REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 162 of 2006
Ramachandran & Ors. Etc. ...Appellants
Versus
State of Kerala ...Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and order
dated 7.4.2005 passed by the High Court of Kerala at Ernakulam in
Criminal Appeal Nos. 1675 and 1955 of 2003 by which the High
Court, while affirming the findings of fact, modified the judgment and
order of the trial court dated 29.8.2003 in Sessions Case No. 58 of 2001
i.e. Criminal Appeal No. 1675 of 2003 stood dismissed, while
Criminal Appeal No. 1955 of 2003 was partly allowed.
2. Facts and circumstance giving rise to this appeal are that:
A. Babu (PW.1); Sobhanan (PW.2); and Parvathy (PW.4) all
relatives were having inimical terms with the appellants. Several
criminal cases were pending between them. In order to take revenge,
the appellants formed an unlawful assembly for the purpose of
committing murder of Sobhanan (PW.2). They waited in the house of
Sudhakaran (A.1) on 12.4.2000, which was the last day of Mahotsavam
conducted in the Shanmughaviiasam temple at Kulasekharamangalam,
at about 10.00 p.m.
B. Sobhanan (PW.2) came alongwith his 8 years old son along the
pathway on the eastern side of the house of Sudhakaran (A.1) from the
temple. Sudhakaran (A.1) repeatedly shouted "catch him". The
accused chased him and on seeing this, Sobhanan (PW.2) ran from the
place leaving his son there towards the house of Sobhana (PW.3) i.e.
"Sophia Bhawan". However, before Sobhanan (PW.2) could enter
"Sophia Bhawan", Sudhakaran (A.1) inflicted cut injury on his hand.
Sobhanan (PW.2) entered the said house and succeeded in closing the
door from inside. All the accused except Shaji (A.18) broke open the
door and inflicted injuries on Sobhanan (PW.2) with their respective
weapons and he was dragged to the western courtyard and again
beaten. In this process, a large number of articles of the use of "Sophia
Bhawan" got destroyed.
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C. While hearing the hue and cry, Kuttappan (deceased) father of
Sobhanan (PW.2) and Babu (PW.1) reached there. The appellants
rushed towards Kuttappan (deceased) shouting "Kill them" and
thereafter, Sudhakaran (A.1) inflicted a cut injury on the head of the
deceased with a sword stick in his hand and other accused inflicted
injuries on him with their respective weapons, namely, choppers,
knives and iron rods. When Babu (PW.1) and Parvathy (PW.4) made
an attempt to intervene, they were also attacked by the appellants and
injured. Kuttappan succumbed to the injuries caused by the accused
at the spot and the accused persons ran away from the spot.
D. An FIR in respect of the incident was lodged and thus,
investigation commenced. The recovery of the weapons was made at
the instance of the accused and after completing the formalities, 18
accused were put on trial. The prosecution to prove its case examined
a large number of witnesses including five eye-witnesses. Out of them,
four had been injured witnesses.
E. On conclusion of the trial, the court acquitted Shaji (A.18) and
convicted A1 to A11, 14 and 15 under Sections 143, 147, 148, 307, 323,
324, 449, 427 and 302 of the Indian Penal Code, 1860 (hereinafter called
`the IPC') read with Section 149 IPC and sentenced to undergo
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imprisonment for life and also for payment of fine of Rs.25,000/- each,
in default to undergo rigorous imprisonment for five years under Section
302 IPC and they are further sentenced to undergo rigorous
imprisonment for ten years each and also to pay a fine of Rs.10,000/-
each, in default to undergo rigorous imprisonment for three years each
under Section 307 IPC and further sentenced to undergo rigorous
imprisonment for one year each and also to pay a fine of Rs.3000/- each,
in default to undergo rigorous imprisonment for two months each under
Section 324 IPC and they are also liable to be sentenced to undergo
rigorous imprisonment for six months each and also to pay a fine of
Rs.1000/- each. In default to undergo rigorous Imprisonment for two
months each under Section 323 IPC and further sentenced to undergo
rigorous imprisonment for six months each and also to pay a fine of
Rs.1000/- each, in default to undergo rigorous imprisonment for two
months each under Section 427 IPC and they are further sentenced to
undergo rigorous imprisonment for seven years each and also to pay a
fine of Rs.5000/- each, in default to undergo rigorous imprisonment for
two years each under Section 449 IPC and they are also sentenced to
undergo rigorous imprisonment for six months each under Section 143
IPC and further sentenced to undergo rigorous imprisonment for one
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year each under Section 148 IPC and the sentences are directed to run
concurrently.
