//
you're reading...
legal issues

How to determine common object – 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

Theatre at Ernakulam, Kochi/Cochin of Cochin C...

Image via Wikipedia

 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.

 2

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 

 3

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 

 4

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. 

 5

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 

 6

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. 

 7

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. 

 8

(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. 

 9

 (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.

 10

 (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. 

 11

 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 

 12

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. 

 13

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 

 14

idle curiosity without intending to entertain the common object of the 

assembly.(Vide: Masalti v. State of Uttar Pradesh, AIR 1965 SC 

202)

16. In K.M. Ravi & Ors. v. State of Karnataka, (2009) 16 SC 337, 

this Court observed that mere presence or association with other 

members alone does not per se be sufficient to hold every one of them 

criminally liable for the offences committed by the others unless there 

is sufficient evidence on record to show that each intended to or knew 

the likelihood of commission of such an offending act. 

17. Similarly in State of U.P. v. Krishanpal & Ors., (2008) 16 SCC 

73, this Court held that once a membership of an unlawful assembly is 

established it is not incumbent on the prosecution to establish whether 

any specific overt act has been assigned to any accused. Mere 

membership of the unlawful assembly is sufficient and every member 

of an unlawful assembly is vicariously liable for the acts done by others 

either in prosecution of common object or members of assembly knew 

were likely to be committed. 

18. In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC 677, 

this Court opined that for a member of unlawful assembly having 

 15

common object what is liable to be seen is as to whether there was any 

active participation and the presence of all the accused persons was 

with an active mind in furtherance of their common object. The law of 

vicarious liability under Section 149 IPC is crystal clear that even the 

mere presence in the unlawful assembly, but with an active mind, to 

achieve the common object makes such a person vicariously liable for 

the acts of the unlawful assembly.

19. Regarding the application of Section 149, the following 

observations from Charan Singh v. State of U.P., (2004) 4 SCC 205, 

are very relevant:

 "13. ... The crucial question to determine is 

 whether the assembly consisted of five or more 

 persons and whether the said persons entertained 

 one or more of the common objects, as specified 

 in Section 141. ... The word `object' means the 

 purpose or design and, in order to make it 

 `common', it must be shared by all. In other 

 words, the object should be common to the 

 persons, who compose the assembly, that is to 

 say, they should all be aware of it and concur in 

 it. A common object may be formed by express 

 agreement after mutual consultation, but that is 

 by no means necessary. It may be formed at any 

 stage by all or a few members of the assembly 

 and the other members may just join and adopt it. 

 Once formed, it need not continue to be the same. 

 It may be modified or altered or abandoned at 

 any stage. The expression `in prosecution of 

 common object' as appearing in Section 149 has 

 16

 to be strictly construed as equivalent to `in order 

 to attain the common object'. It must be 

 immediately connected with the common object 

 by virtue of the nature of the object. There must 

 be community of object and the object may exist 

 only up to a particular stage, and not 

 thereafter...."

20. In Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 

SCC 657, this Court held:

 "Hence, the common object of the unlawful 

 assembly in question depends firstly on whether 

 such object can be classified as one of those 

 described in Section 141 IPC. Secondly, such 

 common object need not be the product of prior 

 concert but, as per established law, may form on 

 the spur of the moment (see also Sukha v. State 

 of Rajasthan AIR 1956 SC 513). Finally, the 

 nature of this common object is a question of fact 

 to be determined by considering nature of arms, 

 nature of the assembly, behaviour of the 

 members, etc. (see also Rachamreddi Chenna 

 Reddy v. State of A.P. (1999) 3 SCC 97 )".

21. Thus, this court has been very cautious in the catena of 

judgments that where general allegations are made against a large 

number of persons the court would categorically scrutinise the 

evidence and hesitate to convict the large number of persons if the 

evidence available on record is vague. It is obligatory on the part of 

the court to examine that if the offence committed is not in direct 

 17

prosecution of the common object, it yet may fall under second part of 

Section 149 IPC, if the offence was such as the members knew was 

likely to be committed. Further inference has to be drawn as what was 

the number of persons; how many of them were merely passive 

witnesses; what were their arms and weapons. Number and nature of 

injuries is also relevant to be considered. "Common object" may also 

be developed at the time of incident. 

22. The trial court after appreciating the entire facts reached the 

following conclusion: 

 "Further the manner in which the injuries were 

 inflicted on this witness as deposed by PWs. 2, 3 

 and 5 will go to show that the intention of accused 

 Nos. 1 to 17 who inflicted the injury on PW.2 was 

 with a common object to killing him. Further it 

 was also brought out in the evidence of these 

 witnesses that all the accused persons namely 1 to 

 17 were holding dangerous weapons in their 

 hands. Further it cannot be said that any of the 

 accused persons have not involved in committing 

 the offence and it cannot also be said that they 

 were not aware of the consequences of their act or 

 result of the act that is likely to be resulted on 

 account of the overt act committed by any one of 

 the member of that assembly. Similarly, the 

 evidence of PW3 will go to show that all these 

 accused persons have criminally trespassed into 

 her house and committed the crime. It is also 

 brought out in evidence that 17th accused 

 Sisupalan had beaten on her chest with hand and 

 18

 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 

 19

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." 

 20

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 

 21

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. 

 22

 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

 23

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,468 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: