whether A3, A4, A14, A15 and A18 are liable to be convicted under Section 302/149 IPC. Taking into account the fact that the incident occurred in the year 1993, that they attacked the deceased with sticks causing simple injuries on non-vital parts, their conviction under Section 326/149 IPC will meet the ends of justice. The Trial Court convicted A4 under Section 324/149 IPC and sentenced for imprisonment for 2 years along with his conviction under Section 302/149 IPC. The High Court acquitted A4 under Section 302/149 IPC and reduced the sentence under Section 324/149 IPC to 1 year. A4 was separated from A3, A14, A15 and A18 only on the ground that PW3 spoke about his presence. Otherwise, the role ascribed to A4 is the same as that of A3, A14, A15 and A18. In the result A3 Majeed, A4 Ummer alias Podi Ummer, A14 Balaji, A15 Muraleedharan and A18 Hasheem alias Muhammed Hasheem are sentenced to 7 years imprisonment under Section 326/149 IPC.

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.400 of 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

…. Appellant(s)
Versus
MAJEED & ORS. ….Respondent(s)
With

CRIMINAL APPEAL No.661 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

…. Appellant(s)
Versus
SIDDIK & ORS. ….Respondent(s)

And

CRIMINAL APPEAL No.141 OF 2007

STATE OF KERALA ….
Appellant(s)
Versus

ABOOBACKER @ ARABI ABOOBACKER & ORS.
….Respondent(s)