Other accused, namely, A12, A13, A16 and A17 were convicted
under Sections 143, 147, 148, 307, 323, 449, 427 read with Section 149
IPC. They were sentenced to undergo rigorous imprisonment for 10
years each and also to pay a fine of Rs.,10,000/- each, in default to
undergo rigorous imprisonment for 3 years each under Section 307 IPC
and further sentenced to undergo rigorous imprisonment for six months
each and also to pay a fine of Rs.1000/- each, in default to undergo
rigorous imprisonment for two months each under Section 323 IPC and
further sentenced to undergo rigorous imprisonment for six months each
and also to pay a fine of Rs.1000/- each, in default to undergo rigorous
imprisonment for two months each under Section 427 IPC and further
sentenced to undergo rigorous imprisonment for seven years each, and
also to pay a fine of Rs.5000/- each, in default to undergo rigorous
imprisonment for two years each under Section 449 IPC and further
sentenced to undergo rigorous imprisonment for one year each under
Section 148 IPC and also further sentenced to undergo rigorous
imprisonment or six months each under Section 143 IPC.
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F. Being aggrieved, the appellants preferred the appeals which have
been disposed of by common judgment and order dated 7.4.2005 by
which the High Court modified the order of the trial court to the extent
that conviction of A7, A10 and A11 under Section 302 IPC was set
aside. However, their conviction and sentence for other offences have
been confirmed.
Hence, this appeal.
3. Shri C.N. Sree Kumar, learned counsel appearing for the
appellants, has submitted that courts below erred in making the case of
some of the appellants distinguishable from others as one set of
appellants stood convicted under Sections 302/149 IPC etc. and another
set of appellants has been convicted under Sections 307/149 IPC etc.,
though, under the facts and circumstances of the case, no distinction is
permissible. Even, if the case of some of the appellants has to be
separated from others, the set of appellants who have been convicted
under Section 302/149 IPC would have been convicted under Section
304 - Part I IPC. This was necessary in view of the evidence of the
doctors, who conducted the postmortem examination of Kuttappan
(deceased) and examined other persons. The appellants had not
proceeded with common object to kill any person in as much as to kill
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Kuttappan, thus, provisions of Section 149 IPC are not attracted. From
the facts available on record, inference can be drawn that some of the
appellants had an object to catch hold of Sobhanan (PW.2), however,
there was no intention to kill him. No independent witness has been
examined and all the injured witnesses had been very close to the
deceased. In a case, where a very large number of assailants are there
and the incident is over in a short span of time, it is not possible for the
eye-witnesses to identify all the accused and give detailed description
of participation of each of them. Thus, evidence of the eye-witnesses
cannot be relied upon. The appeal deserves to be allowed.
4. Per contra, Shri M.T. George, learned counsel appearing for the
respondent State, has opposed the appeal, contending that in the facts
and circumstances of the case, provisions of Section 149 IPC have
rightly been applied. The prosecution succeeded in proving its case by
examining five eye-witnesses, out of them four had been injured
witnesses. The medical evidence supports the case of the prosecution.
Thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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6. There is enough evidence on record to establish that appellants
were present, armed with sword stick, choppers, knife and iron rods.
