkness at night.

17. We have given due consideration to the rival submissions made by the learned counsel. The High Court in the impugned judgment has clearly observed that the identity of the deceased and the place of occurrence, etc. are not disputed in this case. Post-mortem of the dead body of Kochukuttan was conducted by PW 18 at 11.40 a.m on 25-6-1997. Ext. P-17 is the post-mortem certificate which shows that there are 20 ante-mortem injuries. PW 16 has opined that the death was due to injuries sustained to the chest and left palm, that is, Injuries 14 to 20 and death can also be due to the cumulative effect of all the injuries. Both the courts have concluded that the medical evidence is consistent with the eyewitnesses' account given by PW 1, PW 2, PW 4 and PW 5. As noticed above, PW 6 to PW 10 although cited as eyewitnesses were declared hostile and did not support the prosecution.

18. The trial court formulated five points for consideration, which are as follows:

(1) Whether the death of Kochukuttan was because of the injuries sustained in the occurrence?

(2) Whether the accused persons had inflicted injuries on the deceased?

(3) Whether the accused persons A-1 to A-4 had conspired together to cause the murder of deceased Kochukuttan?

(4) What offence, if any, the accused persons had committed?

(5) Regarding sentence?

19. On Point 1, the trial court concluded on the basis of the findings in the inquest report as follows:

“The inquest on the dead body of the deceased was conducted by PW 19, Sub-Inspector on the morning on 25-6-1997 at the District Hospital on the direction given by the Circle Inspector, Kottarakara and Ext. P-20 is the inquest report prepared by PW 19.

In Ext. P-20, PW 19 had noted the injuries found on the dead body. By Ext. P-20, the cause of death is due to the injury sustained by beating, stabbing and cutting. In Ext. P-20, it is stated that as per the information received, the injuries were inflicted on the deceased by A-1, A-2 and others due to their animosity against deceased Kochukuttan.

Ext. P-17 is the post-mortem certificate prepared by PW 16, doctor who has conducted the post-mortem examination on the dead body of the deceased. In Ext. P-17, 20 ante-mortem injuries are noted on the body of the deceased and the cause of death stated in Ext. P-17 is ‘due to the injury sustained to the chest and left palm’.”

20. In the post-mortem report (Ext. P-17), the following injuries were noticed on the deceased:

(1) Incised wound 4.5 × 2 cm skin-deep oblique reflecting a flap backwards on the left side of face, the upper-outer end being 4 cm in front of ear.

(2) Incised wound 5 × 1 cm bone-deep obliquely placed on the left side of head, the lower-inner end being 9 cm outer to midline 6 cm above eyebrow.

(3) Abrasion 2 × 1 cm on the left side of forehead 2 cm outer to midline and 2 cm above eyebrow.

(4) Incised wound 3.5 × 0.5 cm bone-deep obliquely placed on the left side of back of head, the lower-inner end being 5 cm outer to midline and 18 cm above root of neck.

(5) Incised punctured wound 3 × 1 × 9 cm oblique on the right side of root of neck, the lower-inner blunt end being 10 cm below right ear. The upper-outer end was sharply cut. The wound was directed downwards, forwards and to the left through the muscle plane.

(6) Incised punctured wound 2.5 × 1 × 6.5 cm oblique on the right side of root of neck, its lower-inner blunt end being 2 cm above Injury 5. The upper-outer end was sharply cut. The wound was directed downwards, forwards and to the left through the muscle plane.

(7) Abraded contusion 2 cm × 1.5 × 0.5 cm on the front of right shoulder 2 cm inner to its tip.

(8) Incised wound 1.8 × 0.5 cm skin-deep obliquely placed on the right side of front of neck, the lower-inner end being 5 cm outer to midline 2.5 cm above collar bone.

(9) Linear abrasion 7.5 cm long oblique on the outer front and outer aspect of right arm, the lower-inner end being 9 cm above elbow.

(10) Incised wound 7 × 0.2 × 10 cm oblique on the outer aspect of right arm, the lower-inner end being 9 cm above elbow.

(11) Lacerated wound 0.8 × 0.8 × 1.5 cm on the outer aspect of right arm 0 cm above elbow.

(12) Lacerated wound 1 × 1 cm bone-deep on the outer aspect of right arm 2 cm above elbow. Underneath the humerus was found fractured 4 cm above elbow.

(13) Abrasion 1.5 × 1 cm on the outer aspect of right elbow.

(14) Incised wound 10 × 1.5 × 2 cm obliquely placed on the left palm, the lower-outer end was in the web space in between the middle and ring finger. Underneath the muscle tendon and vessels were found sharply cut.

(15) Incised wound 2.5 × 0.5 cm skin-deep on the back of left ring finger 4 cm below its root.

(16) Incised wound 8 × 3 × 3 cm horizontal on the back and outer aspect of left forearm, 9 cm below elbow, underneath the muscles, the radius bone was found cut and separated.

(17) Incised wound 9 × 3.5 cm skin-deep at its upper part and 3 cm deep at its lower part oblique with tailing upwards, on front of left side of chest, the lower-inner end being 3.5 cm outer to middle and 9.5 cm below the upper end of sternum.

