K A. Abdul Gafoor, J.

The appellants, accused I 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 I.P.C. 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. P.Ws.1 and 2 were present at that time at the scene of occurrence. P.W.1, along with RW.5 who came there, took him to the nearest hospital where it was declared that he was dead. P.Ws.14 and 15 conducted investigation and P.W.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 appellants/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 be 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 appellants that P.W. 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 P.W. 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 P.W.1, all of them came to the 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 P.W.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 I.P.C., 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 I.P.C. 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 P.Ws.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 the total six accused were acquitted by the court below, giving them the benefit of doubt, the remaining four accused will not by themselves, constitute an unlawful assembly so as to share any common object among them. The prosecution did not have a case that anyone oth