The essential requirement for conviction under Section 302 read with Section 149 IPC is the presence of five or more persons sharing the common object of the unlawful assembly.

Headnote:
CRIMINAL LAW - UNLAWFUL ASSEMBLY - CONVICTION UNDER SECTION 302 READ WITH SECTION 149 IPC - APPLICABILITY - ESSENTIAL REQUIREMENTS - PRESENCE OF FIVE OR MORE PERSONS SHARING COMMON OBJECT - IDENTIFICATION OF ASSAILANTS - TEST IDENTIFICATION PARADE - FAILURE TO CONDUCT - EFFECT - RE-APPRECIATION OF EVIDENCE - POWER OF APPELLATE COURT - SCOPE - VICARIOUS LIABILITY - PRINCIPLE - APPLICABILITY - ACQUITTAL OF SOME ACCUSED - EFFECT - REVERSAL OF ACQUITTAL - CONDITIONS - IDENTIFICATION OF ACCUSED - SUFFICIENCY - EVIDENCE - CONSIDERATION - REJECTION OF TEST IDENTIFICATION PARADE - JUSTIFICATION - IDENTIFICATION IN COURT - EVIDENTIARY VALUE - FACTORS TO BE CONSIDERED - PRESENCE OF ALL ACCUSED AT TIME OF OCCURRENCE - INFERENCE - COMMON OBJECT - SHARING OF - INDIVIDUAL OVERT ACT - RELEVANCE - CONVICTION UNDER SECTION 302 READ WITH SECTION 149 IPC - SUSTAINABILITY - APPEAL - DISMISSAL.
Fact of the Case:

Six accused persons faced trial for offences 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.
Finding of the Court:

The court below came to the conclusion that the appellant/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 the 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.
Issues: 1. Whether the appellants can be convicted under Section 302 read with Section 149 IPC in the absence of a finding that there were five or more persons sharing the common object of the unlawful assembly? 2. Whether the failure to conduct a test identification parade renders the identification of the accused in court inadmissible? 3. Whether the appellate court can re-appreciate the evidence to find the constructive criminality of the remaining accused and rope them in with the aid of Section 149 IPC? 4. Whether the acquittal of some of the accused can lead to the reversal of the conviction of the remaining accused under Section 302 read with Section 149 IPC? 5. Whether the identification of the accused in court can be rejected solely on the ground that a test identification parade was not conducted?
Ratio Decidendi: 1. The essential requirement for conviction under Section 302 read with Section 149 IPC is the presence of five or more persons sharing the common object of the unlawful assembly. 2. The failure to conduct a test identification parade does not render the identification of the accused in court inadmissible, especially when there is sufficient evidence to establish the identity of the accused. 3. The appellate court has the power to re-appreciate the evidence to find the constructive criminality of the remaining accused and rope them in with the aid of Section 149 IPC. 4. The acquittal of some of the accused does not automatically lead to the reversal of the conviction of the remaining accused under Section 302 read with Section 149 IPC. The court must examine the evidence on record to determine whether the remaining accused were members of the unlawful assembly and shared the common object. 5. The identification of the accused in court cannot be rejected solely on the ground that a test identification parade was not conducted. The court must consider all the evidence, including the circumstances of the occurrence, the nature of the assault, and the testimony of the witnesses, to determine the reliability of the identification.
Final Decision: The appeal was dismissed and the conviction and sentence imposed on the appellants under Sections 143, 147, 148, 342, 449, and 302 r/w. 149 I.P.C. were upheld.

Judgment :-

Abdul Gafoor, J.

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. PW.1, 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 appellant/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 the 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 appellant 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 PW.5 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 PW.1, all of them came to 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 PW.5 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 total six accused were acquitted by the court below, giving them the benefit of doubt, the remaining four accused will not, by themselves, constitute and unlawful assembly so as to share any common object among them. The prosecution did not have a case that any one other than the six named accuse

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