REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1618  OF 2005

Shaji & Ors.           .... Appellant(s)

Versus

State of Kerala               .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) This appeal is filed against the final judgment and order  

dated 08.04.2005 passed by the Division Bench of the High  

Court of Kerala at Ernakulam in Criminal Appeal No. 952 of  

2004  whereby  the  High  Court  dismissed  the  appeal  of  the  

appellants herein and confirmed their conviction and sentence  

under Sections 143, 147, 148, 342, 449 and 302 read with  

Section 149 of Indian Penal Code (hereinafter referred to as  

“IPC”) passed by the trial Court.   

1

2) Brief facts:

(a) The victim, Usman @ Haneefa, aged about 24 years is the  

brother of Yasin (PW-4) and cousin brother of Mohd. Rafi (PW-

1),   the  first  informant.    One Nasar  (CW-15)  was running  

Kodakassery  Oil  Mill  at  Mannambatta  during  the  relevant  

period.  The Oil Mill belonged to Appachan (CW-14) which was  

taken on rent by Nasar (CW-15).  The victim is the brother’s  

son of Nasar and was also a worker and helper in the Oil Mill.  

There was enmity between Shaji (A-1), first appellant herein  

and the  victim.   Devarajan  (A-2)  and Haridas  (A-3)  are  the  

brothers of  A-1 and Kannan @ Gopalakrishnan (A-4)  is  the  

brother-in-law of A-1.

(b) On 31.12.2000,  at  about  3  p.m.,  the  accused persons  

(Shaji,  Devarajan,  Haridas,  Kannan  @  Gopalakrishnan,  

Latheef  and  Unnikrishnan)  formed  themselves  into  an  

unlawful assembly came in a van armed with deadly weapons  

such as chopper, iron bars, iron pipe, wooden sticks etc. with  

the common object of doing away with Usman, who was sitting  

in  the  Verandah  of  the  smoke  house  of  the  Oil  Mill  at  

Mannambatta.    All  the  accused persons attacked him and  

2

finally,  A-1  inflicted  three  cut  injuries  on  his  head  with  a  

chopper. Thereafter, they left  the place of occurrence in the  

Van in which they came.   At the time of occurrence, Mohd.  

Rafi (PW-1) and Geetha (PW-2), a worker in the Oil Mill were  

also present there.  Mohd. Rafi (PW-1) along with Baby (PW-5),  

who  came  there,  took  Usman  @  Haneefa  to  the  nearest  

hospital where he was declared brought dead.  At 6.00 p.m.,  

PW-1 furnished his statement before the police and thereafter,  

the  police  registered  a  crime  against  Shaji  and  five  other  

unnamed persons.  During the investigation, the identities of  

other  accused  persons  were  also  revealed.   After  the  

completion  of  investigation,  the  Circle  Inspector  of  Police,  

Cherpulassery  filed  the  charge-sheet  against  all  the  six  

accused persons before the Court.

(c)  The Additional Sessions Judge, Palakkad, after examining  

17  witnesses  and  other  relevant  materials  passed  an  order  

dated 08.06.2004 and held A-1 to A-4 guilty of the offences  

punishable under Sections 143, 147, 148, 342, 449 and 302  

read with Section 149 of IPC and sentenced them to undergo  

rigorous imprisonment for six months under Section 143, for  

3

one year under Section 148, for another term of six months  

under Section 342, again for two years under Section 449 and  

to undergo life imprisonment with fine of Rs.10,000/- with a  

default sentence under Section 302 read with Section 149 IPC  

and acquitted Accused Nos. 5 & 6. No separate sentence was  

awarded under Section 147 IPC.  

(d)   Challenging  the  judgment  of  the  Additional  Sessions  

Judge, Palakkad, Accused Nos. 1-4 filed Criminal Appeal No.  

952 of 2004 before the High Court of Kerala.   The Division  

Bench  of  the  High  Court,  by  impugned  order  dated  

08.04.2005,  dismissed  the  appeal  and  confirmed  their  

conviction and sentence passed by the trial Court.  Aggrieved  

by the said judgment, the appellants preferred this appeal by  

way of special leave before this Court.

