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PETITIONER: SUBRAN @ SUBRAMANIAN AND ORS.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT24/02/1993

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) VENKATACHALLIAH, M.N.(CJ) JEEVAN REDDY, B.P. (J)

CITATION:  1993 SCR  (2)  84        1993 SCC  (3)  32  JT 1993 (2)   194        1993 SCALE  (1)685

ACT: Indian Penal Code, 1860: Sections 141, 149, 299, 300, 302 and 326-Unlawful  assembly- What  is-Six accused charged with offences under section 302 read  with  section 149-Two acquitted-Effect  of-Held  other four  being less than five would not be members of  unlawful assembly-Where  Existence  of unlawful assembly  not  proved conviction  with  aid  of section 149  cannot  be  recorded- Accused  cannot  be  convicted for offence  with  which  not charged-Accused liable for offences committed individually.

HEADNOTE: Six accused persons were arrayed by the investigating agency for  offences punishable under Sections 302, 324, 323,  341, 148  read with Section 149 IPC, for an occurrence that  took place on 24th December, 1986 in which one Suku succumbed  to injuries  as a result of the assault during the  occurrence. They  were  put  on trial, and  the  prosecution  sought  to establish its case by examining as many as six eye-witnesses besides other evidence, documentary and oral. According  to  the  prosecution case, all  the  six  accused persons  were  armed with weapons like  chopper,  iron  rod, knife, cycle chain and torches and that the accused had held PW.2  George  and while the first accused  kicked  him,  the third accused inflicted injuries on him with a cycle  chain. So  far  as  Suku deceased was concerned,  all  the  accused except the first accused caused him injuries with a torch, a cycle  chain and a knife.  The first accused was alleged  to have  caught  hold  of  Suku by  the  collar  and  inflicted injuries  on his hands, arms and legs with a  chopper.   The assault  took  place  in front of an arrack  shop.   It  was alleged  that  enmity between the two groups on  account  of suspicion  of  information  being passed on  to  the  Excise Officials,  regarding illicit distillation was the cause  of the  occurrence, but no evidence was led in support of  this allegation  and  no motive for commission of the  crime  was established at the trial. 85 At  the  trial, four eye-witnesses PW3, P.W.  6,  PW.7,  the salesman  and  his  assistant in the arrack  shop  and  PW.8 turned  hostile  and did not support the  prosecution  case.

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The  prosecution case was sought to be proved by the  ocular testimony of PW.4 and PW.5 both aged about 13 years, at  the time of the occurrence and other evidence.  Both these  eye- witnesses supported their statements recorded under  section 161  Cr.  P.C. during their testimony in Court.   The  trial court on the basis of prosecution evidence found accused No. 1, Subran, guilty of an offence punishable under Section 302 IPC  and sentenced him to suffer rigorous  imprisonment  for life.   Accused Nos. 2 to 6, namely, Rajan, Preman,  Viswan, Sura  and  Shajan,  were found guilty of  an  offence  under Section  326/149 IPC and each one of them was  sentenced  to undergo  rigorous  imprisonment  for  three  years  Besides, accused  1 to 4 were convicted for an offence under  Section 148  and sentenced to suffer rigorous imprisonment  for  one year.   All  the accused were also  convicted  for  offences under  Sections 14, 341, 323,324 read with Section  149  IPC but  no  separate  sentences were awarded on  any  of  those counts. On  appeal  to the High Court, the conviction  and  sentence awarded  to  accused  1 to 3 and  5  were  confirmed,  while accused  4  and  6 were acquitted  and  the  conviction  and sentence recorded against them by the Sessions Judge was set aside.   Ile participation of the 6th accused and  the  role assigned to him by the prosecution was doubted by the Judges of the High Court and he was given the benefit of doubt  and acquitted.   Similarly, the High Court disbelieved the  role assigned  to accused No. 4 and doubted his participation  in the commission of the crime. ]Me accused appealed to this Court by Special Leave.   After preliminary hearing it was ordered that the appeal be  heard on the limited question regarding the nature of the  offence and the quantum of the sentence only. On  the  question : Whether after the acquittal of  the  two accused,  could the High Court Convict appellant No.  1  for the  substantive offence under Section 302 IPC   an  offence with  which he had not been charged, and appellants 2  to  4 for an offence under section 326/149 IPC, Partially allowing the appeal, the Court, HELD:     1.  A combined reading of Section 141 and  Section 149 IPC 86 show  that an assembly of less than five members is  not  an unlawful  assembly  within the meaning of  Section  141  and cannot,  therefore,  form the basis for  conviction  for  an offence with the aid of Section 149 IPC. [92F] 2.   The  existence of an unlawful assembly is  a  necessary postulate for invoking Section 149 IPC.  Where the existence of  such an unlawful assembly is not proved, the  conviction with  the  aid  of Sections 149 IPC cannot  be  recorded  or sustained.  The failure of the prosecution to show that  the assembly was unlawful must necessarily result in the failure of the charge under section 149 )PC. [92H,93A] 3.   A  person charged for an offence under Section 302  IPC read with Section 149 cannot be convicted of the substantive offence  under  Section 302 IPC without  a  specific  charge having  been  framed  against  him  as  envisaged  by   law. Conviction  for  the substantive offence in such a  case  is unjustified  because  an  accused might  be  misled  in  his defence  by  the absence of the charge for  the  substantive offence under Section 302 IPC. [93D] 4.   The  conviction  of appellants 2 to 4  for  an  offence under  Section 326/149 IPC cannot be sustained and the  same would  be the position with regard to the conviction of  all the  appellants for other offences with the aid  of  Section 149 IPC also. [93B]

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5.   The  High Court failed to draw the distinction  between an  offence under clause (b) and (c) of Section 299 IPC  and the one failing under clause (3) of Section 300 IPC. [93G] 6, The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that  some other  known  or unknown persons were also involved  in  the assault,  would be that for all intent and purposes the  two acquitted  accused persons were not members of the  unlawful assembly.   Thus,  only four accused could be said  to  have been the members of the assembly but such an assembly  which comprises  of  less  than five members is  not  an  unlawful assembly within the meaning of Section 141 IPC. [92G] 7.   Appellant No. 1 Subran not having been charged for  the substantive  offence of murder under Section 302  IPC,  even the  trial court, which tried the six accused  persons,  was not justified in recording a conviction against him for  the substantive offence of murder punishable under Sec- 87 tion  302  IPC after framing a charge against  him  for  the offence  under Section 302 read with Section 149  IPC  only. [93C] 8.   Appellant No. 1, Subran, was never called upon to  meet a  charge under Section 302 IPC simplicitor and,  therefore, in defending himself, he can not be said to have been called upon  to  meet  that  charge and he  could  very  well  have considered it unnecessary to concentrate on that part of the prosecution   case  during  the  cross-examination  of   the prosecution  witnesses.   Therefore, the conviction  of  the appellant  No.  1 for an offence under Section 302  was  not permissible. [93E] 9.   The  intention to cause murder of Suku deceased,  could not  be  attributed  to  appellant No.  1  and  the  medical evidence also shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause the death  of the deceased.  The conviction of appellant  No.  1 for  the  substantive  offence  under  Section  302  IPC  is therefore  unwarranted and cannot be sustained.   That  Suku deceased  died as a result of injuries inflicted on  him  by all  the four appellants is not a matter which is in  doubt. From the ocular evidence read with the medical evidence,  it stands  established  that the injuries on the  deceased  had been caused by all the four appellants and that the death of Suku  had occurred due to the receipt of multiple  injuries. [93H, 94A-B] 10.  On  a consideration of the circumstances of  the  case, the  type of weapons with which the accused were  armed  and the  nature and seat of the injuries, it is not possible  to hold  that  all the four appellants had  shared  the  common intention of causing such bodily injuries on the deceased as were likely to cause the death of Suku or were sufficient in the  ordinary  course  of nature to cause  his  death.   The appellants  would,  therefore  be  liable  for  the  offence committed individually by each one of them. [94D-E] 11.  The  case  of appellant No. 1 therefore,  falls  within Section  299 I PC punishable under Section 304  Part-1  [PC. He  is  accordingly,  convicted for  the  said  offence  and sentenced  to suffer rigorous imprisonment for a  period  of seven years and to pay a fine of Rs. 2,000 and in default of payment  suffer further rigorous imprisonment for one  year. Fine  if realised to be paid to the heirs of  the  deceased. [94G-H] 12  (a)  With  regard to the three  other  appellants  their conviction for 88 an offence under Section 326 with the aid of Section 149  is

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not sustainable in law, it is accordingly set aside and they are  convicted  under Section 326/149 IPC.   They  would  be responsible for their individual acts.  The injuries  caused by  appellants  2 and 3 were with a torch, iron  rod  and  a cycle chain.  None of the injuries caused by them  according to  the  post-mortem report were on any vital  part  of  the body,  though some of the injuries caused by  blunt  weapons were grievous in nature.  Each of them are convicted for  an offence  under  Section  325 IPC  and  sentenced  to  suffer rigorous imprisonment for two years each. [95B-C] 12  (b)  Appellant  No. 4 caused grievous  injuries  to  the deceased  with  a knife, the offence would  therefore,  fall under  Section 326 IPC.  He is therefore convicted  for  the said  offence and sentenced to suffer rigorous  imprisonment for  a period of three years and to pay a fine of Rs.  500/- and  in default of payment to suffer  rigorous  imprisonment for  a period of three months.  The fine, if realised  shall be paid to the heirs of the deceased. [95D] 12 (c) The conviction of all the appellants for the  offence under Section 324 as recorded by the High Court as also  for the  other  offences are maintained but without the  aid  of Section 149 IPC. [95E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 237  of 1993. From the Judgment and Order dated 4.9.91 of the Kerala  High Court in Crl.  A. No. 537 of 1988. M.M.  Kashyap, Sudhir Gopi, A.G. Prasad and Roy Abraham  for the Appellants. M.T. George for the Respondent. The Judgment of the Court was delivered by DR.   ANAND,  J.  On  9.3.1992,  when  this  special   leave petition, directed against the judgment and order dated  4th September,  1991,  of the High Court of Kerala  in  Criminal Appeal No. 537 of 1988, came up for preliminary hearing, the following order was made:               "Issue  notice limited to the question  as  to               the  nature  of  offence and  the  quantum  of               sentence.               89               No orders on bail." Heard  learned  counsel for the parties.  Leave  is  granted confined to the limited question on which notice was  issued as referred to above. For  an occurrence which took place on 24th, December  1986, in  which one Suku succumbed to the injuries as a result  of the assault during the occurrence, six accused persons  were arrayed by the investigating agency for offences  punishable under Sections 302, 324, 323, 341, 148 read with Section 149 IPC.   They were put on trial and the prosecution sought  to establish its case by examining as many as six eye-witnesses besides other evidence, documentary and oral.  At the  trial however, four eye- witnesses, PW3 Devassykutty, PWs 6 and  7 salesman and his assistant in the arrack shop and PW8 Unni @ Velayudhan   turned   hostile  and  did  not   support   the prosecution  case.   The prosecution case was sought  to  be proved  by  the ocular testimony of PW4 Biju and  PW5  Anil, both  aged about 13 years at the time of occurrence and  the other  evidence.   Both the  eye-witnesses  supported  their statements recorded under Section 161 Cr.  P.C. during their testimony  in  court.   The  trial court  on  the  basis  of

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prosecution evidence found accused No. 1, Subran, guilty  of an  offence punishable under Section 302 IPC  and  sentenced him to suffer rigorous imprisonment for life.  Accused  Nos. 2 to 6, namely, Rajan, Preman, Viswan, Sura and Shajan  were found  guilty  of an offence under Section 326/149  IPC  and each   one  of  them  was  sentenced  to  undergo   rigorous imprisonment for three years.  Besides, accused 1 to 4  were convicted for an offence under Section 148 and sentenced  to suffer rigorous imprisonment for one year.  All the  accused were  also  convicted  and  sentenced  to  suffer   rigorous imprisonment for six months each under Section 147 IPC.  All the accused were also convicted for offences under  Sections 143, 341, 323, 324 read with Section 149 IPC but no separate sentences were awarded on any of those counts.  On an appeal before the High Court, the conviction and sentenced  awarded to accused 1 to 3 and 5 were confirmed while accused 4 and 6 were  acquitted  and the conviction  and  sentence  recorded against  them by the learned Sessions Judge was  set  aside. In  view of the limited notice issued by this Court, we  are relieved  of the necessity to reappreciate  the  prosecution evidence in extenso and shall therefore confine ourselves to the determination of the nature of the offence and the award of appropriate sentence to the four appellants accepting, as established the prosecution case against the four appellants beyond a reasonable doubt. 90 According  to  the  prosecution case, all  the  six  accused persons  were  armed with weapons like  chopper,  iron  rod, knife, cycle chain and torches.  It is the prosecution  case that  the  accused had held PW2 George and while  the  first accused kicked him, the third accused inflicted injuries  on him  with  a  cycle  chain.  So  far  as  Suku  deceased  is concerned,  according  to the prosecution, all  the  accused except the first accused caused him injuries with a torch, a cycle  chain and a knife.  The first accused is  alleged  to have  caught  hold  of  Suku by  the  collar  and  inflicted injuries  on  his hands arms and legs with a  chopper.   The assault took place in front of an arrack shop.  According to the prosecution case there was enmity between the two groups on   account  of  illicit  distillation  and  suspicion   of information  being  passed  on  to  the  Excise   officials. However,  no evidence was led in support of this  allegation by the prosecution and no motive for commission of the crime was established at the trial. The  postmortem  on  the  deceased  was  conducted  by   Dr. Sivasankara  Pillai  PW12.   He  had found  as  many  as  38 injuries  on  the deceased.  Most of the injuries  found  by him,  however,  were abrasions or  contusions  on  different parts of the body though the deceased had also suffered stab wounds  on  the right upper arm and left forearm  and  sharp weapon  injuries  on his hands and legs.  The bones  of  the legs  and arm had been fractured.  According to the  medical witness,  death of Suku deceased was caused due to  multiple injuries.   According to the medical evidence, there was  no stab or incised wound inflicted on any of the vital parts of the body i.e. neck, chest or abdomen.  The Doctor has opined that the deceased had died due to multiple injuries and that the  injuries  could have been caused by  beating  him  with torches,  knife,  iron  rod, cycle chain  and  the  chopper. According to him, the cumulative effect of all the injuries, taken  together, had resulted in the death of the  deceased. The  doctor further stated that as a result of the  chemical analysis  of  the  viscera,  blood  and  urine,  there   was indication that the deceased had consumed alcohol before  he had been assaulted, though he was unable to give the quality

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or quantity of liquor consumed by the deceased. From  an analysis of the record of injuries as  detailed  in the  post-mortem  report, it transpires that there  were  18 contusions  of  different  dimensions  but  minor  in  their gravity on the body of the deceased.  Eight of the  injuries recorded,  out  of the 38 in the post mortem  report.,  were abrasions on different parts of the body.  According to  the medical witness, nine out 91 of  those injuries could have been caused by a fall  or  the deceased coming into contact with any rough surface or area. Out of the remaining injuries, seven were chop wounds  while two  were stab wounds, besides three were incised  injuries. it was the cumulative effect of the injuries which  resulted in  the death of the deceased and according to  the  doctor, the  injuries when taken together were sufficient  to  cause death  in  the  ordinary  course of  nature.   None  of  the injuries  by  itself  was  found to  be  sufficient  in  the ordinary  course of nature to cause death of  the  deceased. According  to the medical opinion about the cause of  death, "deceased died due to multiple injuries". From the above analysis of injuries, it cannot be said  that any one of the four appellants, who alone stand convicted by the  High  Court had inflicted injuries intending  to  cause death or such bodily injury as is sufficient in the ordinary course  of nature to cause death.  As already  noticed,  six accused persons had been charged by the investigating agency for  offences punishable under Sections 143, 147, 148,  341, 323,  324, 326 and 302 read with Section 149 IPC and put  on trial.   The  trial  court convicted accused 2  to  6  under Section  326  IPC  with  the aid of  Section  149  IPC.   It convicted  accused  No. 1 for an offence under  Section  302 IPC.  While convicting accused 2 to 6 for the offence  under Section 326/149 IPC, the trial court came to the  conclusion that ’the accused did not share the common object to  murder Suku  and that the common object was only to cause  grievous hurt’  to the deceased.  Being of the opinion, that  accused No. 1 had caused injuries with a chopper and those  injuries "could"  have resulted in the death of the deceased, he  was convicted  for an offence under Section 302 IPC.   The  High Court  acquitted  two  of  the  accused  and  convicted  the remaining  four  only.   The High  Court  found  that  clear evidence of the eye-witnesses was only against accused  Nos. 2, 3 and 5 besides appellant No. 1. The participation of the 6th accused and the role assigned to him by the  prosecution was  doubted by the learned Judges of the High Court and  he was  given the benefit of doubt and  acquitted.   Similarly, the High Court disbelieved the role assigned to accused  No. 4  and  doubted his participation in the commission  of  the crime.   He  was  also’  given  the  benefit  of  doubt  and acquitted.  While setting aside the conviction and  sentence of  the said two accused, the High Court did not  hold  that beside  the  four accused convicted by it, there  were  some other known or unknown accused who had also been a party  to the commission of the crime.  It is in this above background that we have to consider the nature 92 of the offence committed by the four appellants. Admittedly,  none  of the accused persons  individually  had been  charged  for the substantive offence of  murder  under Section  302  IPC.  In the trial court all the  six  accused were  charge sheeted for an offence under Section  302  read with  Section  149  IPC.  Other  charges  were  also  framed against  the  accused but only with the aid of  Section  149 IPC.  After the acquittal of the two accused, could the High

