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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

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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.           

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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)

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

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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:-

1. What was the point of time at which he discovered

that the assembly intended to kill the victim?  2. Having discovered that, did he make any attempt

to stop the assembly from pursuing the object?  

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3. 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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