J U D G M E N T
L. NAGESWARA RAO, J.
The Sessions Court, Thrissur convicted A1 to A4, A14, A15, and A18
under Section 302 read with 149 Indian Penal Code, 1860 (hereinafter
referred to as the ‘IPC’) and sentenced them to imprisonment for life.
They were also convicted for offences under Section 143, 147, 148, 341, 342
and 324/149 IPC. A5 to A13, A16 and A17 were acquitted. A1 to A4, A14, A15
and A18 who were convicted, filed an Appeal before the High Court of
Kerala. The State of Kerala and the complainant (father of the deceased)
also filed appeals against the order of acquittal of A5 to A13, A16 and
A17. By way of abundant caution the complainant also filed a Criminal
Revision challenging the acquittal of the said accused. The judgment of
the Trial Court acquitting A5 to A13, A16 and A17 was confirmed by the High
Court. A1 was convicted under Section 302 and sentenced to imprisonment
for life. A2 and A4 were convicted under Section 324/149 IPC and were
sentenced to imprisonment of 1 year. A3, A14, A15 and A18 were acquitted.
A1 filed an appeal before this Court which abated as he died. The
complainant filed an appeal against the acquittal of A2 to A4, A14, A15 and
A18. He also filed an appeal challenging the acquittal of A5 to A13, A16
and A17. The State of Kerala also assailed the acquittal of A2 to A4, A14,
A15 and A18 by filing an appeal. It is relevant to take note of the fact
that initially 21 persons were named as accused. A21 absconded and A19 and
A20 died during the course of trial. A1, A2, A5 and A12 died during the
pendency of the appeals.
2. The case of the prosecution was that PW-14, a Head Constable attached
to Kunnamkulam Police Station, received a phone call in the evening on
10.03.1993 that there was a fight going on at Ottappilavu centre. He
along with two other police men reached the place of the incident and found
a person lying on the road margin on the western side of the road. As he
was unconscious and was bleeding due to injuries, he was taken to the
Government hospital, Kunnamkulam for treatment in a police jeep. The
Doctor examined him and declared him dead. As the identity of the
deceased was not known, PW 14 kept the body in the mortuary, went back to
the police station and recorded the details in the General Diary. The
First Information Statement of PW-1 Krishnankutty was recorded at 12:00
midnight on 10.03.1993. He stated that there was a dispute between people
belonging to RSS and CPI (Marxist) party in connection with the festival at
Korattikara Vishnu Bhagwati Temple. He further stated that at about 08:15
pm on 10.03.1993 when he was walking back home and reached Ottappilavu
centre he saw A2 to A5, A13, A19 and A21 along with number of others
attacking Suresh Babu. He also stated that Suresh Babu was stabbed to
death by A13 and others. On the basis of the First Information Statement
FIR No.95 of 1993 was registered at Kunnamkulam Police Station under
Section 143, 147, 148, 341, 324, 302/149 IPC at 12:00 midnight on
10.03.1993 by PW15. Inquest was conducted between 9:45 am to 12:45 pm by
PW15. The Assistant Professor of Forensic Medicine at Medical College,
Thrissur (PW13) conducted the autopsy immediately thereafter. The post-
mortem certificate referred to 26 injuries on the body of the deceased
Suresh Babu and the cause of death was stated as “the deceased died of
multiple injuries sustained to chest”. The FIR was sent to the Magistrate
in the morning on 11.03.1993.
3. Not satisfied with the investigation, Madhavan (PW12), the father of
the deceased filed a private complaint on 01.04.1994 before the Judicial
Magistrate 1st Class, Kunnamkulam. He along with 4 other witnesses was
examined and process was issued to the accused persons. PW4 Chandran was
mentioned as a witness in the complaint. On 08.09.1994, Madhavan submitted
another list of witnesses in which PW5 and PW6 were included. The cases of
the prosecution and the private complainant were consolidated. The
Sessions Court directed the prosecution to submit a schedule of witnesses
which would include the witnesses mentioned in the private complaint also.
The consolidated list of witnesses given by the prosecution included PW4,
PW5 and PW6.
4. After completion of investigation, all the accused were charged for
committing offences under Sections 143, 147, 148, 341, 323 and 302/149
IPC. As stated earlier A19 and A20 died during the course of trial and A21
absconded. The other accused pleaded not guilty and were tried for the
aforementioned offences. There were 16 witnesses examined on behalf of
the prosecution and 3 witnesses by the defence. PW1 Krishnankutty, who was
the informant and PW2 Gopinathan who was an eyewitness turned hostile.
Likewise, PW-8 Sulalman, PW9 Ashraf and PW10 Francis who were attestors to
the scene mahazar and seizure of the weapon also turned hostile. PW11
Kuttikrishan who was the driver of the bus in which the deceased was
travelling also turned hostile.
5. The testimony of PW3 was examined in detail by the Trial Court.
After considering the submissions on behalf of the defence, the Trial Court
held that the evidence of PW3 Subramanian was consistent, cogent and in
conformity with the prosecution case. The Trial Court held that PW4 was
also a credible witness. According to the Trial Court there was no
material contradiction brought out in the evidence of PW5 Balan who was an
eyewitness. PW6 Velayudhan was found to be a doubtful witness and the
Trial Court held that it was not safe to rely on his evidence. The Trial
Court concluded that there was corroboration to the oral testimony of PW3
to PW5 from the medical evidence. The oral evidence showed that A1
stabbed on the left side of the back of the deceased which corresponds to
injury No.24. The other stab injuries inflicted by A1 and A21 as mentioned
by the eyewitness also correspond to the stab injuries in Exh.P-11 (post-
mortem certificate). Injury No.24 had the depth of 7.5 c.m. caused by
knife which entered the left chest cavity through the 5th intercostal
space. It terminated at the upper part of lower lobe of the left lung.
The Doctor opined that this injury was sufficient in the ordinary course of
nature to cause death. The Trial Court held that A1 had a definite
intention to kill the deceased. Considering the fact that the other
accused continued to beat the deceased with sticks even after stabbing by
A1 and A21, the Trial Court held that there was a common object of murder
on the part of the accused. A5 to A13, A16 and A17 were acquitted by the
Trial Court as there was no evidence against them. A1 to A4, A14, A15 and
A18 were convicted under Section 302/149 IPC and sentenced to imprisonment