3) Heard Mr. T.N. Singh, learned counsel for the appellants  

and  Mr.  T.S.R.  Venkata  Ramana,  learned  counsel  for  the  

respondent-State.

4) Mr.  T.N.  Singh,  learned  counsel  appearing  for  the  

appellants, at the outset, submitted that in view of the order of  

the  State  Government  releasing  Shaji  (A-1),  Appellant  No.1  

4

herein,  by  G.O.  [MS]  No.  47/2011/Home dated  18.02.2011  

before the date of expiry of his life imprisonment by executing  

a bond on the conditions specified therein, he is not pressing  

the appeal insofar as A-1 is concerned.  The same has been  

taken on record.   

5) Now in the present appeal, we are concerned with other  

three accused, namely, Appellant Nos. 2 to 4.  Mr. T.N. Singh  

submitted that the trial Court and the High Court committed  

an error in convicting these appellants under Section 302 by  

applying the provision of Section 149 IPC particularly, when  

there was no material in the evidence of PWs 1, 2 and 5.  He  

further submitted that out of six persons charge-sheeted, two  

were acquitted by the trial Court and the assembly must be  

deemed to have been composed of only four persons,  hence it  

cannot  be  regarded  as  an  unlawful  assembly  in  terms  of  

Section 141 IPC.

6) Insofar as the second submission of the learned counsel  

for the appellants is concerned, it is true that out of six named  

persons, two were acquitted by the trial Court and only four  

were convicted under Section 302 read with Section 149 IPC.  

5

7) On the other hand, Mr. T.S.R. Venkata Ramana, learned  

counsel  appearing for  the respondent-State,  by drawing our  

attention to the judgment of the Constitution Bench in Mohan  

Singh  &  Anr.  Vs.  State  of  Punjab,  AIR  1963  SC  174,  

submitted that even after acquittal of two accused, in order to  

bring  home  the  charge  under  Section  149  IPC,  it  is  not  

necessary  that  five  or  more  persons  must  necessarily  be  

brought  before  the  Court  and  convicted.    The  following  

principles laid down by the Constitution Bench are relevant for  

our consideration:  

“8. The  true  legal  position  in  regard  to  the  essential  ingredients of an offence specified by Section 149 are not in  doubt. Section 149 prescribes for vicarious or constructive  criminal  liability  for  all  members of  an unlawful  assembly  where an offence is committed by any member of such an  unlawful assembly in prosecution of the common object of  that  assembly  or  such  as  the  members  of  that  assembly  knew to  be  likely  to  be  committed  in  prosecution  of  that  object.  It  would  thus  be  noticed  that  one  of  the  essential  ingredients of Section 149 is that the offence must have been  committed  by  any  member  of  an  unlawful  assembly,  and  Section 141 makes it clear that it is only where five or more  persons constituted an assembly that an unlawful assembly  is born, provided, of course, the other requirements of the  said  section  as  to  the  common  object  of  the  persons  composing that assembly are satisfied. In other words, it is  an  essential  condition  of  an  unlawful  assembly  that  its  membership must be five or more. The argument, therefore,  is that as soon as the two Piara Singhs were acquitted, the  membership of the assembly was reduced from five to three  and  that  made  Section  141  inapplicable  which  inevitably  leads  to  the  result  that  Section  149  cannot  be  invoked  against the appellants. In our opinion, on the facts of this  

6

case,  this  argument  has  to  be  upheld.  We  have  already  observed that the point raised by the appellants has to be  dealt  with on the  assumption that  only  five  persons were  named  in  the  charge  as  persons  composing  the  unlawful  assembly  and  evidence  led  in  the  course  of  the  trial  is  confined only to the said five persons. If that be so, as soon  as two of the five named persons are acquitted, the assembly  must  be  deemed  to  have  been  composed  of  only  three  persons and that clearly cannot be regarded as an unlawful  assembly.