(18) Incised wound 11 × 1.5 × 0.5 cm oblique on the right side of back of trunk, the lower-inner end being 11.5 cm outer to midline 4 cm below root of neck.

(19) Incised wound 2.5 × 1 cm skin-deep oblique on the back of right side of trunk, the lower-inner end being 11.5 cm outer to midline 9 cm below root of neck.

(20) Incised penetrating wound 2.5 × 1 cm obliquely placed on the back of left side of trunk, the lower-inner sharply cut end was 5.5 cm outer to midline and 7 cm below root of neck. The outer end of the wound showed splitting of the skin. The chest cavity was scan penetrated through the fifth intercostal space, after cutting the upper border of the fifth rib. The upper lobe of the back aspect of the lung was scan punctured 2 × 0.5 × 4 cm. The left chest cavity contained 300 ml of fluid blood. The track of the wound was directed downwards and forwards to the right. The total minimum depth of the wound was 14 cm.

21. The trial court also noticed that PW 16, the doctor who conducted the post-mortem examination stated, “that the death was due to the injuries sustained to the chest and the left palm, that is, Injuries 14 to 20”. These injuries were caused by sharp-cutting weapons such as sword or chopper. Thus, the inquest report (Ext. P-20) and the post-mortem report (Ext. P-17) would clearly show that Kochukuttan died as a result of the injuries sustained in the fatal assault by the appellants and the other co-accused.

22. The trial court on the basis of evidence given by the eyewitnesses concluded that the participation in the assault by the appellants herein is proved beyond doubt. The conspiracy was held to be proved on the basis of the evidence given by PW 3. On the basis of the findings, the trial court convicted the two appellants along with the other co-accused as noticed above.

23. The High Court on a re-examination of the entire body of the evidence has also concluded that the ocular evidence of PW 1 cannot be discarded simply on the ground that he is the brother-in-law of the deceased. The High Court has also held that there is clear evidence that both the appellants had participated and formed an unlawful assembly with a common object to commit the murder of the deceased. The High Court, therefore, found that there is clear evidence with regard to the appellants having committed the offence under Section 149 IPC.

24. A perusal of the evidence of PW 1 leaves no manner of doubt about the entire sequence of events. He has graphically recounted the arrival of the assailants in the jeep. He even gave the sequence and the order in which they had advanced towards Kochukuttan. He has stated in categoric terms that he had known the appellants herein for a number of years. He had seen the others in the vicinity and at Veliyam Junction. He has categorically stated about the participation of both the appellants. He has named both the appellants in the first information statement. He has given a graphic account of the injuries caused by both the appellants. He has also narrated how the accused went away in the jeep after inflicting mortal injuries on the deceased. He also talks about the load-shedding which according to him commenced from 7.30 p.m He further narrated that the car in which the injured Kochukuttan was being taken had developed electrical problem and that the deceased had to be removed to a jeep.

25. PW 1 has categorically stated that by reason of enmity, A-1 and A-2 together have murdered his brother-in-law. He identified the weapons wielded by the appellants. He could also recognise the apparels worn by the accused with clear distinction. In his examination, he also stated that the incident was clearly seen in the street light and light of the nearby shops. He stated that at that time, three bulbs were glowing over the shop where the incident happened. There was also mercury street light. The incident could be seen clearly. He also stated that the vicious assault was the result of instigation of A-2.

26. This witness (PW 1) was cross-examined at length. In his cross-examination, he has stated that deceased Kochukuttan was a Marxist party worker. He reiterated that he has stated before the police that A-1 had taken a sword which was concealed at the back of his waist and had stabbed at the left side of the head of the deceased. He also went on to say that A-2 also stabbed Kochukuttan on the left side of his chest, pursuant to which the deceased had fallen down to the road from the cement thinna. Such deposition of PW 1 also gets strength from the seizure of MOs 13 and 14 i.e portion of bloodstained cement and portion of removed cement without blood respectively. He also reiterated that he had narrated the acts done by each and every accused. He reiterated that he is able to identify all the accused persons.

27. In the cross-examination, PW 1 seems to have further strengthened the case of the prosecution. While answering the numerous questions posed by the defence counsel, he elaborated that there was previous enmity between the deceased and the accused persons. So there was clear motive for the appellants to assault the deceased. He also stated that the police had not recorded the version as he had narrated. He had definitely told the police about the signs for identification of the accused. He admitted that all the accused were not the residents of the place of occurrence. However, the appellants herein were certainly local residents. He even went on to narrate that the deceased told him about two weeks ago that the appellants had attempted to kill him through hired people. He categorically states in the cross-examination that the entire incident of assault took three minutes. He also stated that the deceased used to go to the junction quite regularly by about 7.00 p.m and he would usually go home by 9 p.m

28. In our opinion, the trial court as well as the High Court correctly relied upon the unflinching, coherent and consistent evidence given by PW 1. The evidence given by PW 1 has been corroborated by PW 2 in every material particular. From the above narration, it becomes apparent that the submission with regard to the scene of crime not being well lit is without any substance. Similarly, the criticism with regard to the identification parade not having been held is of no consequence. PW 1 and PW 2 have clearly stated that the appellants herein were previously known to them. PW 1 certainly even knew about the previous enmity between the deceased and the appellants.

