Shaji & Ors. Vs. State
J U D G M E N T
P. Sathasivam, J.
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.
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
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 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 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
Mr. T.N. Singh, learned counsel for the appellants and Mr. T.S.R. Venkata Ramana,
learned counsel for the respondent-State.
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 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.
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.
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.
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 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........"
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 were members of the unlawful assembly, the conviction
under Section 302 can be based with the aid of Section 149.
let us consider whether the prosecution has established the conviction of the
remaining accused-appellants under Sections 302/149 IPC?
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
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 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.
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"
as per the decision of the Constitution Bench, the prosecution is well within its
jurisdiction to establish the 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 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 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.
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.
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