Hamlet @ Sasi & Ors vs State Of Kerala

These criminal appeals are filed by the convicted

accused persons against the judgment of the High Court of

Kerala at Ernakulam dated 7th November, 2001 whereby

the High Court confirmed the sentence imposed on these

appellants by the trial court under Sections 302 and 324

read with Section 149 IPC. Since particulars of the

punishment imposed on other accused is not relevant for

the purpose of considering these appeals, we will not

advert to it unless necessary in any particular context. The

appellants before us are A-1 to A-3 before the trial court.

The prosecution case is that Yugine @ Sajiv and

others, some of whom were prosecution witnesses in this

case, were active followers of the Indian National Congress

Party. The accused were stated to be followers of

Communist Party of India (Marxist). It is stated that at

about 3 p.m. on 1.10.1991, 44 accused entered into a

criminal conspiracy to commit the murder of Yugine

(deceased), Jose (PW-2) and others as also to commit

dacoity and mischief in the houses of the followers of

Congress-I. In pursuance of that common object, at about 4

p.m. on 1.10.1991 the accused formed themselves into

members of an unlawful assembly, armed with deadly

weapons. It is alleged that they chased deceased Yugine

and PW-2 who were returning from the shop of PW-15

situated at Anjuthengu on a public road. In that process at a

place near Manjamoodu junction A-1 to A-4, A-24 and five

others wrongfully confined the deceased and PW-2 from

proceeding in any direction. The prosecution further

alleges that the 1st accused caught hold of Yugine by his

waist, lifted him up and threw him on the ground.

Thereafter, he kicked the deceased on the stomach and A-2

and another accused beat the deceased with iron bar, while

A-3, A-4 and two others beat the deceased and PW-2 with

Oars. The prosecution alleges that PW-1, brother of the

deceased, came running to the place of occurrence and he

was also beaten up by the accused. Subsequently, A-5 to

A-7, A-9 and A-10 to A-23 and other accused joined in

attacking the deceased and PW-2. The further case of the

prosecution is that A-6, A-7 and four other persons

attacked PW-4 and inflicted injuries on him with an

intention to kill him. The prosecution also alleges that the

accused persons trespassed into the houses of certain

prosecution witnesses and committed robbery.

After the said attack the deceased, PW-2 and PW-4

were taken to the Taluka Head Quarters Hospital and from

there to Medical College Hospital, Trivandrum. While

undergoing treatment, Yugine succumbed to the injuries at

11.20 p.m. on 1.10.1991. In the meanwhile, PW-1 at about

4 p.m. had lodged a complaint Ext.P-1 in the Police Station

which was registered for offences punishable under

Sections 143, 147, 148, 120-B, 450, 451, 452, 342, 359,

397, 427, 323, 324, and 307 IPC. After investigation a final

report was filed by the police against 44 persons when

offence under Section 302 read with Section 149 was

included. Out of these 44 accused, A-25, A-26 and A-37

died and out of the other accused persons mentioned in the

final report only 24 persons were tried by the trial court,

therefore, those persons against whom the trial could not

proceed were treated as "other accused persons".

The learned IInd Additional Sessions Judge,

Thiruvananthapuram acquitted A-5, A-9, A-10 and A-17

while he convicted A-1 to A-4, A-6, A-7 and A-24 for

offences punishable under Sections 143, 147, 148, 342,

427, 450, 451, 452, 461, 395, 397, 324, 307 and 302 IPC

read with Section 149 IPC. He sentenced all these accused

persons to undergo rigorous imprisonment for various

terms and for various offences while for the offence

punishable under Section 302 he directed the said accused

to undergo imprisonment for life.

As stated above, in an appeal filed by the convicted

accused persons the High Court while confirming the

sentence imposed on A-1 to A-4 under Section 302 as well

as under Sections 143, 147, 148 and 324 acquitted A-6 and

A-7 of the offence punishable under Section 302 but

convicted them of an offence punishable under Section 324

IPC. So far as A-24 is concerned he was acquitted of all the

charges.

