Ramachandran & Ors vs State Of Kerala

Ramachandran & Ors. Etc. ...Appellants

Versus

State of Kerala ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order

dated 7.4.2005 passed by the High Court of Kerala at Ernakulam in

Criminal Appeal Nos. 1675 and 1955 of 2003 by which the High

Court, while affirming the findings of fact, modified the judgment and

order of the trial court dated 29.8.2003 in Sessions Case No. 58 of 2001

i.e. Criminal Appeal No. 1675 of 2003 stood dismissed, while

Criminal Appeal No. 1955 of 2003 was partly allowed.

2. Facts and circumstance giving rise to this appeal are that:

A. Babu (PW.1); Sobhanan (PW.2); and Parvathy (PW.4) all

relatives were having inimical terms with the appellants. Several

criminal cases were pending between them. In order to take revenge,

the appellants formed an unlawful assembly for the purpose of

committing murder of Sobhanan (PW.2). They waited in the house of

Sudhakaran (A.1) on 12.4.2000, which was the last day of Mahotsavam

conducted in the Shanmughaviiasam temple at Kulasekharamangalam,

at about 10.00 p.m.

B. Sobhanan (PW.2) came alongwith his 8 years old son along the

pathway on the eastern side of the house of Sudhakaran (A.1) from the

temple. Sudhakaran (A.1) repeatedly shouted "catch him". The

accused chased him and on seeing this, Sobhanan (PW.2) ran from the

place leaving his son there towards the house of Sobhana (PW.3) i.e.

"Sophia Bhawan". However, before Sobhanan (PW.2) could enter

"Sophia Bhawan", Sudhakaran (A.1) inflicted cut injury on his hand.

Sobhanan (PW.2) entered the said house and succeeded in closing the

door from inside. All the accused except Shaji (A.18) broke open the

door and inflicted injuries on Sobhanan (PW.2) with their respective

weapons and he was dragged to the western courtyard and again

beaten. In this process, a large number of articles of the use of "Sophia

Bhawan" got destroyed.

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C. While hearing the hue and cry, Kuttappan (deceased) father of

Sobhanan (PW.2) and Babu (PW.1) reached there. The appellants

rushed towards Kuttappan (deceased) shouting "Kill them" and

thereafter, Sudhakaran (A.1) inflicted a cut injury on the head of the

deceased with a sword stick in his hand and other accused inflicted

injuries on him with their respective weapons, namely, choppers,

knives and iron rods. When Babu (PW.1) and Parvathy (PW.4) made

an attempt to intervene, they were also attacked by the appellants and

injured. Kuttappan succumbed to the injuries caused by the accused

at the spot and the accused persons ran away from the spot.

D. An FIR in respect of the incident was lodged and thus,

investigation commenced. The recovery of the weapons was made at

the instance of the accused and after completing the formalities, 18

accused were put on trial. The prosecution to prove its case examined

a large number of witnesses including five eye-witnesses. Out of them,

four had been injured witnesses.

E. On conclusion of the trial, the court acquitted Shaji (A.18) and

convicted A1 to A11, 14 and 15 under Sections 143, 147, 148, 307, 323,

324, 449, 427 and 302 of the Indian Penal Code, 1860 (hereinafter called

`the IPC') read with Section 149 IPC and sentenced to undergo

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imprisonment for life and also for payment of fine of Rs.25,000/- each,

in default to undergo rigorous imprisonment for five years under Section

302 IPC and they are further sentenced to undergo rigorous

imprisonment for ten years each and also to pay a fine of Rs.10,000/-

each, in default to undergo rigorous imprisonment for three years each

under Section 307 IPC and further sentenced to undergo rigorous

imprisonment for one year each and also to pay a fine of Rs.3000/- each,

in default to undergo rigorous imprisonment for two months each under

Section 324 IPC and they are also liable to be sentenced to undergo

rigorous imprisonment for six months each and also to pay a fine of

Rs.1000/- each. In default to undergo rigorous Imprisonment for two

months each under Section 323 IPC and further sentenced to undergo

rigorous imprisonment for six months each and also to pay a fine of

Rs.1000/- each, in default to undergo rigorous imprisonment for two

months each under Section 427 IPC and they are further sentenced to

undergo rigorous imprisonment for seven years each and also to pay a

fine of Rs.5000/- each, in default to undergo rigorous imprisonment for

two years each under Section 449 IPC and they are also sentenced to

undergo rigorous imprisonment for six months each under Section 143

IPC and further sentenced to undergo rigorous imprisonment for one

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year each under Section 148 IPC and the sentences are directed to run

concurrently.