Dr. Girish (PW.18) conducted the postmortem on the body of
Kuttappan (deceased) and prepared report (Ex. P-14). According to
which, the following 34 injuries were found on his person:
(1) Incised wound 7x1.5 cm. bone deep sagitally
placed on right side of front of head, 3 c.m. outer to
midline and 4 c.m. above eye brow. Frontal bone
underneath sowed fissured fracture 8.5 c.m. long
extending to margin of coronal suture. Subarachnoid
bleeding present on both sides of brain. Gyri of brain
flattened and sulci narrowed.
(2) Contused abrasion. 0.5 x 0.5 c.m. on left side of
face, 3 cm. in front of ear.
(3) Contused abrasion 7.5 x 0.7 c.m. horizontal, on
right side of front of chest, just ouster to midline and
8.5 c.m. below collar bone.
(4) Multiple small abrasions over an area 3.5 x 1 c.m.
on back of right elbow.
(5) Contused abrasion 6 x 0.5 c.m. oblique on outer
aspect of right forearm 4 c.m. below elbow.
(6) Lacerated wound 0.7 x 0.5 c.m. on the front of right
forearm. 10 c.m. below elbow.
(7) Contused abrasion 16 x 2 c.m. oblique on back of
right forearm 1 c.m. above wrist.
(8) Multiple small contused abrasions over an area
4x2cm on back of right wrist and hand.
(9) Contused abrasion 3x1 cm oblique on the outer
aspect of right elbow.
(10) Contused abrasion 7x2em. Oblique on the outer
aspect of right hip.
(11) Multiple contused abrasions over an area 11 x 4
cm. On the outer aspect of right thigh 7cm. Above
knee.
(12) Contused abrasion 2x1cm on front of right knee.
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(13) Multiple small contused abrasions over an area 10
x 8 cm. On back of right leg 3cm. Below Knee.
(14) Contused abrasion 2.5x1 cm. On front of right leg.
16cm. above ankle.
(15) Contused abrasion 2x1 cm on front of right ankle.
(16) Multiple small contused abrasions over an area
30x7cm. on front of left leg, just below Knee.
(17) Incised punctured wound 5x2x9 cm. oblique on
outer aspect of left leg 2 cm. below Knee. Upper back
end showed splitting of tissues and other end sharply
cut. The wound was directed downwards.
(18) Contused abrasion 5.5x1cm. oblique on outer
aspect of left Knee.
(19) Multiple small contused abrasions over an area
20x16 cm. on the front of left thigh and Knee.
(20) Incised punctured wound 3.5 x 1 x 7.5 cm. oblique
on outer aspect of left hip. Upper back end was blunt
and other end sharply cut. The wound was directed
downwards.
(21) Abrasion 2 x 1 cm. on the outer aspect of left hip,
2 cm. above injury No.20.
(22) Incised punctured wound 3.5x1.5 x 1 cm. oblique
over left buttock. The upper inner end was blunt and
other end sharp. The wound was directed forwards.
(23) Incised wound 1.5 x O.3xO.5 cm. over left
buttock, 2 cm. below injury No.2.
(24) Contused abrasion 11x2 cm. oblique on right side
of back of trunk 10 cm. below tip of shoulder blade.
(25) Contused abrasion 2.5x1 cm. oblique on right side
of back of trunk, 2 cm. outer to midline and 5 cm.
above lilac crest.
(26) Multiple contused abrasions over an area 24 x 11
cm. on left side of chest 8 cm. below armpit. 8th and
9th ribs underneath showed fracture at their outer
angles.
(27) Incised punctured wound 2x0.5 cm. on left side of
back of trunk. Inner upper blunt end being 4 cm. below
tip of shoulder blade.
(28) Contused abrasion 1x0.5 cm. on back of left hand,
just above root of middle finger.
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(29) Incised wound 4 x 1 x 0.5 cm. oblique on back of
left wrist.