It is against the said judgment of the High Court, 4

appellants are before us who have been convicted of an

offence punishable under Section 302 read with Section

149 IPC and for certain other offences.

Shri Sanjay Parikh, learned counsel appearing for the

appellants contended that the High Court having rightly

disbelieved the prosecution case in regard to the attack on

PW-4, as also the prosecution case against other acquitted

accused, the High Court ought to have extended the said

benefit of doubt to the appellants also. He also contended

that even according to the finding of the High Court the

prosecution has been able to establish the overt act of only

4 accused in regard to the assault on the deceased,

therefore, the High Court fell in error in convicting the

accused persons with the aid of Section 149 IPC because

the number of people identified by the High Court in

regard to the assault on the deceased was less than 5 as

required under Section 141 of IPC. Hence, in the absence

of any material to show that apart from these appellants

there were some more accused who formed the unlawful

assembly, the High Court could not have convicted the

appellants for a charge under Section 302 with the aid of

Section 149 IPC. He, of course, also attacked the evidence

led by the prosecution in regard to the incident itself which

according to him was full of contradictions and

improbabilities. Alternatively the learned counsel argued

that even assuming that the prosecution has been able to

establish the attack on the deceased by these appellants, the

nature of injuries suffered by the deceased were such that

these appellants can not be attributed with the intention to

kill the deceased nor could they be held to have had

knowledge that the injuries caused by them in the ordinary

course would lead to Yugine's death, hence, at the most the

appellants can be held guilty of an offence under Section

324 IPC.

Shri John Mathew, learned counsel appearing for the

respondent-State supported the impugned judgment and

contended that from the material produced by the

prosecution, it is clear that Accused 1 to 4, 6, 7 and 24

along with 5 other persons had attacked the deceased with

iron rods etc. and some of the injuries suffered by the

deceased were such as would cause death in the ordinary

course. Therefore, assuming that the High Court was

justified in acquitting A-6, A-7 and A-24 of the offence

punishable under Section 302, still it could be seen from

the finding of the High Court that A-1 to A-4 and 5 others

had attacked the deceased, therefore, Section 149 is rightly

relied on the High Court to convict the appellants. He

submitted that because of the political rivalry between the

two groups of people, deceased Yugine was done to death

and the nature of injuries would clearly show the intention

of the accused was to commit murder, therefore, the

conviction under Section 302 read with Section 149 was

justified.

We do notice that both the courts below have rejected

the prosecution case of conspiracy punishable under

Section 120-B of IPC. The High Court has also found that

the prosecution has not established its case under Section

307, 395 etc. We also notice that the High Court has

specifically come to the conclusion that A-5, A-6 and A-24

were not the members of the unlawful assembly the object

of which was to commit the murder of the deceased.

Therefore, bearing in mind the argument of the learned

counsel for the appellants, we will examine the evidence on

record as also the findings of the two courts below. The

trial court in this regard came to the following conclusion :

"It is further found that the death of the

deceased was caused by A1, A2, A3 A4, A6,

A7 and A24. After discussing points No.17,

18 & 19, I have found that A1, A2, A3, A4,

A6, A7 and A24 committed the aforesaid

acts in furtherance of their common object.

Even though the presence of other accused

persons at the scene of occurrence was

spoken to by PW-1, specific overt acts are

alleged only against A1, A2, A3, A4, A6,

A7 and A24 in committing the aforesaid

acts."

Based on this finding the trial court convicted the said

accused of an offence punishable under Section 302 read

with Section 149 among some other offences.

