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  

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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  

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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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