(30) Incised wound 3x1xO.5 cm. oblique on back of
left forearm 15 cm. below elbow.
(31)Multiple small abrasions over an area 13x4 cm. on
the front of left forearm just below elbow.
(32)Multiple contused abrasions over an area 25x10
cm. on back of left arm, just above elbow.
(33)Abrasion 5x3 cm. on top of left shoulder.
(34)Abrasion 5 x 3 cm. on the tip of penis.
In the opinion of Dr. Girish (PW.18), the injuries were caused
with the weapons recovered from the appellants and Kuttappan died of
head injury i.e. injury no. 1. as it was sufficient to cause death.
7. Babu (PW.1) was examined by Dr. C.P. Venugopal (PW.20) and
following injuries were found on his person:
(1) Cut injury 10 c.m. x 3 x 1 c.m. on the left thigh
- posterior aspect.
(2) Lacerated injury 6 x 2 x 1.5 c.m. on the back of
scalp left side bleeding.
8. Sobhanan (PW.2) son of the deceased was examined by Dr. P.R.
Anil Kumar (PW.21) and following injuries were found on his person:
(1) A cut injury in the right elbow.
(2) Lacerated wound frontal to occipital areas of the scalp
approximately 20 cm length.
(3) Cut injury on the right thigh and right leg.
(4) Lacerated injury in the left ear.
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(5) Lacerated injury on the left forearm, right palm and right forearm
and right elbow.
(6) Lacerated injury on the right thigh.
(7) Punctured wound in the right thigh and right leg.
(8) Abrasions left and right shoulder.
(9) Swelling left cheek.
(10)Fracture mandible left side. Comminuted fracture left lateral
malleious.
(11)Comminuted fracture fibular neck.
(12)Fracture lateral condyle left."
According to the opinion of Dr. P.R. Anil Kumar (PW.21),
Sobhanan (PW.2) suffered very serious injuries of grave nature and had
a very narrow escape from death.
9. In this factual scenario, Mr. C.N. Sree Kumar has mainly argued
on the application of the provisions of Section 149 IPC, contending that
all the appellant did not have common object to cause death of
Kuttappan (deceased) and as the seventeen persons had been involved,
it was not possible for the alleged eye-witnesses to give minute detail
about their respective overt act. More so, Sobhanan (PW.2) had
become unconscious after being beaten and regained conscious after
two days, thus, it was not possible for him to see the incident regarding
the death of his father Kuttuppan.
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The issue raised hereinabove alongwith other issues particularly
that all the witnesses were partisan and no independent witness was
examined; there was no light on the spot, therefore, the witnesses could
not see the incident properly, recovery effected was not proved
properly; identification of arms was far from satisfaction; there was
lack of credibility of the version of the prosecution and minor
contradictions in their statements have been properly considered by the
courts below and those factual issues do not require any further
appreciation.
SECTION 149 IPC: Scope and Object
10. Section 149 IPC has essentially two ingredients viz. (i) offence
committed by any member of an unlawful assembly consisting five or
more members and (ii) such offence must be committed in prosecution
of the common object (under Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be committed in
prosecution of the common object.
11. For "common object", it is not necessary that there should be a
prior concert in the sense of a meeting of the members of the unlawful
assembly, the common object may form on spur of the moment; it is
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enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part the offence
committed must be connected immediately with the common object of
the unlawful assembly of which the accused were members. [Vide:
Bhanwar Singh & Ors. v. State of M.P., (2008) 16 SCC 657]
12. Even if the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under second part of
Section 149 IPC if it can be held that the offence was such as the
members knew was likely to be committed. The expression 'know' does
not mean a mere possibility, such as might or might not happen. For
instance, it is a matter of common knowledge that if a body of persons
go armed to take forcible possession of the land, it would be right to
say that someone is likely to be killed and all the members of the
unlawful assembly must be aware of that likelihood and would be
guilty under the second part of Section 149 IPC.
