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Thursday, March 30, 2017

whether A3, A4, A14, A15 and A18 are liable to be convicted under Section 302/149 IPC. Taking into account the fact that the incident occurred in the year 1993, that they attacked the deceased with sticks causing simple injuries on non-vital parts, their conviction under Section 326/149 IPC will meet the ends of justice. The Trial Court convicted A4 under Section 324/149 IPC and sentenced for imprisonment for 2 years along with his conviction under Section 302/149 IPC. The High Court acquitted A4 under Section 302/149 IPC and reduced the sentence under Section 324/149 IPC to 1 year. A4 was separated from A3, A14, A15 and A18 only on the ground that PW3 spoke about his presence. Otherwise, the role ascribed to A4 is the same as that of A3, A14, A15 and A18. In the result A3 Majeed, A4 Ummer alias Podi Ummer, A14 Balaji, A15 Muraleedharan and A18 Hasheem alias Muhammed Hasheem are sentenced to 7 years imprisonment under Section 326/149 IPC.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.400 of 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

.... Appellant(s)
      Versus
MAJEED & ORS.                                       ….Respondent(s)
                                    With

                       CRIMINAL APPEAL No.661 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

 .... Appellant(s)
      Versus
SIDDIK & ORS.                                        ….Respondent(s)

                                     And

                       CRIMINAL APPEAL No.141 OF 2007

STATE    OF    KERALA                                                   ....
Appellant(s)
      Versus

ABOOBACKER @ ARABI ABOOBACKER & ORS.
                                                             ….Respondent(s)



