2003 Supreme(SC) 785

2003(6) Supreme 393
SUPREME COURT OF INDIA
(From Kerala High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Hamlet @ Sasi & Ors. -Appellants
versus
State of Kerala -Respondent
Criminal Appeal Nos. 584-585 of 2002
Decided on 21-8-2003
Counsel for the Parties :
For the Appellants : Sanjay Parikh and Abinash K. Mishra, Advocates.
For the Respondent : John Mathew and K.R. Sasiprabhu, Advocates.

IMPORTANT POINT
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 there is evidence on record to show such accused shared the common intention to commit the crime.

Headnote:(i) Indian Penal Code, 1860-Sections 149 and 302-Unlawful Assembly-Prosecution unable to prove number of members of unlawful assembly to be five or more-Finding of High Court holding A1 to A4 alone as being members of unlawful assembly-Absence of specific finding that there were other members of unlawful assembly-All other accused except A1 to A4 have been acquitted by either trial Court or the High Court-No appeal against their acquittal-Section 149 held not applicable to convict four accused A1 to A4 only-Whether appellants A1 to A4 will be entitled to acquittal of charge u/s 302 IPC also-(No)-Courts can convict them with aid of Section 34 IPC.

       Held : 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. (Para 13)

       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 he 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. (Para 17)

       (ii) Indian Penal Code, 1860-Section 34-Common intention-Assault by about 50 people-A1 to A4 formed a separate group and targeted deceased and PW2-A1 caught hold of deceased by his waist and threw him on ground-Thereafter A1 assaulted deceased by kicking him on various parts of body-A2 to A4 attacked him with iron rods and oars-A1 to A4 shared common intention-Section 34 held applicable.

       Held : 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 threw 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. (Para 17)

       (iii) Indian Penal Code, 1860-Sections 324/34, 326 and 302-Common intention to cause hurt-Assault by A1 to A4-None of these accused used any deadly weapon carried by them on any vital part of body-Injury No. 4 which led to death of deceased was caused by fall caused by A1-A1 kicked deceased after the fall-A2 to A4 used iron rods and oars to hit deceased on his limbs only-Appellants did share a common intention but only to cause grievous hurt to deceased and not to cause his death-High Court was wrong in convicting appellants for offence u/s 302/149 IPC-Appellants held guilty of causing grievous hurt by dangerous weapons punishable u/s 326/34 IPC.

       Held : 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. (Paras 19 & 20)