13. There may be cases which would come within the second part,
but not within the first. The distinction between the two parts of
Section 149 IPC cannot be ignored or obliterated. [See : Mizaji & Anr.
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v. State of U.P., AIR 1959 SC 572; and Gangadhar Behera & Ors. v.
State of Orissa, AIR 2002 SC 3633].
14. However, once it is established that the unlawful assembly had
common object, it is not necessary that all persons forming the
unlawful assembly must be shown to have committed some overt act.
For the purpose of incurring the vicarious liability under the provision,
the liability of other members of the unlawful assembly for the offence
committed during the continuance of the occurrence, rests upon the fact
whether the other members knew before hand that the offence actually
committed was likely to be committed in prosecution of the common
object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81;
Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis
Daw v. State of W.B., (2010) 9 SCC 111].
15. The crucial question for determination in such a case is whether
the assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects specified by
Section 141. While determining this question, it becomes relevant to
consider whether the assembly consisted of some persons which were
merely passive witnesses and had joined the assembly as a matter of
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idle curiosity without intending to entertain the common object of the
assembly.(Vide: Masalti v. State of Uttar Pradesh, AIR 1965 SC
202)
16. In K.M. Ravi & Ors. v. State of Karnataka, (2009) 16 SC 337,
this Court observed that mere presence or association with other
members alone does not per se be sufficient to hold every one of them
criminally liable for the offences committed by the others unless there
is sufficient evidence on record to show that each intended to or knew
the likelihood of commission of such an offending act.
17. Similarly in State of U.P. v. Krishanpal & Ors., (2008) 16 SCC
73, this Court held that once a membership of an unlawful assembly is
established it is not incumbent on the prosecution to establish whether
any specific overt act has been assigned to any accused. Mere
membership of the unlawful assembly is sufficient and every member
of an unlawful assembly is vicariously liable for the acts done by others
either in prosecution of common object or members of assembly knew
were likely to be committed.
18. In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC 677,
this Court opined that for a member of unlawful assembly having
15
common object what is liable to be seen is as to whether there was any
active participation and the presence of all the accused persons was
with an active mind in furtherance of their common object. The law of
vicarious liability under Section 149 IPC is crystal clear that even the
mere presence in the unlawful assembly, but with an active mind, to
achieve the common object makes such a person vicariously liable for
the acts of the unlawful assembly.
19. Regarding the application of Section 149, the following
observations from Charan Singh v. State of U.P., (2004) 4 SCC 205,
are very relevant:
"13. ... The crucial question to determine is
whether the assembly consisted of five or more
persons and whether the said persons entertained
one or more of the common objects, as specified
in Section 141. ... The word `object' means the
purpose or design and, in order to make it
`common', it must be shared by all. In other
words, the object should be common to the
persons, who compose the assembly, that is to
say, they should all be aware of it and concur in
it. A common object may be formed by express
agreement after mutual consultation, but that is
by no means necessary. It may be formed at any
stage by all or a few members of the assembly
and the other members may just join and adopt it.
Once formed, it need not continue to be the same.
It may be modified or altered or abandoned at
any stage. The expression `in prosecution of
common object' as appearing in Section 149 has
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to be strictly construed as equivalent to `in order
to attain the common object'. It must be
immediately connected with the common object
by virtue of the nature of the object. There must
be community of object and the object may exist
only up to a particular stage, and not
thereafter...."
20. In Bhanwar Singh v. State of Madhya Pradesh, (2008) 16
SCC 657, this Court held:
"Hence, the common object of the unlawful
assembly in question depends firstly on whether
such object can be classified as one of those
described in Section 141 IPC. Secondly, such
common object need not be the product of prior
concert but, as per established law, may form on
the spur of the moment (see also Sukha v. State
of Rajasthan AIR 1956 SC 513). Finally, the
nature of this common object is a question of fact
to be determined by considering nature of arms,
nature of the assembly, behaviour of the
members, etc. (see also Rachamreddi Chenna
Reddy v. State of A.P. (1999) 3 SCC 97 )".