                               J U D G M E N T


L. NAGESWARA RAO, J.
      The Sessions Court, Thrissur convicted A1 to A4,  A14,  A15,  and  A18
under Section 302  read  with  149  Indian  Penal  Code,  1860  (hereinafter
referred to as the ‘IPC’) and  sentenced  them  to  imprisonment  for  life.
They were also convicted for offences under Section 143, 147, 148, 341,  342
and 324/149 IPC.  A5 to A13, A16 and A17 were acquitted. A1 to A4, A14,  A15
and A18 who were convicted,  filed  an  Appeal  before  the  High  Court  of
Kerala.  The State of Kerala and the complainant (father  of  the  deceased)
also filed appeals against the order of acquittal of  A5  to  A13,  A16  and
A17.  By way of abundant caution  the  complainant  also  filed  a  Criminal
Revision challenging the acquittal of the said  accused.   The  judgment  of
the Trial Court acquitting A5 to A13, A16 and A17 was confirmed by the  High
Court.   A1 was convicted under Section 302 and  sentenced  to  imprisonment
for life.   A2 and A4 were convicted under  Section  324/149  IPC  and  were
sentenced to imprisonment of 1 year.  A3, A14, A15 and A18  were  acquitted.
A1 filed an appeal  before  this  Court  which  abated  as  he  died.    The
complainant filed an appeal against the acquittal of A2 to A4, A14, A15  and
A18.  He also filed an appeal challenging the acquittal of A5  to  A13,  A16
and A17.  The State of Kerala also assailed the acquittal of A2 to A4,  A14,
A15 and A18 by filing an appeal.  It is relevant to take note  of  the  fact
that initially 21 persons were named as accused.  A21 absconded and A19  and
A20 died during the course of trial.   A1, A2, A5 and A12  died  during  the
pendency of the appeals.
2.    The case of the prosecution was that PW-14, a Head Constable  attached
to Kunnamkulam Police Station, received a  phone  call  in  the  evening  on
10.03.1993 that there was a fight  going  on  at  Ottappilavu  centre.    He
along with two other police men reached the place of the incident and  found
a person lying on the road margin on the western side of the  road.   As  he
was unconscious and was bleeding due  to  injuries,  he  was  taken  to  the
Government hospital, Kunnamkulam  for  treatment  in  a  police  jeep.   The
Doctor examined him  and  declared  him  dead.    As  the  identity  of  the
deceased was not known, PW 14 kept the body in the mortuary,  went  back  to
the police station and recorded the  details  in  the  General  Diary.   The
First Information Statement of PW-1  Krishnankutty  was  recorded  at  12:00
midnight on 10.03.1993.  He stated that there was a dispute  between  people
belonging to RSS and CPI (Marxist) party in connection with the festival  at
Korattikara Vishnu Bhagwati Temple.  He further stated that at  about  08:15
pm on 10.03.1993 when he was  walking  back  home  and  reached  Ottappilavu
centre he saw A2 to A5, A13,  A19  and  A21  along  with  number  of  others
attacking Suresh Babu.  He also stated  that  Suresh  Babu  was  stabbed  to
death by A13 and others.   On the basis of the First  Information  Statement
FIR No.95 of  1993  was  registered  at  Kunnamkulam  Police  Station  under
Section  143,  147,  148,  341,  324,  302/149  IPC  at  12:00  midnight  on
10.03.1993 by PW15.  Inquest was conducted between 9:45 am to  12:45  pm  by
PW15.   The Assistant Professor of Forensic  Medicine  at  Medical  College,
Thrissur (PW13) conducted the autopsy immediately  thereafter.    The  post-
mortem certificate referred to 26 injuries  on  the  body  of  the  deceased
Suresh Babu and the cause of death was  stated  as  “the  deceased  died  of
multiple injuries sustained to chest”.  The FIR was sent to  the  Magistrate
in the morning on 11.03.1993.
3.    Not satisfied with the investigation, Madhavan (PW12), the  father  of
the deceased filed a private complaint on  01.04.1994  before  the  Judicial
Magistrate 1st Class, Kunnamkulam. He  along  with  4  other  witnesses  was
examined and process was issued to the accused  persons.  PW4  Chandran  was
mentioned as a witness in the complaint. On 08.09.1994,  Madhavan  submitted
another list of witnesses in which PW5 and PW6 were included.  The cases  of
the  prosecution  and  the  private  complainant  were  consolidated.    The
Sessions Court directed the prosecution to submit a  schedule  of  witnesses
which would include the witnesses mentioned in the private  complaint  also.
The consolidated list of witnesses given by the  prosecution  included  PW4,
PW5 and PW6.
4.    After completion of investigation, all the accused  were  charged  for
committing offences under Sections  143, 147,  148,  341,  323  and  302/149
IPC.  As stated earlier A19 and A20 died during the course of trial and  A21
absconded.  The other accused pleaded not guilty  and  were  tried  for  the
aforementioned offences.   There were 16 witnesses  examined  on  behalf  of
the prosecution and 3 witnesses by the defence. PW1 Krishnankutty,  who  was
the informant and PW2 Gopinathan  who  was  an  eyewitness  turned  hostile.
Likewise, PW-8 Sulalman, PW9 Ashraf and PW10 Francis who were  attestors  to
the scene mahazar and seizure of  the  weapon  also  turned  hostile.   PW11
Kuttikrishan who was the driver  of  the  bus  in  which  the  deceased  was
travelling also turned hostile.
