The identification of the accused must be specific and certain for a conviction; insufficient evidence leads to the overturning of convictions for unlawful assembly.

JUDGMENT :

A. BADHARUDEEN, J.

1. Accused Nos.1 and 2 in SC No.75/2011 on the files of the Additional Sessions Court-IV, Kottayam, has filed this criminal appeal challenging conviction and sentence imposed against him in the above case dated 07.05.2014. The respondent herein is the State of Kerala, represented by the learned Public Prosecutor.

2. Heard the learned counsel for the appellants/accused Nos.1 and 2 and the learned Public Prosecutor in detail. Perused the trial court records and the evidence in detail.

3. In this matter, the police filed final report alleging commission of offences punishable under Sections 143, 147, 148, 324, 325, 323, 308 and 201 r/w Section 149 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by the accused. The allegation of the prosecution is that on 05.07.2009 at about 1 pm, all the accused formed themselves into an unlawful assembly, and in furtherance of their common object to attack PW2, came in a car owned by the 1^st accused near the shop of PW3 and A2 hit on the head of PW2 with an iron rod and again inflicted injury on the back side of head. A4 hit on the lower part of right knee and A1 and A3 stabbed PW2 when he fell down. A3 and A4 beat CW2 with an iron rod on his left leg, thereby causing fracture to the leg. It is alleged that the 1^st accused had some difference of opinion with PW2 at Kuttikkadu temple and due to this enmity, the accused attacked PW2. Thus the prosecution allegation is that the accused persons attacked PW2 with knowledge that their overt acts are sufficient to cause death of PW2.

4. The trial court after completing the formalities for trial, framed charge for the said offences and recorded evidence.

5. During trial, PW1 to PW9 were examined and Exts.P1 to P18 were marked on the side of the prosecution. Exts.D1 and D2 were also marked during cross- examination of the prosecution witnesses at the option of the accused. After completion of the prosecution evidence, even though the accused were given opportunity to adduce defence evidence after questioning him under Section 313(1) (b) of the Code of Criminal Procedure, they did not adduce any evidence.

6. Finally, the trial court found that accused Nos.1 and 2 committed offences punishable under Sections 143, 147, 148, 326 and 308 r/w 149 of IPC.

7. During pendency of this appeal, the 1^st accused died and now the 2^nd accused alone is alive. While challenging the verdict of the trial court, it is pointed out by the learned counsel for the 2^nd appellant that the 2^nd appellant is innocent. According to the learned counsel for the 2^nd appellant, even though in the First Information Statement, involvement of 6 persons in this occurrence was stated, when PW1, who gave Ext.P1 statement, was examined, he deposed that only 4 persons were involved in this crime. Therefore, offence under Section 143 series would not attract. Further it is argued that even though the accused were identified, witnesses did not specifically identify the accused by pointing out them specifically and therefore, there is no proper identification. It is also submitted by the learned counsel for the 2^nd appellant that going by the statement of the injured, who was examined as PW2, the 1^st accused asked the 2^nd accused to chop PW2 and then the 2^nd accused, Sarath, chopped on his head, but it was restrained by using his left hand and the same caused injury on his left hand and it was bleeding. Thereafter, the evidence of PW2 is that some others beat him on his right hand by using an iron rod and thereby he fell down. The further version of PW2 is that Mohanan (A1) and others had beaten him a