From the above finding of the trial court, we notice

that the members of the unlawful assembly were identified

by their individual overt acts and not by their mere

presence. On this basis, according to the learned Sessions

Judge, the unlawful assembly which attacked the deceased

and which had the common object of committing the

murder of the deceased consisted only of A-1 to A-4, A-6,

A-7 and A-24, that is, an assembly of 7 members. Whereas

the High Court in regard to the persons who constituted the

unlawful assembly to attack the deceased held thus in its

judgment :

"So the finding of the learned

Sessions Judge that the prosecution has

succeeded in establishing that A1 to A4 are

guilty of the offences under Section 302

read with Section 149 of the Indian Penal

Code is correct and is confirmed. But there

is no evidence to hold that A6, A7 and A24

also inflicted any injuries on Yugine or they

were aware that common object of the

unlawful assembly is to eliminate Yugine or

there is likelihood to commit such offence."

From the above observations of the High Court, we

notice that even the High Court proceeded on the basis of

accepting the prosecution case as to the members of the

unlawful assembly only based on the overt act of the

accused persons and not by their presence. It is in this

process the High Court found that the prosecution has not

established that A-6, A-7 and A-24 had inflicted any injury

on Yugine, therefore, it held that these three accused

persons were not members of the unlawful assembly.

Consequence of such a conclusion of the High Court would

be that it is only A-1 to A-4 who attacked the deceased,

therefore, they alone can be found to be members of the

unlawful assembly and none other. However, without

elaborating any further on the prosecution evidence and

without naming or identifying or even coming to a final

conclusion that there were persons other than A-1 to A-4

who together formed the unlawful assembly with the

common object of committing the murder of the deceased.

The High Court came to the following conclusion :

"We have already found that the

evidence adduced only proves the identity of

A1 to A4 as members of unlawful assembly.

So we hold that the prosecution has

succeeded in establishing that an unlawful

assembly was formed at 4 p.m. on 1.10.1996

and A1 to A4 were members of that

unlawful assembly. The evidence also shows

that they were armed with deadly weapons

and committed the offence of rioting. So the

finding of the learned Sessions Judge that

A1 to A4 are guilty of the offences

punishable under Sections 143, 147 and 148

of the Indian Penal Code is correct and

confirmed………. But the finding of the

court below that A6, A7 and A24 are guilty

of the offences under Sections 143, 147 and

148 of Indian penal Code are set aside and

they are acquitted of that offences."

From the above, we find an element of contradiction

in the judgment of the High Court in regard to its

conclusion as to who were the members of the unlawful

assembly, while in an earlier part of the judgment it did

observe that A-1 to A-4 and five others attacked the

deceased, later on, while coming to the conclusion as to

who were the members of the unlawful assembly the High

Court rests satisfied with A-1 to A-4 alone as being

members of the unlawful assembly. If that be so, we think

the High Court was not justified in invoking Section 149 to

convict the appellants of an offence under Section 302

because the said number falls short of the minimum

number required to form an unlawful assembly under

Section 141 IPC. It is true that this Court in any number of

cases has held that there can be an unlawful assembly of

less than five named accused so long as there is material to

come to the conclusion that the prosecution has established

that apart from these named accused there were also others

who were unnamed but who were members of such

assembly and shared the common object of that unlawful

assembly. In the instant case it is true that originally the

complaint stated that about 50 persons formed unlawful

assembly, that number came down to 44 when the final

report of the investigating was filed before the trial court

out of which only 24 persons were brought to trial. Out of

these 24 accused, the Sessions Judge came to the specific

conclusion that only A-1 to A-4, A-6, A-7 and A-24

together formed an unlawful assembly which would

number seven in total, while the High Court came to the

conclusion that out of these seven persons three accused

namely A-6, A-7 and A-24 could not have been the

members of the unlawful assembly thus leaving only A-1

to A-4 as the members of the unlawful assembly.

