Important Points:
For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly with an unlawful common object, the same must be translated into action or be successful.

Shaffique, J.

This appeal is filed by accused 3 to 5 in SC No.245/2007 on the file of Additional Sessions Judge-IV, Thrissur. There were altogether five accused in the case. The charge against the first accused got abated as he died one year after the incident in the above case and according to the defence he was murdered as a retaliation to the crime committed in the above case. The 2nd accused remained absconding. The trial proceeded against accused 3 to 5.

2. The prosecution alleged that accused 3 to 5 along with accused 1 and 2 formed themselves into an unlawful assembly and in pursuance of a common object to commit murder, they attempted to murder PW1 and committed murder of Valsalan. The incident happened on 16/4/2006 at about 5.45 p.m. PW19 the Assistant Sub Inspector of Police recorded the FIS of PW1 on the basis of which Crime No.146/2006 was registered by the Vadakkekkad Police Station at 8.30 p.m. Ext.P1 is the FI statement and Ext.P18 is the FIR. The investigation was conducted by PW20, the Circle Inspector of Police. Accused 1 and 2 were arrested on 19/4/2006 at 3.30 p.m. and the third accused was arrested on 28/6/2006 at 4.30 p.m. Accused 4 and 5 surrendered before Court. After investigation, final report was filed against the accused alleging offences under Sections 143, 147, 148, 323, 307, 302 r/w S.149 of I.P.C.

3. Prosecution examined PW1 to PW20 and marked Exts.P1 to P43. MO1 to MO28 were the material objects that were identified before Court. Defence evidence consists of Exts.D1 to D4(b) which are portions of the previous statements of PW1, PW2, PW3 and PW5. Exts.D5 and D6 are certified copy of judgments in two other cases, in which the deceased was the accused.

4. The deceased in the case is one Valsalan who was the Municipal Chairman of Chavakkad Municipality. The incident happened during the campaigning for assembly elections in the year 2006. It is said that there were constant conflict between activists of United Democratic Front (UDF) and members of Left Democratic Front (LDF). PW1 was the Local Committee Secretary of Communist Party of India (Marxist) [CPI(M)] of Punnayoor Village. Valsalan along with PW2 who was the Councillor of LDF in the said area met PW1 at their local committee office at Punnayoor. They came in an Ambassador car KEH 7525 which belonged to PW3 Thomas, who was the driver of the car as well. While they were preparing for the campaign of the LDF candidates, they heard about a news in connection with destruction of LDF flags at Anjamka, Akalad. When the matter was informed to Valsalan, he offered to go to the said place to verify and accordingly, Valsalan, PW1 and PW2 got into the vehicle of PW3 and proceeded to Akalad.

5. On their way, when they reached a place called Ottayini, they saw some people on the western side of the National Highway. Valsalan asked the driver to stop the car and accordingly the vehicle was stopped on the western side of the road. All of them got down and stood outside. A1 to A5 came from the north along the western side of the road and while passing them, A1 uttered “some sons of dogs are standing there and they would be dealt with”. They moved towards the shop of one Muhammed which was situated on the southern side. PW1 named the five member gang as A1 to A5 and he identified A3 to A5 before Court. When the accused reached the shop of Muhammed, PW2 Akbar went towards them. There was an exchange of words and suddenly A2 took out MO2 knife and stabbed PW2 several times. A3 hit on the back of PW2, A4 stamped on his stomach and A5 slapped on the face of PW2. On seeing this, Valsalan came towards them and at that time 2nd accused Sulaimankutty stabbed the deceased below his abdomen. All the accused ran away from the scene. PW1 and PW3 took the injured Valsalan and PW2 in the car to Raja Hospital, Muthuvatoor. On examining Valsalan, he was declared dead by the Doctor. They conducted surgery on PW2. The Court below found the accused 3 to 5 guilty of offence