for life.
6. The appeals filed by the convicted accused, the appeals filed by the
State and the complainant against the acquittal of some accused were taken
up along with the Criminal Revision filed by the complainant against the
acquittal. The High Court discarded the evidence of PW5 and PW6. The High
Court held that PW3 is a trustworthy witness and PW4’s evidence can be used
for corroboration. Placing reliance on the evidence of PW3 and PW4, the
High Court upheld the conviction of A1 under Section 302 IPC. The High
Court also held A2 and A4 guilty of an offence punishable under Section
324/149 IPC by acquitting them of an offence under Section 302/149 IPC.
A3, A14, A15 and A18 were acquitted for offences under Section 302/149 IPC
by the High Court. The acquittal of other accused A5 to A13, A16 and A17
recorded by the Trial Court was confirmed by the High Court. The High
Court referred to the remand report dated 17.03.1993 of the Circle
Inspector in which it was recorded that on 10.03.1993 sympathisers of CPI
(M) were attacked by the followers of BJP at Ottappilavu. In that incident
Moidunny, Ali, Subramannian, Shameer and Kunhikoya sustained serious
injuries and crime No.96 of 1993 in the Kunnamkulam Police Station under
Section 143, 147, 148, 323, 324, 307/149 IPC was registered. There were
three other cases which were registered against the sympathisers of CPI (M)
for incidents that took place at 06:15 pm on the same day. Taking note of
the series of clashes on 10.03.1993, the High Court repelled the submission
of the defence about the unexplained delay in filing of the FIR and the
delay in the FIR reaching the Magistrate only on the next day. The High
Court relying upon the judgments of this Court held that the recovery of
weapon not being proved is not fatal to the prosecution case. The
submission made on behalf of the accused that PW3 and PW4 cannot be
believed on the ground that their conduct was contrary to normal human
behaviour was also rejected on the ground that there cannot be any straight
jacket formula for the reaction of a person who had witnessed a criminal
act. The High Court relied upon the judgments of this Court in which it
was held that human behaviour is unpredictable and there is no set rule of
natural reaction. The defence witnesses were disbelieved by the High
Court. All the accused except A1, A2 and A4 were acquitted of all the
charges against them on the ground that the prosecution was unable to prove
the common object of the unlawful assembly for the murder of Suresh Babu.
7. The complainant filed Criminal Appeal No.400 of 2006 against the
acquittal of A2 to A4, A14, A15 and A18. He also filed Criminal Appeal
No.661 of 2006 assailing the acquittal of A5 to A13, A16 and A17. The
State of Kerala has filed Criminal Appeal No.141 of 2007 challenging the
judgment of the High Court by which A2 to A4, A14, A15 and A18 were
acquitted. A1 also approached this Court by filing an Appeal against his
conviction under Section 302 IPC. However, the said appeal abated in view
of the death of A1. We have heard Mr.Basant R., learned Senior Counsel for
the appellant/ complainant in Criminal Appeal Nos.400 of 2006, Mr. G.
Prakash, Advocate for the State of Kerala in Crl. Appeal No. 141 of 2007
and Mr. Siddharth Luthra, learned Senior Counsel for the accused. Mr.
Basant submitted that the complainant was compelled to file a private
complaint in view of the perfunctory investigation into the murder of
Suresh Babu. He submitted that there was a consolidation of the
prosecution case and the case filed by the complainant under Section 210
Cr.P.C. He further submitted that a consolidated list of witnesses was
prepared. According to the learned Senior Counsel, the High Court
committed a serious error in eschewing the evidence of PW5 from
consideration. He also stated that the evidence of PW4 should have been
relied upon by the High Court instead of using it only for corroborating
the evidence of PW3. He urged that the High Court erred in holding that
the common object of the accused was not proved. He also argued that
admittedly there was a homicide and A1 was convicted for causing the death
of Suresh Babu. The High Court also convicted A2 and A4 for offences
under Sections 143, 147, 148, 324/149 IPC. He submitted that all the
accused are liable for conviction under Section 302/149 IPC especially when
A2 and A4 were convicted under Section 143, 147, 148, 324/149 IPC and A1
convicted under Section 302 IPC. Mr.G.Prakash, Advocate, appearing for the
State of Kerala adopted the submissions made by Mr. Basant.
8. Mr. Siddharth Luthra, learned Senior Counsel appearing for the
accused took us through the evidence of PW4, PW5 and PW6 and submitted that
they are all interested witnesses who deposed at the instance of the
complainant. He submitted that the informant PW1 and another eyewitness
PW2 turned hostile. He stated that the offence took place on a public
road and no independent eyewitnesses were produced by the prosecution to
prove the case. He further submitted that apart from PW4 no other witness
cited in the private complaint was examined. The partisan and interested
testimonies of eye witnesses who belonged to the opposite political party
ought not to have been taken into consideration by the Courts below. He
also commented upon the unnatural behaviour of PW3 and PW4 after the
incident. Mr. Luthra finally submitted that the appeals against acquittal
should not be interfered lightly by this Court. In any event, according to
him, when there are two views possible, the accused should be given the
benefit.
9. As stated earlier, A1, A2, A5 and A12 died during the pendency of the
appeals before this Court. The remaining accused can be categorised into
three groups. The first group consists of A5 to A13, A16 and A17 who were
acquitted both by the Trial Court and the High Court. The second group
consists of A3, A14, A15 and A18 who were convicted by the Trial Court
under Section 302/149 IPC but acquitted by the High Court. A4 forms the
third group whose conviction under Section 302/149 IPC by the Trial Court
was set aside by the High Court. However, he was convicted under Section
324/149 IPC and sentenced for a period of 1 year.
10. PW3, who was an independent witness and was believed by both the
Courts below, gave a vivid description of the incident. He stated that he
was a resident of Ottappilavu and that he was acquainted with the deceased
Suresh Babu who was residing about 1 k.m. away from his house. He deposed
that he went to Kunnamkulam to purchase medicines for his brother who was
unwell. He boarded a stage carriage bus by name Babu bus at Kunnamkulam.