Other accused, namely, A12, A13, A16 and A17 were convicted

under Sections 143, 147, 148, 307, 323, 449, 427 read with Section 149

IPC. They were sentenced to undergo rigorous imprisonment for 10

years each and also to pay a fine of Rs.,10,000/- each, in default to

undergo rigorous imprisonment for 3 years each under Section 307 IPC

and further sentenced to undergo rigorous imprisonment for six months

each and also to pay a fine of Rs.1000/- each, in default to undergo

rigorous imprisonment for two months each under Section 323 IPC and

further sentenced to undergo rigorous imprisonment for six months each

and also to pay a fine of Rs.1000/- each, in default to undergo rigorous

imprisonment for two months each under Section 427 IPC and further

sentenced to undergo rigorous imprisonment for seven years each, and

also to pay a fine of Rs.5000/- each, in default to undergo rigorous

imprisonment for two years each under Section 449 IPC and further

sentenced to undergo rigorous imprisonment for one year each under

Section 148 IPC and also further sentenced to undergo rigorous

imprisonment or six months each under Section 143 IPC.

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F. Being aggrieved, the appellants preferred the appeals which have

been disposed of by common judgment and order dated 7.4.2005 by

which the High Court modified the order of the trial court to the extent

that conviction of A7, A10 and A11 under Section 302 IPC was set

aside. However, their conviction and sentence for other offences have

been confirmed.

Hence, this appeal.

3. Shri C.N. Sree Kumar, learned counsel appearing for the

appellants, has submitted that courts below erred in making the case of

some of the appellants distinguishable from others as one set of

appellants stood convicted under Sections 302/149 IPC etc. and another

set of appellants has been convicted under Sections 307/149 IPC etc.,

though, under the facts and circumstances of the case, no distinction is

permissible. Even, if the case of some of the appellants has to be

separated from others, the set of appellants who have been convicted

under Section 302/149 IPC would have been convicted under Section

304 - Part I IPC. This was necessary in view of the evidence of the

doctors, who conducted the postmortem examination of Kuttappan

(deceased) and examined other persons. The appellants had not

proceeded with common object to kill any person in as much as to kill

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Kuttappan, thus, provisions of Section 149 IPC are not attracted. From

the facts available on record, inference can be drawn that some of the

appellants had an object to catch hold of Sobhanan (PW.2), however,

there was no intention to kill him. No independent witness has been

examined and all the injured witnesses had been very close to the

deceased. In a case, where a very large number of assailants are there

and the incident is over in a short span of time, it is not possible for the

eye-witnesses to identify all the accused and give detailed description

of participation of each of them. Thus, evidence of the eye-witnesses

cannot be relied upon. The appeal deserves to be allowed.

4. Per contra, Shri M.T. George, learned counsel appearing for the

respondent State, has opposed the appeal, contending that in the facts

and circumstances of the case, provisions of Section 149 IPC have

rightly been applied. The prosecution succeeded in proving its case by

examining five eye-witnesses, out of them four had been injured

witnesses. The medical evidence supports the case of the prosecution.

Thus, the appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

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6. There is enough evidence on record to establish that appellants

were present, armed with sword stick, choppers, knife and iron rods.

Dr. Girish (PW.18) conducted the postmortem on the body of

Kuttappan (deceased) and prepared report (Ex. P-14). According to

which, the following 34 injuries were found on his person:

(1) Incised wound 7x1.5 cm. bone deep sagitally

placed on right side of front of head, 3 c.m. outer to

midline and 4 c.m. above eye brow. Frontal bone

underneath sowed fissured fracture 8.5 c.m. long

extending to margin of coronal suture. Subarachnoid

bleeding present on both sides of brain. Gyri of brain

flattened and sulci narrowed.

(2) Contused abrasion. 0.5 x 0.5 c.m. on left side of

face, 3 cm. in front of ear.

(3) Contused abrasion 7.5 x 0.7 c.m. horizontal, on

right side of front of chest, just ouster to midline and

8.5 c.m. below collar bone.