5.    The testimony of PW3 was  examined  in  detail  by  the  Trial  Court.
After considering the submissions on behalf of the defence, the Trial  Court
held that the evidence of PW3 Subramanian  was  consistent,  cogent  and  in
conformity with the prosecution case.  The Trial Court  held  that  PW4  was
also a credible witness.    According  to  the  Trial  Court  there  was  no
material contradiction brought out in the evidence of PW5 Balan who  was  an
eyewitness.   PW6 Velayudhan was found to be  a  doubtful  witness  and  the
Trial Court held that it was not safe to rely on his evidence.    The  Trial
Court concluded that there was corroboration to the oral  testimony  of  PW3
to PW5 from the  medical  evidence.    The  oral  evidence  showed  that  A1
stabbed on the left side of the back of the deceased  which  corresponds  to
injury No.24.  The other stab injuries inflicted by A1 and A21 as  mentioned
by the eyewitness also correspond to the stab injuries  in  Exh.P-11  (post-
mortem certificate).  Injury No.24 had the  depth  of  7.5  c.m.  caused  by
knife which entered the  left  chest  cavity  through  the  5th  intercostal
space.  It terminated at the upper part of lower  lobe  of  the  left  lung.
The Doctor opined that this injury was sufficient in the ordinary course  of
nature to cause death.   The  Trial  Court  held  that  A1  had  a  definite
intention to kill  the  deceased.   Considering  the  fact  that  the  other
accused continued to beat the deceased with sticks even  after  stabbing  by
A1 and A21, the Trial Court held that there was a common  object  of  murder
on the part of the accused.  A5 to A13, A16 and A17 were  acquitted  by  the
Trial Court as there was no evidence against them.  A1 to A4, A14,  A15  and
A18 were convicted under Section 302/149 IPC and sentenced  to  imprisonment
for life.
6.    The appeals filed by the convicted accused, the appeals filed  by  the
State and the complainant against the acquittal of some accused  were  taken
up along with the Criminal Revision filed by  the  complainant  against  the
acquittal.  The High Court discarded the evidence of PW5 and PW6.  The  High
Court held that PW3 is a trustworthy witness and PW4’s evidence can be  used
for corroboration.  Placing reliance on the evidence of  PW3  and  PW4,  the
High Court upheld the conviction of A1 under Section  302  IPC.    The  High
Court also held A2 and A4 guilty of  an  offence  punishable  under  Section
324/149 IPC by acquitting them of an  offence  under  Section  302/149  IPC.
A3, A14, A15 and A18 were acquitted for offences under Section  302/149  IPC
by the High Court.  The acquittal of other accused A5 to A13,  A16  and  A17
recorded by the Trial Court was confirmed  by  the  High  Court.   The  High
Court  referred  to  the  remand  report  dated  17.03.1993  of  the  Circle
Inspector in which it was recorded that on 10.03.1993  sympathisers  of  CPI
(M) were attacked by the followers of BJP at Ottappilavu.  In that  incident
Moidunny,  Ali,  Subramannian,  Shameer  and  Kunhikoya  sustained   serious
injuries and crime No.96 of 1993 in the  Kunnamkulam  Police  Station  under
Section 143, 147, 148, 323, 324, 307/149 IPC  was  registered.   There  were
three other cases which were registered against the sympathisers of CPI  (M)
for incidents that took place at 06:15 pm on the same day.   Taking note  of
the series of clashes on 10.03.1993, the High Court repelled the  submission
of the defence about the unexplained delay in filing  of  the  FIR  and  the
delay in the FIR reaching the Magistrate only on the next  day.    The  High
Court relying upon the judgments of this Court held  that  the  recovery  of
weapon not  being  proved  is  not  fatal  to  the  prosecution  case.   The
submission made on behalf  of  the  accused  that  PW3  and  PW4  cannot  be
believed on the ground that their  conduct  was  contrary  to  normal  human
behaviour was also rejected on the ground that there cannot be any  straight
jacket formula for the reaction of a person who  had  witnessed  a  criminal
act.  The High Court relied upon the judgments of this  Court  in  which  it
was held that human behaviour is unpredictable and there is no set  rule  of
natural reaction.   The defence  witnesses  were  disbelieved  by  the  High
Court.  All the accused except A1, A2 and  A4  were  acquitted  of  all  the
charges against them on the ground that the prosecution was unable to  prove
the common object of the unlawful assembly for the murder of Suresh Babu.
7.    The complainant filed Criminal  Appeal  No.400  of  2006  against  the
acquittal of A2 to A4, A14, A15 and A18.   He  also  filed  Criminal  Appeal
No.661 of 2006 assailing the acquittal of A5  to  A13,  A16  and  A17.   The
State of Kerala has filed Criminal Appeal No.141  of  2007  challenging  the
judgment of the High Court by  which  A2  to  A4,  A14,  A15  and  A18  were
acquitted.   A1 also approached this Court by filing an Appeal  against  his
conviction under Section 302 IPC.  However, the said appeal abated  in  view
of the death of A1.  We have heard Mr.Basant R., learned Senior Counsel  for
the appellant/ complainant in  Criminal  Appeal  Nos.400  of  2006,  Mr.  G.
Prakash, Advocate for the State of Kerala in Crl. Appeal  No.  141  of  2007
and Mr. Siddharth Luthra, learned Senior  Counsel  for  the  accused.    Mr.
