Shaji & Ors vs State Of Kerala

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

Versus

State of Kerala .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

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

dated 08.04.2005 passed by the Division Bench of the High

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

2004 whereby the High Court dismissed the appeal of the

appellants herein and confirmed their conviction and sentence

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

Section 149 of Indian Penal Code (hereinafter referred to as

"IPC") passed by the trial Court.

1 2) Brief facts:

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

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

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

Kodakassery Oil Mill at Mannambatta during the relevant

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

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

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

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

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

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

brother-in-law of A-1.

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

(Shaji, Devarajan, Haridas, Kannan @ Gopalakrishnan,

Latheef and Unnikrishnan) formed themselves into an

unlawful assembly came in a van armed with deadly weapons

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

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

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

Mannambatta. All the accused persons attacked him and

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

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

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

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

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

who came there, took Usman @ Haneefa to the nearest

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

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

the police registered a crime against Shaji and five other

unnamed persons. During the investigation, the identities of

other accused persons were also revealed. After the

completion of investigation, the Circle Inspector of Police,

Cherpulassery filed the charge-sheet against all the six

accused persons before the Court.

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

17 witnesses and other relevant materials passed an order

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

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

read with Section 149 of IPC and sentenced them to undergo

rigorous imprisonment for six months under Section 143, for

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

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

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

default sentence under Section 302 read with Section 149 IPC

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

awarded under Section 147 IPC.

(d) Challenging the judgment of the Additional Sessions

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

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

Bench of the High Court, by impugned order dated

08.04.2005, dismissed the appeal and confirmed their

conviction and sentence passed by the trial Court. Aggrieved

by the said judgment, the appellants preferred this appeal by

way of special leave before this Court.

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

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

respondent-State.

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

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

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

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

before the date of expiry of his life imprisonment by executing

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

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

taken on record.

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

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

submitted that the trial Court and the High Court committed

an error in convicting these appellants under Section 302 by

applying the provision of Section 149 IPC particularly, when

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

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

were acquitted by the trial Court and the assembly must be

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

cannot be regarded as an unlawful assembly in terms of

Section 141 IPC.

6) Insofar as the second submission of the learned counsel

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

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

were convicted under Section 302 read with Section 149 IPC.

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

counsel appearing for the respondent-State, by drawing our

attention to the judgment of the Constitution Bench in Mohan

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

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

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

necessary that five or more persons must necessarily be

brought before the Court and convicted. The following

principles laid down by the Constitution Bench are relevant for

our consideration:

"8. The true legal position in regard to the essential

ingredients of an offence specified by Section 149 are not in

doubt. Section 149 prescribes for vicarious or constructive

criminal liability for all members of an unlawful assembly

where an offence is committed by any member of such an

unlawful assembly in prosecution of the common object of

that assembly or such as the members of that assembly

knew to be likely to be committed in prosecution of that

object. It would thus be noticed that one of the essential

ingredients of Section 149 is that the offence must have been

committed by any member of an unlawful assembly, and

Section 141 makes it clear that it is only where five or more

persons constituted an assembly that an unlawful assembly

is born, provided, of course, the other requirements of the

said section as to the common object of the persons

composing that assembly are satisfied. In other words, it is

an essential condition of an unlawful assembly that its

membership must be five or more. The argument, therefore,

is that as soon as the two Piara Singhs were acquitted, the

membership of the assembly was reduced from five to three

and that made Section 141 inapplicable which inevitably

leads to the result that Section 149 cannot be invoked

against the appellants. In our opinion, on the facts of this

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case, this argument has to be upheld. We have already

observed that the point raised by the appellants has to be

dealt with on the assumption that only five persons were

named in the charge as persons composing the unlawful

assembly and evidence led in the course of the trial is

confined only to the said five persons. If that be so, as soon

as two of the five named persons are acquitted, the assembly

must be deemed to have been composed of only three

persons and that clearly cannot be regarded as an unlawful

assembly.

