The main legal point established in the judgment is the application of Section 34 and Section 149 of the Indian Penal Code in determining the criminal liability of the accused for their actions as an unlawful assembly.

S. Padmanabhan. J.

Otherwise calm Thundipuzha river with shallow water will be in spate during rainy seasons when water raises up to the level of the bridge. During the period, youngsters of the locality, who know swimming, use to enjoy by jumping into the river from the bridge and swim when taking bath. They also use to find pleasure by forcibly putting their unwilling friends also into the river to join them. At about 4.30 p.m. on 22-7-1978, when the river was in spate, the six accused were enjoying their bath. Deceased Promod, one of their friends, was found walking through the nearly Nirmala hospital compound. At that time, accused formed themselves into an unlawful assembly with the common object of murdering Promod by throwing him into the water. They committed rioting and, in prosecution of the common object, accused 1 to 3 chased and caught the deceased, wrongfully restrained him and forcibly took him to the bridge against his protest and in spite of his cry that he did not know swimming and he would die if put into the water. All the accused then joined in throwing him into the water. He was washed off and drowned to death. This is the prosecution case.

2. Though charge was under sections 143, 147, 341 and 302 read with Section 149 of the Indian Penal Code, conviction was only under Sections 143, 147, 341 and 304 (2) with the aid of Section 149 of the Penal Code. Second accused, who was under the age of 21, was released on probation. Case against the sixth accused, being a juvenile offender, was split up and sent to the children's court. Each among accused 1 and 3 to 5 was sentenced to undergo rigorous imprisonment for three months under section 143, one year under Section 147, one month under section 341 and five years under section 304(2) read with Section 149 of the Penal Code, with direction to suffer the sentences concurrently. This is how accused 1 and 3 to 5 came up in appeal.

3. Fact that Promod fell into the river and was drowned to death at the time and place alleged by the prosecution is not in dispute. Plea of the accused is only that he had an accidental fall from the bridge by slipping while standing there. PWs. 1 and 5 to 8 are the occurrence witnesses, among whom, PW 8 turned hostile. Evidence of PWs 1 and 5 to 7, inquest report and the evidence of PW 17, who prepared the same, as well as the medical evidence of PW 9 and Ext. P6 post-mortem report prepared by him and the evidence of some other witnesses also proved that Promod died by drowning.

4. Cause of death given by PW 9 is drowning. Dead body had 19 injuries, which were abrasions, lacerations and contusions. PW 9 said that some of these injuries could be due to acts of violence on his body and some others due to contact with hard and rough substances in the water. He said that injuries Nos. 14 and 15, which are contusions, could be caused by catchholding the wrist and palm forcibly. Injuries Nos. 16 and 19, in the scapular area and back, could be had in an attempt to hold the deceased from behind and injuries Nos. 17 and 18 indicate dragging that part of the body. These are acts of violence before the deceased was put into the water, as seen from the evidence of PWs 5 to 7. Thus this is a case in which ocular evidence is fully supported by the medical evidence.

5. In the light of Ext.P1 and the evidence PWs 1 and 5 to 7, appellants did not pursue their plea that it was a case of accidental fall. They also did not dispute the fact that accused 1 to 3 forcibly took the deceased to the bridge in order to persuade him to join them in the bath. But they denied the evidence that the deceased made repeated cries that he did not know swimming and that he should not be thrown into the water as he would die. From the evidence, they contended that, as soon as the deceased was taken to the bridge by accused 1 to 3, he told them that he did not know swimming and hence they left him there and to their surprise and without their knowledge, either the