(4) Multiple small abrasions over an area 3.5 x 1 c.m.

on back of right elbow.

(5) Contused abrasion 6 x 0.5 c.m. oblique on outer

aspect of right forearm 4 c.m. below elbow.

(6) Lacerated wound 0.7 x 0.5 c.m. on the front of right

forearm. 10 c.m. below elbow.

(7) Contused abrasion 16 x 2 c.m. oblique on back of

right forearm 1 c.m. above wrist.

(8) Multiple small contused abrasions over an area

4x2cm on back of right wrist and hand.

(9) Contused abrasion 3x1 cm oblique on the outer

aspect of right elbow.

(10) Contused abrasion 7x2em. Oblique on the outer

aspect of right hip.

(11) Multiple contused abrasions over an area 11 x 4

cm. On the outer aspect of right thigh 7cm. Above

knee.

(12) Contused abrasion 2x1cm on front of right knee.

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(13) Multiple small contused abrasions over an area 10

x 8 cm. On back of right leg 3cm. Below Knee.

(14) Contused abrasion 2.5x1 cm. On front of right leg.

16cm. above ankle.

(15) Contused abrasion 2x1 cm on front of right ankle.

(16) Multiple small contused abrasions over an area

30x7cm. on front of left leg, just below Knee.

(17) Incised punctured wound 5x2x9 cm. oblique on

outer aspect of left leg 2 cm. below Knee. Upper back

end showed splitting of tissues and other end sharply

cut. The wound was directed downwards.

(18) Contused abrasion 5.5x1cm. oblique on outer

aspect of left Knee.

(19) Multiple small contused abrasions over an area

20x16 cm. on the front of left thigh and Knee.

(20) Incised punctured wound 3.5 x 1 x 7.5 cm. oblique

on outer aspect of left hip. Upper back end was blunt

and other end sharply cut. The wound was directed

downwards.

(21) Abrasion 2 x 1 cm. on the outer aspect of left hip,

2 cm. above injury No.20.

(22) Incised punctured wound 3.5x1.5 x 1 cm. oblique

over left buttock. The upper inner end was blunt and

other end sharp. The wound was directed forwards.

(23) Incised wound 1.5 x O.3xO.5 cm. over left

buttock, 2 cm. below injury No.2.

(24) Contused abrasion 11x2 cm. oblique on right side

of back of trunk 10 cm. below tip of shoulder blade.

(25) Contused abrasion 2.5x1 cm. oblique on right side

of back of trunk, 2 cm. outer to midline and 5 cm.

above lilac crest.

(26) Multiple contused abrasions over an area 24 x 11

cm. on left side of chest 8 cm. below armpit. 8th and

9th ribs underneath showed fracture at their outer

angles.

(27) Incised punctured wound 2x0.5 cm. on left side of

back of trunk. Inner upper blunt end being 4 cm. below

tip of shoulder blade.

(28) Contused abrasion 1x0.5 cm. on back of left hand,

just above root of middle finger.

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(29) Incised wound 4 x 1 x 0.5 cm. oblique on back of

left wrist.

(30) Incised wound 3x1xO.5 cm. oblique on back of

left forearm 15 cm. below elbow.

(31)Multiple small abrasions over an area 13x4 cm. on

the front of left forearm just below elbow.

(32)Multiple contused abrasions over an area 25x10

cm. on back of left arm, just above elbow.

(33)Abrasion 5x3 cm. on top of left shoulder.

(34)Abrasion 5 x 3 cm. on the tip of penis.

In the opinion of Dr. Girish (PW.18), the injuries were caused

with the weapons recovered from the appellants and Kuttappan died of

head injury i.e. injury no. 1. as it was sufficient to cause death.

7. Babu (PW.1) was examined by Dr. C.P. Venugopal (PW.20) and

following injuries were found on his person:

(1) Cut injury 10 c.m. x 3 x 1 c.m. on the left thigh

- posterior aspect.

(2) Lacerated injury 6 x 2 x 1.5 c.m. on the back of

scalp left side bleeding.

8. Sobhanan (PW.2) son of the deceased was examined by Dr. P.R.

Anil Kumar (PW.21) and following injuries were found on his person:

(1) A cut injury in the right elbow.