The deceased Suresh Babu was travelling in the same bus. He stated that
when the bus reached Ottappilavu junction, A1, A2, A4 and A5 entered the
bus, pulled Suresh Babu out of the bus and took him to the front side of
the bus and attacked him. He further stated that A1 inflicted a stab
injury on the back of the left side of the chest of Suresh Babu. The
deceased fell down and A1 inflicted two more stab injuries. When the
deceased was struggling to stand up and escape the other accused
indiscriminately beat him with a reaper and sticks. He did not alight
from the bus and continued his travel and got down at Chalissery junction.
He stated that he was questioned by the police after two days. He
identified M.O.1 knife used by A1. PW4 was also an eyewitness to the
incident. He stated that A2 to A4, A10, A13, A14, A15, A18 and A20
attacked the deceased with sticks and a reaper after A1 and A21 inflicted
stab injuries on the deceased. He stated that his house is situated 2/3
k.m. from the house of the deceased and that he also attended the funeral
of Suresh Babu. He was cited as a witness in the private complaint filed
by PW12 (appellant). His statement was recorded by the Magistrate under
Section 202 Cr. P.C. PW6 was disbelieved by the Trial Court as well as by
the High Court. The evidence of PW5 disbelieved by the High Court. The
High Court acquitted A3, A14, A15 and A18 of the charges under Section
302/149 IPC on two grounds. The first ground was that PW3 did not depose
about their presence and it was only PW4 who stated about their
involvement. The second ground was that there is no evidence to show that
the members of the unlawful assembly had a common object to cause the death
of Suresh Babu. Modification of the conviction and sentence of A4 from
Section 302/149 IPC to Section 324/149 IPC was on the ground that A4 who
was a member of the unlawful assembly did not share a common object of
causing the death of Suresh Babu along with A1 and A21.
11. We are of the opinion that the High Court committed a serious error
in not taking into consideration the evidence of PW4. The finding
recorded by the High Court that the evidence of PW4 can be considered only
for the limited purpose of corroboration of evidence of PW3 is unreasonable
and perverse. After recording a finding that the evidence of PW4 cannot
be rejected only on the ground that he was not questioned by the police,
the High Court proceeded to hold that the evidence of PW4 can be used only
for corroboration of PW3’s evidence. Unlike PW5 and PW6 who were cited as
witnesses in the second list of witnesses given by the complainant five
months after filing of the complaint, PW4 was named as a witness in the
complaint. Further, his statement was recorded by the Magistrate under
Section 202 Cr. P.C. There was a consolidated list of witnesses given by
the prosecution. The High Court has not given any reason as to why the
evidence of PW4 can be used only for corroboration. On a careful
examination of the evidence of PW4 we are of the considered opinion that
the Trial Court was right in relying upon his testimony and the High Court
was not correct in holding that it can be used only for corroboration of
PW3’s evidence. The finding of the High Court that A3, A14, A15 and A18
are entitled for acquittal on the basis that PW3 did not speak about their
presence is liable to be set aside as PW4 had categorically mentioned about
their involvement.
12. The High Court held that the accused were not aware that the deceased
was travelling in the bus and there is no evidence to show that they formed
an unlawful assembly with a view to attack and commit his murder. The
High Court referred to the clash between the supporters of CPI (M) and BJP
workers on 10.03.1993. The High Court held that the deceased was attacked
due to political rivalry but there is no evidence to show that the members
of the unlawful assembly had a common object to commit his murder. The
High Court also found that A1 and A21 alone inflicted stab injuries and the
other members of the unlawful assembly who caused injuries on the non vital
parts cannot be said to have shared the common object of causing the death
of Suresh Babu. The common object of the unlawful assembly can be gathered
from the nature of the assembly, arms used by them and the behaviour of the
assembly at or before the scene of occurrence. It is an inference to be
deduced from the fact and circumstances of the case (See Lalji v. State of
U.P., (1989) 1 SCC 437 ¶8). It is also settled law that the mere presence
in the unlawful assembly may vicariously fasten criminal liability under
Section 149 IPC (See. State of UP v. Dan Singh (1997) 3 SCC 747).
13. We are not in agreement with the High Court regarding the absence of
common object of the A3, A4, A14, A15 and A18. The evidence on record
shows that the deceased and accused belong to two political parties opposed
to each other. There were three other incidents of clashes between the
rival groups. The existence of a CPI (M) office at Ottappilavu junction is
proved by a sketch of the site of the incident. The accused along with
others assembled and were searching for BJP workers travelling in the buses
that were passing through the junction. We do not agree with the finding
of the High Court that merely because the accused did not plan to murder
Suresh Babu (deceased), there was no common object. The common object of
the members of the unlawful assembly was to attack any BJP supporter who
was passing through Ottappilavu junction. Unfortunately, Suresh Babu was
in the bus and he was killed in the attack.
14. Justice V. R. Krishna Iyer in Shivaji Sahabrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793 ¶ 6  held as follows:
“The evil of acquitting a guilty person light heartedly as a learned
Author [Glanville Williams in ‘Proof of Guilt’.] has sapiently observed,
goes much beyond the simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general, they tend to lead to a
cynical disregard of the law, and this in turn leads to a public demand for
harsher legal presumptions against indicted “persons” and more severe
punishment of those who are found guilty. Thus, too frequent acquittals of
the guilty may lead to a ferocious penal law, eventually eroding the
judicial protection of the guiltless. For all these reasons it is true to
say, with Viscount Simon, that “a miscarriage of justice may arise from the
acquittal of the guilty no less than from the conviction of the innocent.…”
In short, our jurisprudential enthusiasm for presumed innocence must be
moderated by the pragmatic need to make criminal justice potent and
realistic.”