21. Thus, this court has been very cautious in the catena of
judgments that where general allegations are made against a large
number of persons the court would categorically scrutinise the
evidence and hesitate to convict the large number of persons if the
evidence available on record is vague. It is obligatory on the part of
the court to examine that if the offence committed is not in direct
17
prosecution of the common object, it yet may fall under second part of
Section 149 IPC, if the offence was such as the members knew was
likely to be committed. Further inference has to be drawn as what was
the number of persons; how many of them were merely passive
witnesses; what were their arms and weapons. Number and nature of
injuries is also relevant to be considered. "Common object" may also
be developed at the time of incident.
22. The trial court after appreciating the entire facts reached the
following conclusion:
"Further the manner in which the injuries were
inflicted on this witness as deposed by PWs. 2, 3
and 5 will go to show that the intention of accused
Nos. 1 to 17 who inflicted the injury on PW.2 was
with a common object to killing him. Further it
was also brought out in the evidence of these
witnesses that all the accused persons namely 1 to
17 were holding dangerous weapons in their
hands. Further it cannot be said that any of the
accused persons have not involved in committing
the offence and it cannot also be said that they
were not aware of the consequences of their act or
result of the act that is likely to be resulted on
account of the overt act committed by any one of
the member of that assembly. Similarly, the
evidence of PW3 will go to show that all these
accused persons have criminally trespassed into
her house and committed the crime. It is also
brought out in evidence that 17th accused
Sisupalan had beaten on her chest with hand and
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also Ext. 3 scene mahazar will go to show that on
account of the act of accused Nos. 1, 8, 12 and 5
the western door of the house has been broken
open and caused damage to the same. Further
some of the vessels also damaged in the incident
which is spoken to by PW3 and that is also evident
from the broken piece of wooden reaper with bold
(M.O.10) and also the steel vessel (M.O.16) will
go to show that damage has been caused to the
building of PW3 and also damage to the vessel. It
is also brought out in the evidence of PW3 that the
food articles were also damaged in the incident.
So it cannot be said that the accused persons who
are the members of the assembly do not know
about the consequence of their act. So it can be
safely concluded that accused Nos. 1 to 17 have
formed themselves into an unlawful assembly for
the purpose of rioting with deadly weapons and
also with the common object of causing murder of
PW2 Sobhanan, attacked him with deadly
weapons in their hands and also for the purpose of
committing the crime, they criminally trespassed
into the house of PW3 and also caused simple
injury to her and caused damage to her house and
also the food articles in the house and thereby all
the accused persons name accused Nos. 1 to 17
have committed the offences punishable under
Sections 143, 147, 148, 323, 307, 449 and 427
read with Section 149 IPC."
23. The High Court dealt with this issue and held as under:
"The accused persons armed with weapons were
waiting in the house of accused No. 1 for return of
PW2 to his house through the usual pathway after
attending the temple festival. Even when he tried to
escape by entering into the house of PW3, they
followed, chased and inflicted serious injuries on
him at the house of PW3. It is true that he luckily
saved his life. But, when his father and PW1 came
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hearing the cry, they were also assaulted and father
of PW2 was murdered. Yet, the Sessions Court
convicted for murder of the deceased only of the
persons participated in that act which was proved by
evidence. Others, namely, Accused Nos.12, 13, 16
and 17 were convicted only for offences under
Sections 143, 147, 148, 323, 307, 449 and 427 IPC
read with Section 149 IPC. It was deposed that A18
was unarmed and no witness has stated his role.