(2) Lacerated wound frontal to occipital areas of the scalp

approximately 20 cm length.

(3) Cut injury on the right thigh and right leg.

(4) Lacerated injury in the left ear.

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(5) Lacerated injury on the left forearm, right palm and right forearm

and right elbow.

(6) Lacerated injury on the right thigh.

(7) Punctured wound in the right thigh and right leg.

(8) Abrasions left and right shoulder.

(9) Swelling left cheek.

(10)Fracture mandible left side. Comminuted fracture left lateral

malleious.

(11)Comminuted fracture fibular neck.

(12)Fracture lateral condyle left."

According to the opinion of Dr. P.R. Anil Kumar (PW.21),

Sobhanan (PW.2) suffered very serious injuries of grave nature and had

a very narrow escape from death.

9. In this factual scenario, Mr. C.N. Sree Kumar has mainly argued

on the application of the provisions of Section 149 IPC, contending that

all the appellant did not have common object to cause death of

Kuttappan (deceased) and as the seventeen persons had been involved,

it was not possible for the alleged eye-witnesses to give minute detail

about their respective overt act. More so, Sobhanan (PW.2) had

become unconscious after being beaten and regained conscious after

two days, thus, it was not possible for him to see the incident regarding

the death of his father Kuttuppan.

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The issue raised hereinabove alongwith other issues particularly

that all the witnesses were partisan and no independent witness was

examined; there was no light on the spot, therefore, the witnesses could

not see the incident properly, recovery effected was not proved

properly; identification of arms was far from satisfaction; there was

lack of credibility of the version of the prosecution and minor

contradictions in their statements have been properly considered by the

courts below and those factual issues do not require any further

appreciation.

SECTION 149 IPC: Scope and Object

10. Section 149 IPC has essentially two ingredients viz. (i) offence

committed by any member of an unlawful assembly consisting five or

more members and (ii) such offence must be committed in prosecution

of the common object (under Section 141 IPC) of the assembly or

members of that assembly knew to be likely to be committed in

prosecution of the common object.

11. For "common object", it is not necessary that there should be a

prior concert in the sense of a meeting of the members of the unlawful

assembly, the common object may form on spur of the moment; it is

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enough if it is adopted by all the members and is shared by all of them.

In order that the case may fall under the first part the offence

committed must be connected immediately with the common object of

the unlawful assembly of which the accused were members. [Vide:

Bhanwar Singh & Ors. v. State of M.P., (2008) 16 SCC 657]

12. Even if the offence committed is not in direct prosecution of the

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

Section 149 IPC if it can be held that the offence was such as the

members knew was likely to be committed. The expression 'know' does

not mean a mere possibility, such as might or might not happen. For

instance, it is a matter of common knowledge that if a body of persons

go armed to take forcible possession of the land, it would be right to

say that someone is likely to be killed and all the members of the

unlawful assembly must be aware of that likelihood and would be

guilty under the second part of Section 149 IPC.

13. There may be cases which would come within the second part,

but not within the first. The distinction between the two parts of

Section 149 IPC cannot be ignored or obliterated. [See : Mizaji & Anr.

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v. State of U.P., AIR 1959 SC 572; and Gangadhar Behera & Ors. v.

State of Orissa, AIR 2002 SC 3633].

14. However, once it is established that the unlawful assembly had

common object, it is not necessary that all persons forming the

unlawful assembly must be shown to have committed some overt act.

For the purpose of incurring the vicarious liability under the provision,

the liability of other members of the unlawful assembly for the offence

committed during the continuance of the occurrence, rests upon the fact

whether the other members knew before hand that the offence actually

committed was likely to be committed in prosecution of the common

object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81;

Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis

Daw v. State of W.B., (2010) 9 SCC 111].

15. The crucial question for determination in such a case is whether

the assembly consisted of five or more persons and whether the said

persons entertained one or more of the common objects specified by

Section 141. While determining this question, it becomes relevant to

consider whether the assembly consisted of some persons which were

merely passive witnesses and had joined the assembly as a matter of

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idle curiosity without intending to entertain the common object of the

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

202)

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

this Court observed that mere presence or association with other

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

criminally liable for the offences committed by the others unless there

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

the likelihood of commission of such an offending act.