9. In  dealing  with  the  question  as  to  the  applicability  of  Section 149 in such cases, it is necessary to bear in mind  the  several  categories  of  cases  which  come  before  the  criminal courts for their decision. If five or more persons are  named in the  charge as  composing an unlawful  assembly  and evidence adduced by the prosecution proves that charge  against all of them, that is a very clear case where Section  149 can be invoked. It is, however, not necessary that five or  more  persons  must  be  convicted  before  a  charge  under  Section  149  can  be  successfully  brought  home  to  any  members of the unlawful assembly. It may be that less than  five  persons may be charged and convicted under Section  302/149 if the charge is that the persons before the Court  along with others named constituted an unlawful assembly;  the other persons so named may not be available for trial  along  with  their  companions  for  the  reason,  for  instance,  that they have absconded. In such a case, the fact that less  than five persons are before the Court does not make Section  149 inapplicable for the simple reason that both the charge  and the evidence seek to prove that the persons before the  Court and others number more than five in all and as such,  they together constitute an unlawful assembly. Therefore, in  order to bring home a charge under Section 149 it  is  not  necessary  that  five  or  more  persons  must  necessarily  be  brought before the court and convicted……..”

8) In view of the decision of the Constitution Bench, in the  

case on hand, even after acquittal of two accused from all the  

charges leveled against them, if there is any material that they  

7

were members of the unlawful assembly, the conviction under  

Section 302 can be based with the aid of Section 149.

9) Now  let  us  consider  whether  the  prosecution  has  

established the conviction of the remaining accused-appellants  

under Sections 302/149 IPC?   

10)   In order to understand the rival claims, it is useful to  

refer Section 149 IPC which reads as under:

“149.  Every  member  of  unlawful  assembly  guilty  of  offence committed in prosecution of common object.—If  an  offence  is  committed  by  any  member  of  an  unlawful  assembly  in  prosecution  of  the  common  object  of  that  assembly, or such as the members of that assembly knew to  be likely to be committed in prosecution of that object, every  person who, at the time of the committing of that offence, is  a member of the same assembly, is guilty of that offence.”

11) While considering the applicability of necessary ingredients  

of Section 149 IPC, we had an occasion to consider the same  

in Kuldip Yadav & Ors. vs. State of Bihar,  JT 2011 (4) SC  

436.   After  analyzing the  conditions therein,  it  was held  in  

paragraph 26 of the judgment as under:

“26)  The  above  provision  makes  it  clear  that  before  convicting  accused  with  the  aid  of  Section  149  IPC,  the  Court must give clear finding regarding nature of common  object and that the object was unlawful.  In the absence of  such finding as also any overt act on the part of the accused  persons,  mere  fact  that  they  were  armed  would  not  be  sufficient  to prove common object.   Section 149 creates a  specific offence and deals with punishment of that offence.  Whenever the court  convicts  any person or persons of  an  

8

offence with the aid of Section 149, a clear finding regarding  the common object of the assembly must be given and the  evidence discussed must  show not only the nature  of  the  common object but also that the object was unlawful.  Before  recording  a  conviction  under  Section  149  IPC,  essential  ingredients of Section 141 IPC must be established. …………”  

The above principles have been reiterated in Bhudeo Mandal  

& Ors.  vs.  State of Bihar (1981) 2 SCC 755,  Ranbir Yadav  

vs.  State of  Bihar (1995)  4 SCC 392,  Allauddin Mian &  

Ors. Sharif Mian & Anr.  Vs. State of Bihar, (1989) 3 SCC  

5,  Rajendra  Shantaram  Todankar vs.  State  of  

Maharashtra & Ors. (2003) 2 SCC 257 and State of Punjab  

vs. Sanjiv Kumar @ Sanju & Ors. (2007) 9 SCC 791.   

12)  The following conclusion in Kuldip Yadav (supra) is also  

relevant which reads as under:

  “It is not the intention of the legislature in enacting Section  149 to render every member of unlawful assembly liable to  punishment for every offence committed by one or more of  its  members.   In order  to attract  Section 149, it  must  be  shown that the incriminating act was done to accomplish the  common object of unlawful assembly and it must be within  the  knowledge  of  other  members  as  one  likely  to  be  committed  in  prosecution  of  the  common  object.   If  the  members  of  the  assembly  knew  or  were  aware  of  the  likelihood  of  a  particular  offence  being  committed  in  prosecution of the common object, they would be liable for  the same under Section 149 IPC”