Basant submitted that the  complainant  was  compelled  to  file  a  private
complaint in view of  the  perfunctory  investigation  into  the  murder  of
Suresh  Babu.   He  submitted  that  there  was  a  consolidation   of   the
prosecution case and the case filed by the  complainant  under  Section  210
Cr.P.C.  He further submitted that a  consolidated  list  of  witnesses  was
prepared.    According  to  the  learned  Senior  Counsel,  the  High  Court
committed  a  serious  error  in  eschewing  the  evidence   of   PW5   from
consideration.   He also stated that the evidence of PW4  should  have  been
relied upon by the High Court instead of using  it  only  for  corroborating
the evidence of PW3.  He urged that the High Court  erred  in  holding  that
the common object of the accused was  not  proved.    He  also  argued  that
admittedly there was a homicide and A1 was convicted for causing  the  death
of Suresh Babu.   The High Court also  convicted  A2  and  A4  for  offences
under Sections 143, 147, 148,  324/149  IPC.   He  submitted  that  all  the
accused are liable for conviction under Section 302/149 IPC especially  when
A2 and A4 were convicted under Section 143, 147, 148,  324/149  IPC  and  A1
convicted under Section 302 IPC.  Mr.G.Prakash, Advocate, appearing for  the
State of Kerala adopted the submissions made by Mr. Basant.
8.    Mr.  Siddharth  Luthra,  learned  Senior  Counsel  appearing  for  the
accused took us through the evidence of PW4, PW5 and PW6 and submitted  that
they are all interested  witnesses  who  deposed  at  the  instance  of  the
complainant.  He submitted that the informant  PW1  and  another  eyewitness
PW2 turned hostile.   He stated that the offence  took  place  on  a  public
road and no independent eyewitnesses were produced  by  the  prosecution  to
prove the case.  He further submitted that apart from PW4 no  other  witness
cited in the private complaint was examined.  The  partisan  and  interested
testimonies of eye witnesses who belonged to the  opposite  political  party
ought not to have been taken into consideration by  the  Courts  below.   He
also commented upon the  unnatural  behaviour  of  PW3  and  PW4  after  the
incident.   Mr. Luthra finally submitted that the appeals against  acquittal
should not be interfered lightly by this Court.  In any event, according  to
him, when there are two views possible, the  accused  should  be  given  the
benefit.
9.    As stated earlier, A1, A2, A5 and A12 died during the pendency of  the
appeals before this Court.  The remaining accused can  be  categorised  into
three groups.  The first group consists of A5 to A13, A16 and A17  who  were
acquitted both by the Trial Court and the  High  Court.   The  second  group
consists of A3, A14, A15 and A18 who  were  convicted  by  the  Trial  Court
under Section 302/149 IPC but acquitted by the High Court.    A4  forms  the
third group whose conviction under Section 302/149 IPC by  the  Trial  Court
was set aside by the High Court.  However, he was  convicted  under  Section
324/149 IPC and sentenced for a period of 1 year.
10.   PW3, who was an independent witness  and  was  believed  by  both  the
Courts below, gave a vivid description of the incident.  He stated  that  he
was a resident of Ottappilavu and that he was acquainted with  the  deceased
Suresh Babu who was residing about 1 k.m. away from his house.   He  deposed
that he went to Kunnamkulam to purchase medicines for his  brother  who  was
unwell.  He boarded a stage carriage bus by name Babu  bus  at  Kunnamkulam.
The deceased Suresh Babu was travelling in the same  bus.   He  stated  that
when the bus reached Ottappilavu junction, A1, A2, A4  and  A5  entered  the
bus, pulled Suresh Babu out of the bus and took him to  the  front  side  of
the bus and attacked him.  He  further  stated  that  A1  inflicted  a  stab
injury on the back of the left side  of  the  chest  of  Suresh  Babu.   The
deceased fell down and A1  inflicted  two  more  stab  injuries.   When  the
deceased  was  struggling  to  stand  up  and  escape  the   other   accused
indiscriminately beat him with a reaper and  sticks.    He  did  not  alight
from the bus and continued his travel and got down at  Chalissery  junction.
 He stated that he  was  questioned  by  the  police  after  two  days.   He
identified M.O.1 knife used by A1.   PW4  was  also  an  eyewitness  to  the
incident.  He stated that A2  to  A4,  A10,  A13,  A14,  A15,  A18  and  A20
attacked the deceased with sticks and a reaper after A1  and  A21  inflicted
stab injuries on the deceased.  He stated that his  house  is  situated  2/3
k.m. from the house of the deceased and that he also  attended  the  funeral
of Suresh Babu.  He was cited as a witness in the  private  complaint  filed
by PW12 (appellant).  His statement was recorded  by  the  Magistrate  under
Section 202 Cr. P.C.   PW6 was disbelieved by the Trial Court as well as  by
the High Court.  The evidence of PW5 disbelieved by  the  High  Court.   The
High Court acquitted A3, A14, A15 and  A18  of  the  charges  under  Section
302/149 IPC on two grounds.   The first ground was that PW3 did  not  depose
about  their  presence  and  it  was  only  PW4  who  stated   about   their
involvement.  The second ground was that there is no evidence to  show  that