Therefore, in the absence of a specific finding that there

were other members also in the said unlawful assembly, the

invocation of Section 149 will be untenable. Learned

counsel for the State contended that it is the prosecution

case that apart from the appellants and others accused there

were other persons also who formed the unlawful assembly

and finding of the trial court that only seven members

formed the unlawful assembly was erroneous. Similarly, he

contended that the High Court also committed an error in

holding that A-6, A-7 and A-24 were not the members of

the unlawful assembly, therefore, we should consider the

prosecution case de hors the findings of the courts below

and only in the background of the complaint and evidence

produced in this case which would indicate that apart from

these four accused even Accused 6, 7 and 24 and many

others were members of the unlawful assembly. We cannot

accede to this request of the learned counsel for the

respondent-State because all other accused except A-1 to

A-4 have been acquitted by either the trial court or the

High Court and there is no appeal against their acquittal,

therefore, the question of re-appreciation of the evidence in

these cases as against the acquitted persons does not arise

at all at this stage even for the limited purpose of finding

out whether A-1 to A-4 were members of an unlawful

assembly as required under Section 141 IPC.

The learned counsel for the State then pointed out

from the judgment of the High Court that it had come to

the conclusion that it is A-1 to A-4 and five others who

were involved in the attack on Yugine, therefore, we

should proceed on the basis that apart from A-1 to A-4

there were five others who were also members of the

unlawful assembly. We are unable to accept this argument

because though from the judgment of the High Court we

notice that there is an observation of the High Court that A-

1 to A-4 and five others were involved, this was only an

observation and not a finding of the High Court. The

finding of the High Court in regard to the members of the

unlawful assembly is found in that part of the judgment

which is extracted by us herein above wherein the High

Court came to a definite conclusion that so far as the attack

on the deceased is concerned it is only A-1 to A-4 who

were the members of the unlawful assembly. To fortify this

conclusion of ours at the cost of repetition, we once again

extract that part of the judgment which runs as follows :

"We have already found that the

evidence adduced only proves the identity of

A-1 to A-4 as members of unlawful

assembly. So we hold that the prosecution

has succeeded in establishing that an

unlawful assembly was formed at 4 p.m. on

1.10.1996 and A-1 to A-4 were members of

that unlawful assembly."

From the reading of this part of the judgment of the

High Court, we find that the High Court has confined the

members of the unlawful assembly only to A-1 to A-4.

Therefore, we can not accede to the argument of the learned

counsel for the respondent-State. In that view of the matter,

we cannot accept the finding of the High Court that A-1 to

A-4 can be found guilty of an offence punishable under

Section 302 read with Section 149 IPC.

The question then would be : Will the appellants be

entitled to an acquittal of the charge under Section 302

because the prosecution has failed to prove that the

unlawful assembly did contain more than five persons

entertaining the same common object ?

This Court in Nethala Pothuraju vs. State of Andhra

Pradesh (1992 1 SCC 49) has held that the non

applicability of Section 149 IPC is no bar in convicting the

accused under section 302 read with Section 34 IPC if the

evidence discloses commission of an offence in furtherance

of the common intention of such accused. This is because

both Sections 149 and 34 IPC deal with a combination of

persons who become liable to be punished as sharers in the

commission of offences. Therefore, in cases where the

prosecution is unable to prove the number of members of

the unlawful assembly to be five or more, courts can

convict the guilty persons with the aid of Section 34 IPC

provided that there is evidence on record to show such

accused shared the common intention to commit the crime.

While doing so the courts will have to bear in mind the

requirement of Section 34. It is well known that to

establish the common intention of several persons to attract

Section 34 of the IPC the following two fundamental facts

have to be established – (i) common intention (ii)

participation of the accused in commission of the offences.

If the above two ingredients are satisfied even overt act on

the part of some of the persons sharing in the common

intention is not necessary. [See: Jai Bhagwan & Ors. vs.

State of Haryana (1999 3 SCC 102)]. Bearing in mind the

above principles and applying the same to the facts of the

present case, we notice that on the date of incident a large

number of people, which included A-1 to A-4 came in a

group which the prosecution alleged had the object of

causing the murder of the deceased and to assault PW-2

and PW-4 among other illegal intentions. Of course, the

prosecution has failed to establish many of these charges.