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

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

established it is not incumbent on the prosecution to establish whether

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

membership of the unlawful assembly is sufficient and every member

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

either in prosecution of common object or members of assembly knew

were likely to be committed.

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

this Court opined that for a member of unlawful assembly having

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

active participation and the presence of all the accused persons was

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

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

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

achieve the common object makes such a person vicariously liable for

the acts of the unlawful assembly.

19. Regarding the application of Section 149, the following

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

are very relevant:

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

whether the assembly consisted of five or more

persons and whether the said persons entertained

one or more of the common objects, as specified

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

purpose or design and, in order to make it

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

words, the object should be common to the

persons, who compose the assembly, that is to

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

it. A common object may be formed by express

agreement after mutual consultation, but that is

by no means necessary. It may be formed at any

stage by all or a few members of the assembly

and the other members may just join and adopt it.

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

It may be modified or altered or abandoned at

any stage. The expression `in prosecution of

common object' as appearing in Section 149 has

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to be strictly construed as equivalent to `in order

to attain the common object'. It must be

immediately connected with the common object

by virtue of the nature of the object. There must

be community of object and the object may exist

only up to a particular stage, and not

thereafter...."

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

SCC 657, this Court held:

"Hence, the common object of the unlawful

assembly in question depends firstly on whether

such object can be classified as one of those

described in Section 141 IPC. Secondly, such

common object need not be the product of prior

concert but, as per established law, may form on

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

of Rajasthan AIR 1956 SC 513). Finally, the

nature of this common object is a question of fact

to be determined by considering nature of arms,

nature of the assembly, behaviour of the

members, etc. (see also Rachamreddi Chenna

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

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

judgments that where general allegations are made against a large

number of persons the court would categorically scrutinise the

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

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

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

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

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

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

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

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

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

be developed at the time of incident.

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

following conclusion:

"Further the manner in which the injuries were

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

and 5 will go to show that the intention of accused

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

with a common object to killing him. Further it

was also brought out in the evidence of these

witnesses that all the accused persons namely 1 to

17 were holding dangerous weapons in their

hands. Further it cannot be said that any of the

accused persons have not involved in committing

the offence and it cannot also be said that they

were not aware of the consequences of their act or

result of the act that is likely to be resulted on

account of the overt act committed by any one of

the member of that assembly. Similarly, the

evidence of PW3 will go to show that all these

accused persons have criminally trespassed into

her house and committed the crime. It is also

brought out in evidence that 17th accused

Sisupalan had beaten on her chest with hand and

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also Ext. 3 scene mahazar will go to show that on

account of the act of accused Nos. 1, 8, 12 and 5

the western door of the house has been broken

open and caused damage to the same. Further

some of the vessels also damaged in the incident

which is spoken to by PW3 and that is also evident

from the broken piece of wooden reaper with bold

(M.O.10) and also the steel vessel (M.O.16) will

go to show that damage has been caused to the

building of PW3 and also damage to the vessel. It

is also brought out in the evidence of PW3 that the

food articles were also damaged in the incident.

So it cannot be said that the accused persons who

are the members of the assembly do not know

about the consequence of their act. So it can be

safely concluded that accused Nos. 1 to 17 have

formed themselves into an unlawful assembly for

the purpose of rioting with deadly weapons and

also with the common object of causing murder of

PW2 Sobhanan, attacked him with deadly

weapons in their hands and also for the purpose of

committing the crime, they criminally trespassed

into the house of PW3 and also caused simple

injury to her and caused damage to her house and

also the food articles in the house and thereby all

the accused persons name accused Nos. 1 to 17

have committed the offences punishable under

Sections 143, 147, 148, 323, 307, 449 and 427

read with Section 149 IPC."

23. The High Court dealt with this issue and held as under:

"The accused persons armed with weapons were

waiting in the house of accused No. 1 for return of

PW2 to his house through the usual pathway after

attending the temple festival. Even when he tried to

escape by entering into the house of PW3, they

followed, chased and inflicted serious injuries on

him at the house of PW3. It is true that he luckily

saved his life. But, when his father and PW1 came

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hearing the cry, they were also assaulted and father

of PW2 was murdered. Yet, the Sessions Court

convicted for murder of the deceased only of the

persons participated in that act which was proved by

evidence. Others, namely, Accused Nos.12, 13, 16

and 17 were convicted only for offences under

Sections 143, 147, 148, 323, 307, 449 and 427 IPC

read with Section 149 IPC. It was deposed that A18

was unarmed and no witness has stated his role.