the members of the unlawful assembly had a common object to cause the  death
of Suresh Babu.  Modification of the conviction  and  sentence  of  A4  from
Section 302/149 IPC to Section 324/149 IPC was on the  ground  that  A4  who
was a member of the unlawful assembly did  not  share  a  common  object  of
causing the death of Suresh Babu along with A1 and A21.
11.   We are of the opinion that the High Court committed  a  serious  error
in not  taking  into  consideration  the  evidence  of  PW4.    The  finding
recorded by the High Court that the evidence of PW4 can be  considered  only
for the limited purpose of corroboration of evidence of PW3 is  unreasonable
and perverse.   After recording a finding that the evidence  of  PW4  cannot
be rejected only on the ground that he was not  questioned  by  the  police,
the High Court proceeded to hold that the evidence of PW4 can be  used  only
for corroboration of PW3’s evidence.  Unlike PW5 and PW6 who were  cited  as
witnesses in the second list of witnesses  given  by  the  complainant  five
months after filing of the complaint, PW4 was named  as  a  witness  in  the
complaint.  Further, his statement was  recorded  by  the  Magistrate  under
Section 202 Cr. P.C.  There was a consolidated list of  witnesses  given  by
the prosecution.  The High Court has not given any  reason  as  to  why  the
evidence  of  PW4  can  be  used  only  for  corroboration.   On  a  careful
examination of the evidence of PW4 we are of  the  considered  opinion  that
the Trial Court was right in relying upon his testimony and the  High  Court
was not correct in holding that it can be used  only  for  corroboration  of
PW3’s evidence.  The finding of the High Court that A3,  A14,  A15  and  A18
are entitled for acquittal on the basis that PW3 did not speak  about  their
presence is liable to be set aside as PW4 had categorically mentioned  about
their involvement.
12.   The High Court held that the accused were not aware that the  deceased
was travelling in the bus and there is no evidence to show that they  formed
an unlawful assembly with a view to attack  and  commit  his  murder.    The
High Court referred to the clash between the supporters of CPI (M)  and  BJP
workers on 10.03.1993.  The High Court held that the deceased  was  attacked
due to political rivalry but there is no evidence to show that  the  members
of the unlawful assembly had a common object  to  commit  his  murder.   The
High Court also found that A1 and A21 alone inflicted stab injuries and  the
other members of the unlawful assembly who caused injuries on the non  vital
parts cannot be said to have shared the common object of causing  the  death
of Suresh Babu.  The common object of the unlawful assembly can be  gathered
from the nature of the assembly, arms used by them and the behaviour of  the
assembly at or before the scene of occurrence.   It is an  inference  to  be
deduced from the fact and circumstances of the case (See Lalji v.  State  of
U.P., (1989) 1 SCC 437 ¶8). It is also settled law that  the  mere  presence
in the unlawful assembly may vicariously  fasten  criminal  liability  under
Section 149 IPC (See. State of UP v. Dan Singh (1997) 3 SCC 747).
13.   We are not in agreement with the High Court regarding the  absence  of
common object of the A3, A4, A14, A15  and  A18.   The  evidence  on  record
shows that the deceased and accused belong to two political parties  opposed
to each other.  There were three other  incidents  of  clashes  between  the
rival groups.  The existence of a CPI (M) office at Ottappilavu junction  is
proved by a sketch of the site of the  incident.   The  accused  along  with
others assembled and were searching for BJP workers travelling in the  buses
that were passing through the junction.  We do not agree  with  the  finding
of the High Court that merely because the accused did  not  plan  to  murder
Suresh Babu (deceased), there was no common object.  The  common  object  of
the members of the unlawful assembly was to attack  any  BJP  supporter  who
was passing through Ottappilavu junction.  Unfortunately,  Suresh  Babu  was
in the bus and he was killed in the attack.
14.   Justice V. R. Krishna Iyer in Shivaji  Sahabrao  Bobade  v.  State  of
Maharashtra, (1973) 2 SCC 793 ¶ 6  held as follows:
      “The evil of acquitting a guilty person light heartedly as  a  learned
Author [Glanville Williams in ‘Proof of  Guilt’.]  has  sapiently  observed,
goes much beyond the simple fact  that  just  one  guilty  person  has  gone
unpunished. If unmerited acquittals become general, they tend to lead  to  a
cynical disregard of the law, and this in turn leads to a public demand  for
harsher legal  presumptions  against  indicted  “persons”  and  more  severe
punishment of those who are found guilty. Thus, too frequent  acquittals  of
the guilty may lead  to  a  ferocious  penal  law,  eventually  eroding  the
judicial protection of the guiltless. For all these reasons it  is  true  to
say, with Viscount Simon, that “a miscarriage of justice may arise from  the
acquittal of the guilty no less than from the conviction of the  innocent.…”
In short, our jurisprudential enthusiasm  for  presumed  innocence  must  be
moderated by  the  pragmatic  need  to  make  criminal  justice  potent  and
realistic.”