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Court  convict appellant No. 1 for the  substantive  offence under  Section 302 IPC (with which he had not been  charged) and  the  appellants  2 to 4 for an  offence  under  Section 326/149 IPC ? Section  141  IPC  defines an unlawful  assembly  to  be  an assembly of five or more persons, where the common object of the persons comprising that assembly is to commit any of the acts  enumerated  in  the  five  clauses  of  that  Section. Section 149 IPC reads as under:               "Sec. 149.  Every member of unlawful  assembly               guilty of offence committed in prosecution  of               common  object  If an offence is committed  by               any   member  of  an  unlawful   assembly   in               prosecution  of  the  common  object  of  that               assembly,  or  such  as the  members  of  that               assembly knew to be likely to be committed  in               prosecution of that object, every person  who,               at the time of the committing of that offence,               is a member of the same assembly, is guilty of               that offence." A  combined  reading  of Section 141  and  Section  149  IPC (supra)  show that an assembly of less than five members  is not  an unlawful assembly within the meaning of Section  141 and cannot, therefore, form the basis for conviction for  an offence with the aid of Section 149 IPC.  The effect of  the acquittal  of the two accused persons by the High Court  and without  the  High Court finding that some  other  known  or unknown persons were also involved in the assault, would  be that  for all intent and purposes the two acquitted  accused persons  were not members of the unlawful  assembly.   Thus, only four accused could be said to have been the members  of the  assembly but such an assembly which comprises  of  less than  five  members is not an unlawful assembly  within  the meaning  of Section 141 IPC.  The existence of  an  unlawful assembly  is a necessary postulate for invoking Section  149 IPC.   Where the existence of such an unlawful  assembly  is not 93 proved,  the  conviction  with the aid of  Section  149  IPC cannot  be  recorded  or  sustained.   The  failure  of  the prosecution  to  show that the assembly  was  unlawful  must necessarily  result  in  the failure  of  the  charge  under Section 149 IPC.  Consequently, the conviction of appellants 2  to 4 for an offence under Section 326/149 IPC  cannot  be sustained and the same would be the position with regard  to the conviction of all the appellants for other offences with the aid of Section 149 IPC also. Since,  appellant No. 1 Subran had not been charged for  the substantive  offence of murder under Section 302  IPC,  even the  trial court, which tried the six accused  persons,  was not justified in recording a conviction against him for  the substantive  offence of murder punishable under Section  302 IPC after framing a charge against him for the offence under Section  302  read  with Section 149  IPC  only.   A  person charged  for  an offence under Section 302,  IPC  read  with Section  149 cannot be convicted of the substantive  offence under Section 302, IPC without a specific charge having been framed against him as envisaged by law.  Conviction for  the substantive:  offence in such a case is unjustified  because an accused might be misled in his defence by the absence  of the  charge  for the substantive offence under  Section  302 IPC.  Appellant No. 1, Subran, was never called upon to meet a  charge under Section 302 IPC simplicitor and,  therefore, in defending himself, he can not be said to have been called upon  to  meet  that  charge and he  could  very  well  have