29. We see no reason at all to disbelieve the evidence of the eyewitnesses. The weapons used by the appellants and the injuries caused have been specifically mentioned by PW 1 and PW 2. There were 20 ante-mortem injuries on the deceased. Recoveries of the swords used by them were made at the instance of the appellants. Recoveries of other weapons, clothes worn by the accused on the day of the assault were also made at the instance of the other accused. As stated above, medical evidence also leads to the conclusion that the death has resulted from the injuries caused by the appellants and the other accused with their respective weapons. In view of the proven facts in this case as noticed by the trial court, the High Court and by us above, it becomes evident that the appellants had acted with a common object to eliminate the deceased.

30. This Court delineated the circumstances in which constructive liability can be fastened on the accused, in Bhagwan Singh v. State of M.P (2002) 4 SCC 85, wherein it was observed:

“9. Common object, as contemplated by Section 149 of the Indian Penal Code, does not require prior concert or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. When a concerted attack is made on the victim by a large number of persons armed with deadly weapons, it is often difficult to determine the actual part played by each offender and easy to hold that such persons who attacked the victim had the common object for an offence which was known to be likely to be committed in prosecution of such an object. It is true that a mere innocent person, in an assembly of persons or being a bystander does not make such person a member of an unlawful assembly but where the persons forming the assembly are shown to be having identical interest in pursuance of which some of them come armed, others though not armed would, under the normal circumstances, be deemed to be the members of the unlawful assembly. In this case the accused persons have been proved to be on inimical terms with the complainant party. The enmity between the parties had been aggravated on account of litigation with respect to the dispute over the mango trees. Accused persons who came on the spot are shown to have come armed with deadly weapons. The facts and circumstances of the case unequivocally prove the existence of the common object of such persons forming the unlawful assembly who had come on the spot and attacked the complainant party in consequence of which three precious lives were lost. The High Court was, therefore, justified in holding that the accused persons, involved in the occurrence, had shared the common object.”

(emphasis supplied)

31. The aforesaid proposition was further reiterated in Chanda v. State of U.P (2004) 5 SCC 141:

“8. The pivotal question is applicability of Section 149 IPC. The said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine 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 in Section 141. It cannot be laid down as 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 an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141.”

32. In the present case we are unable to accept the submission that the appellants were perhaps unaware that the murderous assault, intended to be committed by them, would, in all probability, cause the death of Kochukuttan. We have earlier noticed that both the trial court as well as the High Court have considered the specific injuries caused by the appellants with swords. As noticed above, there were 20 ante-mortem injuries on the deceased. According to the opinion of the doctor, the death was due to injuries caused on the chest and on the left palm. It is further observed that the death could also have resulted from the cumulative effect of all other injuries. Therefore, there is no manner of doubt that Kochukuttan died as a result of injuries caused by the appellants along with the other accused.

33. We also do not find any substance in the submission of the learned counsel of the appellant that since all the other co-accused have been acquitted, on the ground of parity the appellants herein also deserve to be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who had been convicted.

34. Both the courts below have applied the aforesaid principle in distinguishing the case of the appellants herein from those who have been acquitted. To remove any doubt we may emphasise that the appellants herein were known to be associates of the deceased. They had previous social interaction. For some time they had been having differences of opinion. This had led to an assault by the deceased and his companion Murali (CW 11) on the appellants herein, namely, Prathap (A-1) and Devakumar (A-2). Consequently, the appellants herein had wanted to settle the score with the deceased. They had a clear motive. This apart, PW 1 and PW 2 not only identified the appellants herein as assailants with swords but also indicated the injuries inflicted by them on the deceased. On the other hand the accused persons who had been acquitted were not known to PW 1 and PW 2. In fact PW 1 in the evidence had categorically admitted that the other accused were not from the locality but were sometimes seen at Veliyam Junction. In our opinion the courts below rightly declined to acquit the appellants on the principle of parity.

35. The power of the courts to distinguish the cases of one or more of the accused from the other(s) is far too well recognised to need reiteration. Still, we may notice the principle as stated in Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 wherein this Court observed as follows:

“15. … Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons.”

36. In our opinion the trial court as well as the High Court rightly convicted the appellants as the facts and circumstances of the case unequivocally prove the existence of the common object of the appellants. They had come looking for Kochukuttan armed with deadly weapons with the intention of causing grievous bodily injuries. There was a pre-planned attack. They located him and caused serious injuries with swords, choppers and other weapons, which led to his death. Thus they were rightly convicted and sentenced for the offence under Sections 302/149 IPC.

37. We are also of the considered opinion that the concurrent views taken by the trial court as also the High Court cannot be said to be either clearly illegal or manifestly erroneous and do not call for any interference under Article 136 of the Constitution of India.

38. In view of the above, both the appeals are dismissed.