13) Though as per the decision of  the Constitution Bench,  

the prosecution is well within its jurisdiction to establish the  

9

charge under Section 149 IPC even after the acquittal of two  

members  of  the  unlawful  assembly,  however,  in  order  to  

attract  Section  149  IPC,  it  must  be  shown  that  the  

incriminating act was done to accomplish the common object  

of unlawful assembly and it must be within the knowledge of  

other members as one likely to be committed in prosecution of  

the  common  object.   In  the  case  on  hand,  admittedly  the  

prosecution  rests  on  the  evidence  of  PWs  1,  2  and  5  who  

alleged to have witnessed the occurrence.  We have already  

mentioned that we are not concerned with A-1 (Appellant No.1  

herein) in the present appeal in view of the order of premature  

release  by  the  State  Government.   PW-1,  in  his  evidence,  

though mentioned that he knows all the six accused persons  

and identified them in the Court, has not attributed to any of  

the accused other than A-1.  In categorical terms, he informed  

the  Court  that  “A-1  (Shaji)  cut  the  head  of  Usman  by  the  

chopper  (MO1)”.   He  also  deposed  that  the  incident  had  

completed within ten minutes.   Though he deposed that he  

told about the incident to one Appachan, the owner of the mill,  

that Shaji and others attacked Usman, the said Appachan was  

1

not examined.  Like PW-1, PW-2 also attributed only against  

A-1,  who  was  in  possession  of  a  chopper.   Though  she  

mentioned  that  A-4  was  carrying  iron  rod,  she  had  not  

elaborated anything about the role of others except A-1.  In the  

same  way,  the  other  eye  witness,  PW-5  identified  and  

attributed only A-1 for the commission of offence.  Absolutely,  

there is no reference to the role of other accused.  Even the  

Investigation Officer examined as PW-14 had not mentioned  

any thing about the role of other accused except A-1.  In fact,  

in  cross-examination,  he  had  admitted  that  “PW-1  had  not  

given statement specifically that A-2 beat Usman by Iron rod”.  

In view of the claim of the learned counsel for the appellants  

about  the  evidence  of  PWs  1,  2  and  5,  we  have  carefully  

analysed the same.  As rightly submitted by Mr. T.N. Singh,  

none  of  these  witnesses  attributed  involvement  of  other  

accused except A-1.  As observed in  Kuldip Yadav (supra),  

before convicting accused with the aid of Section 149 IPC, the  

Court  must  give  clear  finding  regarding  nature  of  common  

object and that the object was unlawful.   In the absence of  

such a finding as also any overt act on the part of the accused  

1

persons,  mere  fact  that  they  were  armed  would  not  be  

sufficient to prove common object.  Inasmuch as Section 149  

creates a specific offence and deals with punishment of that  

offence, in order to convict a person or persons with the aid of  

Section 149 IPC, a clear finding regarding common object of  

the assembly must be available  and the evidence discussed  

must show not only the nature of the common object but also  

that the object was unlawful.   In the case on hand, we are  

satisfied that the above-mentioned ingredients have not been  

fulfilled  or  established  by  the  prosecution  insofar  as  the  

accused other than A-1.    

14)  Even the Doctor who was examined as PW-7 opined that  

the injury sustained on the head is sufficient to cause death in  

the ordinary course of  nature.  It  is  not in dispute that the  

Head injury was caused by A-1 which is also clear from the  

evidence of  PWs. 1,  2 and 5.   In view of  the same, we are  

satisfied that the trial Court and the High Court committed an  

error in convicting the present appellants (A-2 to A-4) under  

Section 302 with the aid of Section 149 IPC.

1

15) In  view of  the  above  discussion,  the  appeal  insofar  as  

Appellant No.1 (A-1) is concerned, is dismissed as not pressed.  

Insofar as Appellant Nos. 2-4 (A-2 to A-4) are concerned, the  

conviction and sentence under Sections 302/149 IPC are set  

aside.  Inasmuch as Appellant Nos. 2-4 were enlarged on bail  

by this Court vide order dated 02.11.2007, their bail  bonds  

shall stand discharged.  The appeal is allowed on the above  

terms.

 ...…………….…………………………J.            (P. SATHASIVAM)                                   

 .…....…………………………………J.    (H.L. GOKHALE)  

NEW DELHI; MAY 3, 2011.

1