9. In dealing with the question as to the applicability of

Section 149 in such cases, it is necessary to bear in mind

the several categories of cases which come before the

criminal courts for their decision. If five or more persons are

named in the charge as composing an unlawful assembly

and evidence adduced by the prosecution proves that charge

against all of them, that is a very clear case where Section

149 can be invoked. It is, however, not necessary that five or

more persons must be convicted before a charge under

Section 149 can be successfully brought home to any

members of the unlawful assembly. It may be that less than

five persons may be charged and convicted under Section

302/149 if the charge is that the persons before the Court

along with others named constituted an unlawful assembly;

the other persons so named may not be available for trial

along with their companions for the reason, for instance,

that they have absconded. In such a case, the fact that less

than five persons are before the Court does not make Section

149 inapplicable for the simple reason that both the charge

and the evidence seek to prove that the persons before the

Court and others number more than five in all and as such,

they together constitute an unlawful assembly. Therefore, in

order to bring home a charge under Section 149 it is not

necessary that five or more persons must necessarily be

brought before the court and convicted........"

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

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

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

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were members of the unlawful assembly, the conviction under

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

9) Now let us consider whether the prosecution has

established the conviction of the remaining accused-appellants

under Sections 302/149 IPC?

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

refer Section 149 IPC which reads as under:

"149. Every member of unlawful assembly guilty of

offence committed in prosecution of common object.--If

an offence is committed by any member of an unlawful

assembly in prosecution of the common object of that

assembly, or such as the members of that assembly knew to

be likely to be committed in prosecution of that object, every

person who, at the time of the committing of that offence, is

a member of the same assembly, is guilty of that offence."

11) While considering the applicability of necessary ingredients

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

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

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

paragraph 26 of the judgment as under:

"26) The above provision makes it clear that before

convicting accused with the aid of Section 149 IPC, the

Court must give clear finding regarding nature of common

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

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

persons, mere fact that they were armed would not be

sufficient to prove common object. Section 149 creates a

specific offence and deals with punishment of that offence.

Whenever the court convicts any person or persons of an

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offence with the aid of Section 149, a clear finding regarding

the common object of the assembly must be given and the

evidence discussed must show not only the nature of the

common object but also that the object was unlawful. Before

recording a conviction under Section 149 IPC, essential

ingredients of Section 141 IPC must be established. ............"

The above principles have been reiterated in Bhudeo Mandal

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

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

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

5, Rajendra Shantaram Todankar vs. State of

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

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

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

relevant which reads as under:

"It is not the intention of the legislature in enacting Section

149 to render every member of unlawful assembly liable to

punishment for every offence committed by one or more of

its members. In order to attract Section 149, it must be

shown that the incriminating act was done to accomplish the

common object of unlawful assembly and it must be within

the knowledge of other members as one likely to be

committed in prosecution of the common object. If the

members of the assembly knew or were aware of the

likelihood of a particular offence being committed in

prosecution of the common object, they would be liable for

the same under Section 149 IPC"

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

the prosecution is well within its jurisdiction to establish the

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charge under Section 149 IPC even after the acquittal of two

members of the unlawful assembly, however, in order to

attract Section 149 IPC, it must be shown that the

incriminating act was done to accomplish the common object

of unlawful assembly and it must be within the knowledge of

other members as one likely to be committed in prosecution of

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

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

alleged to have witnessed the occurrence. We have already

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

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

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

though mentioned that he knows all the six accused persons

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

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

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

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

completed within ten minutes. Though he deposed that he

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

that Shaji and others attacked Usman, the said Appachan was

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

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

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

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

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

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

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

Investigation Officer examined as PW-14 had not mentioned

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

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

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

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

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

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

none of these witnesses attributed involvement of other

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

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

Court must give clear finding regarding nature of common

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

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

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persons, mere fact that they were armed would not be

sufficient to prove common object. Inasmuch as Section 149

creates a specific offence and deals with punishment of that

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

Section 149 IPC, a clear finding regarding common object of

the assembly must be available and the evidence discussed

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

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

satisfied that the above-mentioned ingredients have not been

fulfilled or established by the prosecution insofar as the

accused other than A-1.

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

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

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

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

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

satisfied that the trial Court and the High Court committed an

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

Section 302 with the aid of Section 149 IPC.

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

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

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

conviction and sentence under Sections 302/149 IPC are set

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

by this Court vide order dated 02.11.2007, their bail bonds

shall stand discharged. The appeal is allowed on the above

terms.

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

(P. SATHASIVAM)

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

(H.L. GOKHALE)

NEW DELHI;

MAY 3, 2011.

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