The point that remains to be considered is whether A3, A4, A14, A15 and A18
are liable to be convicted under Section 302/149 IPC. Taking into account
the fact that the incident occurred in the year 1993, that they attacked
the deceased with sticks causing simple injuries on non-vital parts, their
conviction under Section 326/149 IPC will meet the ends of justice. The
Trial Court convicted A4 under Section 324/149 IPC and sentenced for
imprisonment for 2 years along with his conviction under Section 302/149
IPC. The High Court acquitted A4 under Section 302/149 IPC and reduced the
sentence under Section 324/149 IPC to 1 year. A4 was separated from A3,
A14, A15 and A18 only on the ground that PW3 spoke about his presence.
Otherwise, the role ascribed to A4 is the same as that of A3, A14, A15 and
A18. In the result A3 Majeed, A4 Ummer alias Podi Ummer, A14 Balaji, A15
Muraleedharan and A18 Hasheem alias Muhammed Hasheem are sentenced to 7
years imprisonment under Section 326/149 IPC. They shall surrender within
4 weeks to serve the sentence. Criminal Appeal No. 661 of 2006 filed by
the complainant against the acquittal of A5 Siddik, A6 Asharaf, A7
Sundaran, A8 Rajan, A9 Monutty alias Dharmarajan, A10 Kunhippa, A11
Kunhimon, A13 Sathyan, A16 Shaji Alias Kuttamon and A17 Kurukkal Rassak is
dismissed. Criminal Appeal No. 400 of 2006 and 141 of 2007 filed by the
complainant and State respectively against the acquittal of A3 Majeed, A4
Ummer alias Podi Ummer, A14 Balaji, A15 Muralledharan and A18 Hasheem alias
Muhammed Hasheem are allowed.