The point that remains to be considered is whether A3, A4, A14, A15 and  A18
are liable to be convicted under Section 302/149 IPC.  Taking  into  account
the fact that the incident occurred in the year  1993,  that  they  attacked
the deceased with sticks causing simple injuries on non-vital  parts,  their
conviction under Section 326/149 IPC will meet the  ends  of  justice.   The
Trial Court convicted  A4  under  Section  324/149  IPC  and  sentenced  for
imprisonment for 2 years along with his  conviction  under  Section  302/149
IPC.  The High Court acquitted A4 under Section 302/149 IPC and reduced  the
sentence under Section 324/149 IPC to 1 year.  A4  was  separated  from  A3,
A14, A15 and A18 only on the ground  that  PW3  spoke  about  his  presence.
Otherwise, the role ascribed to A4 is the same as that of A3, A14,  A15  and
A18.  In the result A3 Majeed, A4 Ummer alias Podi Ummer,  A14  Balaji,  A15
Muraleedharan and A18 Hasheem alias Muhammed  Hasheem  are  sentenced  to  7
years imprisonment under Section 326/149 IPC.  They shall  surrender  within
4 weeks to serve the sentence.  Criminal Appeal No. 661  of  2006  filed  by
the  complainant  against  the  acquittal  of  A5  Siddik,  A6  Asharaf,  A7
Sundaran,  A8  Rajan,  A9  Monutty  alias  Dharmarajan,  A10  Kunhippa,  A11
Kunhimon, A13 Sathyan, A16 Shaji Alias Kuttamon and A17 Kurukkal  Rassak  is
dismissed.  Criminal Appeal No. 400 of 2006 and 141 of  2007  filed  by  the
complainant and State respectively against the acquittal of  A3  Majeed,  A4
Ummer alias Podi Ummer, A14 Balaji, A15 Muralledharan and A18 Hasheem  alias
Muhammed Hasheem are allowed.