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considered it unnecessary to concentrate on that part of the prosecution   case  during  the  cross-examination  of   the prosecution  witnesses.   Therefore, the conviction  of  the first  appellant  for an offence under Section 302  was  not permissible.  That apart, according to the medical evidence, none of the injuries allegedly caused by this appellant  was either  individually  or taken collectively with  the  other injuries caused by him, sufficient in the ordinary course of nature to cause death of Suku.  Medical evidence is clear on this  aspect of the case and it is not possible to say  that the  injuries  inflicted  by the first  appellant  with  the chopper were inflicted with the intention to cause the death of  Suku.   The High Court failed to  draw  the  distinction between an offence under clause (b)  and (c) of Section  299 IPC  and  the one falling under clause (3) of’  Section  300 IPC.  The intention to cause murder of Suku deceased,  could not be attributed to him and the medical evidence also shows that  the injuries attributed to him were not sufficient  in the  ordinary  course  of  nature  to  cause  death  of  the deceased.   The conviction of appellant No. 1,  Subran,  for the substantive offence under Section 302 IPC is therefore, 94 unwarranted  and  cannot be sustained.  That  Suku  deceased died  as  a result of injuries inflicted on him by  all  the four appellants is not a matter which is in doubt.  From the ocular  evidence read with the medical evidence,  it  stands established  that  the  injuries on the  deceased  had  been caused by all the four appellants and that the death of Suku had  occurred  due to receipt of  multiple  injuries.   What offence can then be said to have been committed by the  four appellants ? According to the medical evidence, the injuries caused  were cumulatively  sufficient  to cause death and the  death  had occurred   due  to  multiple  injuries  which   were   found sufficient in the ordinary course of nature to cause  death. According to the ocular testimony of witnesses namely,  Biju (PW4)  and  Anil (PW5), who have been believed by  both  the courts  below  and with which finding we have no  reason  to differ,  all the four appellants had caused those  injuries. It is, therefore, necessary in a case like this to determine as  to  which  of  the accused is  guilty  of  a  particular offence.   On  a consideration of the circumstances  of  the case,  the  type of weapons with which they were  armed  and nature and seat of the injuries, it is not possible to  hold that all the four appellants had shared the common intention of  causing  such bodily injuries on the  deceased  as  were likely to cause the death of Suku or were sufficient in  the ordinary   course  of  nature  to  cause  his  death.    The appellants  would, therefore be liable for the offence  com- mitted individually by each one of them. As  already  noticed,  though  it may  not  be  possible  to attribute   to  appellant  No.  1,  Subran,  the   necessary intention to cause death of Suku so as to hold him guilty of an  offence  of  murder  under Section  302  IPC  since  the injuries inflicted by him were not found to be sufficient in the  ordinary course of nature to cause death of  Suku,  but looking to the weapon with which he was armed and the nature number  and seat of injuries inflicted by him though not  on any  vital  part, he can certainly be  attributed  with  the knowledge that with those injuries it was likely that  death of  Suku  may be caused and, therefore, he can  be  cloathed with   the  liability  of  causing  culpable  homicide   not amounting  to  murder.   The case of  the  first  appellant, therefore,  falls  within Section 299 IPC  punishable  under Section  304 Part-1 IPC.  We, accordingly, convict  him  for

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the  said  offence  and  sentence  him  to  suffer  rigorous imprisonment  for a period of seven years and to pay a  fine of Rs. 2000 (two thousand) and in default of payment of fine suffer further rigorous imprisonment for one year.  Fine  if realised shall be paid 95 to the heirs of the deceased. Coming  now  to  the case of  the  other  three  appellants. Since,  their  conviction for an offence under  Section  326 with  the aid of Section 149 is not sustainable in  law,  we set aside their conviction under Section 326/149 IPC.   They would  be  responsible  for  their  individual  acts.    The injuries caused by Rajan and Preman appellants 2 and 3, were with  a  torch,  iron rod and a cycle chain.   None  of  the injuries  caused by them according to the postmortem  report were  on  any  vital part of the body, though  some  of  the injuries  caused by blunt weapons were grievous  in  nature. We, therefore, convict each of the two appellants Rajan  and Preman,  for an offence under Section 325 IPC  and  sentence them to suffer rigorous imprisonment for two years each. So far as the fourth appellant Sura Surendran is  concerned, he  caused grievous injuries to the deceased with  a  knife. His offence would, therefore, fall under Section 326 IPC and convicting  him  for the said offence, we sentence  trim  to suffer rigorous imprisonment for a period of three years and to  pay  a fine of Rs. 500 (five hundred).   In  default  of payment   of   fine  he  shall   further   suffer   rigorous imprisonment  for  a  period  of  three  months.   Fine,  if realised shall be paid to the heirs of the deceased. The  conviction of all the appellants for the offence  under Section  324 as recorded by the learned Judges of  the  High Court  as  also for the other offences  are  maintained  but without  the  aid  of  Section 149  IPC.   In  view  of  the sentences  recorded  for offence under Section  304  Part  I against the first appellant Subran, Section 325 IPC  against appellants  2 and 3, Rajan and Preman, and Section  326  IPC against  Sura  Ca,  Surendran,  appellant  4,  no   separate sentence are recorded for the other offences. The appeal is accordingly partially allowed and disposed  of in the above terms. N.V.K.                                                Appeal allowed partially. 96