Therefore he was acquitted. Considering the

evidence in this case, the Sessions Court found that

accused Nos.1 to 17 armed with weapons, formed an

unlawful assembly with a common object of

attacking PW2 and also they trespassed into the

house of PW3 and brutally attacked PW2. Even

though he suffered serious injuries, he escaped from

death by luck. Common object can develop during

the course of incident at the spot.......... The Sessions

court found that even though common object of the

assembly was originally to attack PW2, when

hearing the cry PW1 and the deceased arrived, they

were attacked by some of the persons in the group

which attacked PW2. All of them may not have

shared the common object of murdering the

deceased. The Sessions Court found that since

Accused Nos.12, 13 and 16 were not attributed to

have caused injury on the deceased, they cannot be

held guilty under Section 302 IPC red with Section

149 IPC as it cannot be positively inferred that they

shared the common intention with the others to

murder the deceased. We are of the opinion that

A10 and A11 only attacked PW1 and their

involvement with regard to the deceased is equal to

accused Nos. 12 and 13. Similarly, A7 also can be

compared with A12 and 13 as it is not proved

beyond doubt that they shared the common object to

inflict injuries on the deceased."

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24. It is evident from the above that the trial court as well as the

High Court have proceeded in correct perspective and applied the

provisions of Section 149 IPC correctly. The facts have properly been

analysed and appreciated. In the instant case, seventeen accused

gathered at the residence of Sudhakaran (A.1) and waited for the

appropriate time knowing it well that Sobhanan (PW.2) would return

from the temple. Immediately, after seeing him, Sudhakaran (A.1)

shouted "chase him, chase him". In order to save his life, he ran away

and entered into "Sophia Bhawan". However, before he could enter

the house, he was inflicted injury by Sudhakaran (A.1) with the sword

stick. Sobhanan (PW.2) succeeded in entering the house and closing

the door from inside. The accused/appellants broke open the door and

caused injuries of very serious nature to Sobhanan (PW.2) and left him

under the impression that he had died. The accused were having one

sword stick, two choppers, one knife and twelve iron rods. All these

weapons were used by the appellants for committing the offences and

causing injuries to their victims. Kuttappan (deceased) received as

many as 34 injuries. In view thereof, if all the circumstances are taken

into consideration, it cannot be held that the appellants had not

participated to prosecute a `common object'. Even if it was not so, it

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had developed at the time of incident. In view thereof, submission

made by the learned counsel for the appellants in respect of

applicability of Section 149 IPC is not worth consideration.

25. We do not find any force in the submission made by the learned

counsel for the appellants that as the number of accused had been

seventeen and the incident was over within a very short time, it was not

possible for witnesses to give as detailed description as has been given

in this case, and there had been several contradiction therein, therefore,

their evidence is not reliable. In such a case even if minor

contradictions appeared in the evidence of witnesses, it is to be ignored

for the reason that it is natural that exact version of the incident

revealing any minute detail i.e. meticulous exactitude of individual acts

cannot be expected from the eye-witnesses. (See: Abdul Sayeed v.

State of Madhya Pradesh, (2010) 10 SCC 259).

In this case all the accused were very well known to the

witnesses. So their identification etc. has not been in issue. As their

participation being governed by second part of Section 149 IPC, overt

act of an individual lost significance.

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26. However, the courts below have made distinction in two sets of

the accused/appellants and that attained finality as the State did not

prefer any appeal against the same. All appellants in the second set

have been convicted for the offence punishable under Sections 307/149

IPC etc. and awarded sentence of 10 years rigorous imprisonment.

These appellants have submitted the certificates of service of sentence

rendered by them. According to the said certificate, these appellants

have served 4-1/2 years to 8 years. All of them have been granted bail

by this Court vide order dated 9.12.2009. In the facts and

circumstances of the case, their conviction is upheld, however, the

sentence is reduced as undergone. Their bail bonds are discharged.

Appeal of the other appellants stands dismissed.

Subject to the above modification, the appeal stands disposed of.

............................J.

(P. SATHASIVAM)

...........................J.

New Delhi, (Dr. B.S. CHAUHAN)

September 2, 2011

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