Therefore he was acquitted. Considering the
evidence in this case, the Sessions Court found that
accused Nos.1 to 17 armed with weapons, formed an
unlawful assembly with a common object of
attacking PW2 and also they trespassed into the
house of PW3 and brutally attacked PW2. Even
though he suffered serious injuries, he escaped from
death by luck. Common object can develop during
the course of incident at the spot.......... The Sessions
court found that even though common object of the
assembly was originally to attack PW2, when
hearing the cry PW1 and the deceased arrived, they
were attacked by some of the persons in the group
which attacked PW2. All of them may not have
shared the common object of murdering the
deceased. The Sessions Court found that since
Accused Nos.12, 13 and 16 were not attributed to
have caused injury on the deceased, they cannot be
held guilty under Section 302 IPC red with Section
149 IPC as it cannot be positively inferred that they
shared the common intention with the others to
murder the deceased. We are of the opinion that
A10 and A11 only attacked PW1 and their
involvement with regard to the deceased is equal to
accused Nos. 12 and 13. Similarly, A7 also can be
compared with A12 and 13 as it is not proved
beyond doubt that they shared the common object to
inflict injuries on the deceased."
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24. It is evident from the above that the trial court as well as the
High Court have proceeded in correct perspective and applied the
provisions of Section 149 IPC correctly. The facts have properly been
analysed and appreciated. In the instant case, seventeen accused
gathered at the residence of Sudhakaran (A.1) and waited for the
appropriate time knowing it well that Sobhanan (PW.2) would return
from the temple. Immediately, after seeing him, Sudhakaran (A.1)
shouted "chase him, chase him". In order to save his life, he ran away
and entered into "Sophia Bhawan". However, before he could enter
the house, he was inflicted injury by Sudhakaran (A.1) with the sword
stick. Sobhanan (PW.2) succeeded in entering the house and closing
the door from inside. The accused/appellants broke open the door and
caused injuries of very serious nature to Sobhanan (PW.2) and left him
under the impression that he had died. The accused were having one
sword stick, two choppers, one knife and twelve iron rods. All these
weapons were used by the appellants for committing the offences and
causing injuries to their victims. Kuttappan (deceased) received as
many as 34 injuries. In view thereof, if all the circumstances are taken
into consideration, it cannot be held that the appellants had not
participated to prosecute a `common object'. Even if it was not so, it
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had developed at the time of incident. In view thereof, submission
made by the learned counsel for the appellants in respect of
applicability of Section 149 IPC is not worth consideration.
25. We do not find any force in the submission made by the learned
counsel for the appellants that as the number of accused had been
seventeen and the incident was over within a very short time, it was not
possible for witnesses to give as detailed description as has been given
in this case, and there had been several contradiction therein, therefore,
their evidence is not reliable. In such a case even if minor
contradictions appeared in the evidence of witnesses, it is to be ignored
for the reason that it is natural that exact version of the incident
revealing any minute detail i.e. meticulous exactitude of individual acts
cannot be expected from the eye-witnesses. (See: Abdul Sayeed v.
State of Madhya Pradesh, (2010) 10 SCC 259).
In this case all the accused were very well known to the
witnesses. So their identification etc. has not been in issue. As their
participation being governed by second part of Section 149 IPC, overt
act of an individual lost significance.
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26. However, the courts below have made distinction in two sets of
the accused/appellants and that attained finality as the State did not
prefer any appeal against the same. All appellants in the second set
have been convicted for the offence punishable under Sections 307/149
IPC etc. and awarded sentence of 10 years rigorous imprisonment.
These appellants have submitted the certificates of service of sentence
rendered by them. According to the said certificate, these appellants
have served 4-1/2 years to 8 years. All of them have been granted bail
by this Court vide order dated 9.12.2009. In the facts and
circumstances of the case, their conviction is upheld, however, the
sentence is reduced as undergone. Their bail bonds are discharged.
Appeal of the other appellants stands dismissed.
Subject to the above modification, the appeal stands disposed of.
............................J.
(P. SATHASIVAM)
...........................J.
New Delhi, (Dr. B.S. CHAUHAN)
September 2, 2011
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