However, from the facts of this case it proved atleast that

A-1 to A-4 formed a separate group and targeted the

deceased and PW-2 against whom there was a specific

motive for these appellants to attack him. The prosecution

has also proved in that attack the deceased died and PW-2

suffered injuries. The question then is: What was the

common intention of these persons in attacking the

deceased ? While the learned counsel for the appellants

contended that the common intention at the most was only

to cause hurt, while the learned counsel for the respondent-

State vehemently submitted that it was to cause the death

of Yugine and grievous hurt to PW-2. In this context, if we

examine the prosecution case, we notice that A-1 caught

hold of the deceased by his waist and threw him on the

ground causing him grievous injuries on the back side of

his head and thereafter A-1 assaulted the deceased by

kicking him on various parts of the body and A-2 to A-4

attacked him with iron rods and Oars which caused among

other injuries, a lacerated wound on the neck of the right

elbow leading to fractures of the humorous, a contusion on

the left ankle leading to fracture of the fibula, apart from

nearly 12 other injuries on different parts of the body.

Consequent to the throw deceased suffered a head injury

because of which there was cerebral bleeding. The

participation of these accused persons in the assault of the

deceased even after he was thrown down to the ground by

A-1 clearly shows that the further attack by A-2 to A-4 was

in furtherance of a common intention they shared with A-1,

therefore, in our opinion, Section 34 is clearly attracted to

the facts of this case.

But then the question would be: What was the

common intention shared by these accused persons in the

attack on the deceased ? While the learned counsel for the

appellant contended that from the nature of injuries and the

manner in which the assault was committed, it could be

nothing more than to cause hurt to the deceased, whereas

the learned counsel for the State contended that it is clear

from the injury No.4 suffered on the head of the deceased

that all these persons had the knowledge that by such

injuries, the victim would suffer death in the normal

course, but in spite of the same, all these accused

proceeded to attack the deceased, causing more injuries,

which would show that each one of these persons had acted

in furtherance of a common intention to cause death of the

deceased.

We have noted that the medical report showed that

the deceased has suffered about 14 injuries out of which

injury Nos.1 and 2 caused fractures and injury No.4 was a

head injury leading to subdural haemorrhage on the left

part of the temporal lobe which seems to be the most

serious of all wounds which ultimately led to the Yugine's

death. After examining the entire prosecution evidence, we

notice none of these accused used any deadly weapon

carried by them on any vital part of the body like the head.

Injury No.4 which led to the death of the deceased was

caused by the fall caused by A-1. It is very difficult to

come to the conclusion if really A-1 had the intention to

kill Yugine, he would have only thrown him to the ground

without attacking him the iron rod available to him to be

used. The fact that he only kicked the deceased after the

fall also supports this inference of ours. Similarly, even

according to the prosecution A-2 to A-4 used the iron rods

and oars to hit the deceased on his limbs only and not on

any vital part of the body. All these facts show that these

appellants did share a common intention, the same was

only to cause grievous hurt to the deceased and not to

cause his death.

Therefore, we are of the opinion that the High Court

was wrong in convicting the appellants for an offence

punishable under Section 302 read with Section 149 IPC.

We, however, find the appellants guilty of causing grievous

hurt by dangerous weapons punishable under Section 326

read with Section 34 IPC. We sentence these appellants for

the said offence to undergo rigorous imprisonment for 7

years and further impose a fine of Rs.1,000/- each, in

default, the appellants shall undergo simple imprisonment

for a further period of one month each.

The High Court has also convicted the appellants

herein for an offence punishable under section 324 read

with Section 149 IPC and has awarded 2 years' RI on this

count to the appellants. We alter this conviction also to one

under Section 324 read with Section 34 IPC, and maintain

the same sentence awarded by the High Court for the said

offence under Section 324. We direct the sentences

imposed by us to run concurrently, and the appellants shall

be entitled to remission of the sentence for the period

already undergone, if any. The appeals are allowed partly.