..……................................J
                                              [S. A. BOBDE]



                    ..……................................J
                                                     [L. NAGESWARA RAO]

New Delhi,
March 30, 2017
                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.400 OF 2006


KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.


                                            ...APPELLANT(S)

                                   VERSUS
MAJEED & ORS.
...RESPONDENT(S)


                                    WITH

                       CRIMINAL APPEAL No.661 OF 2006


KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.


                                                ...APPELLANT(S)

                                   VERSUS

SIDDIK & ORS.
   ...RESPONDENT(S)

                                    WITH

                       CRIMINAL APPEAL No.141 OF 2007


STATE OF KERALA                   …..APPELLANT(S)

                                   VERSUS


ABOOBACKER         @         ARABI         ABOOBACKER         &         ORS.
                       ...RESPONDENT(S)


                                      1


                                 2 JUDGMENT

S. A. BOBDE, J.
      I am in complete agreement with my learned brother  Nageswara  Rao  J.
I would, however, like to deal with  one  submission  made  at  the  bar  in
relation to the culpability of  an  accused  participating  in  an  unlawful
assembly in general, and that of A4 Ummer alias Podi  Ummer  in  particular.
It has been argued on behalf of A4 that his mere presence  in  the  unlawful
assembly could not be inculpatory since none of the witnesses attributed  an
overt act to the accused.  Such a submission without any  concrete  evidence
enabling the Court to infer that the accused did  not  in  fact  harbor  the
same intention as that of the unlawful assembly, cannot be accepted.
      In the first place, the presence of an accused as part of an  unlawful
assembly, when not as a  curious  onlooker  or  a  bystander,  suggests  his
participation  in  the  object  of  the  assembly.   When  the   prosecution
establishes such presence, then it is the conduct of the accused that  would
determine whether he continued to participate in the unlawful assembly  with
the intention to fulfill the object of the  assembly,  or  not.    It  could
well be that an accused had no intention to participate  in  the  object  of
the assembly.  For example, if the object  of  the  assembly  is  to  murder
someone, it is possible that the accused  as  a  particular  member  of  the
assembly had no knowledge of  the  intention  of  the  other  members  whose
object was to murder, unless of course the evidence to  the  contrary  shows
such knowledge. But having participated and gone along with the  others,  an
inference whether inculpatory or exculpatory can be drawn from  the  conduct
of such an accused.  The  following  questions  arise  with  regard  to  the
conduct of such an accused:-
What was the point  of  time  at  which  he  discovered  that  the  assembly
intended to kill the victim?
Having discovered that, did he make any attempt to stop  the  assembly  from
pursuing the object?
If he did, and failed, did  he  dissociate  himself  from  the  assembly  by
getting away?
      The answer to these  questions  would  determine  whether  an  accused
shared the common  object  in  the  assembly.   Without  evidence  that  the
accused had no knowledge of the unlawful object of the assembly  or  without
evidence that after having gained knowledge, he  attempted  to  prevent  the
assembly from accomplishing the unlawful object, and without  evidence  that
after having failed to do so, the accused  disassociated  himself  from  the
assembly, the mere participation of an accused in such an assembly would  be
inculpatory.
      In the case of A4, there is no such evidence  on  record  that  having
participated in the unlawful assembly which resulted in the death of  Suresh
Babu, he made any attempt to either stop the incident from taking place,  or
having found out that he could not prevent it, dissociated himself from  the
assembly.
      Therefore, he must be held liable under Section 326/149 of the  Indian
Penal Code.

                                                  .....................………J.
                                                              [ S.A. BOBDE ]
NEW DELHI,
MARCH 30, 2017










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