..………………………………..J
[S. A. BOBDE]

..………………………………..J
[L. NAGESWARA RAO]

New Delhi,
March 30, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.400 OF 2006
KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.
…APPELLANT(S)

VERSUS
MAJEED & ORS.
…RESPONDENT(S)
WITH

CRIMINAL APPEAL No.661 OF 2006
KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.
…APPELLANT(S)

VERSUS

SIDDIK & ORS.
…RESPONDENT(S)

WITH

CRIMINAL APPEAL No.141 OF 2007
STATE OF KERALA …..APPELLANT(S)

VERSUS
ABOOBACKER @ ARABI ABOOBACKER & ORS.
…RESPONDENT(S)
1
2 JUDGMENT

S. A. BOBDE, J.
I am in complete agreement with my learned brother Nageswara Rao J.
I would, however, like to deal with one submission made at the bar in
relation to the culpability of an accused participating in an unlawful
assembly in general, and that of A4 Ummer alias Podi Ummer in particular.
It has been argued on behalf of A4 that his mere presence in the unlawful
assembly could not be inculpatory since none of the witnesses attributed an
overt act to the accused. Such a submission without any concrete evidence
enabling the Court to infer that the accused did not in fact harbor the
same intention as that of the unlawful assembly, cannot be accepted.
In the first place, the presence of an accused as part of an unlawful
assembly, when not as a curious onlooker or a bystander, suggests his
participation in the object of the assembly. When the prosecution
establishes such presence, then it is the conduct of the accused that would
determine whether he continued to participate in the unlawful assembly with
the intention to fulfill the object of the assembly, or not. It could
well be that an accused had no intention to participate in the object of
the assembly. For example, if the object of the assembly is to murder
someone, it is possible that the accused as a particular member of the
assembly had no knowledge of the intention of the other members whose
object was to murder, unless of course the evidence to the contrary shows
such knowledge. But having participated and gone along with the others, an
inference whether inculpatory or exculpatory can be drawn from the conduct
of such an accused. The following questions arise with regard to the
conduct of such an accused:-
What was the point of time at which he discovered that the assembly
intended to kill the victim?
Having discovered that, did he make any attempt to stop the assembly from
pursuing the object?
If he did, and failed, did he dissociate himself from the assembly by
getting away?
The answer to these questions would determine whether an accused
shared the common object in the assembly. Without evidence that the
accused had no knowledge of the unlawful object of the assembly or without
evidence that after having gained knowledge, he attempted to prevent the
assembly from accomplishing the unlawful object, and without evidence that
after having failed to do so, the accused disassociated himself from the
assembly, the mere participation of an accused in such an assembly would be
inculpatory.
In the case of A4, there is no such evidence on record that having
participated in the unlawful assembly which resulted in the death of Suresh
Babu, he made any attempt to either stop the incident from taking place, or
having found out that he could not prevent it, dissociated himself from the
assembly.
Therefore, he must be held liable under Section 326/149 of the Indian
Penal Code.

…………………………J.
[ S.A. BOBDE ]
NEW DELHI,
MARCH 30, 2017