IMPORTANT POINTS
Mere presence in the unlawful assembly may vicariously fasten criminal liability u/s 149.
In absence of any evidence to contrary, mere participation of an accused in unlawful assembly would be inculpatory.

Headnote:Per L. NAGESWARA RAO, J.
       (a) Criminal trial – Appreciation of evidence – PW 4 recorded as witness in the complaint itself – Statement of PW 4 recorded by Magistrate u/s 202 CrPC – High Court recording a finding that the evidence of PW4 cannot be rejected only on the ground that he was not questioned by the police – It then held that evidence of PW4 can be used only for corroboration of PW3’s evidence – No reason given – Not sustainable – Trial court rightly believed testimony of PW 4. (Para 11)
       (b) Indian Penal Code 1860 – Section 149 – Common object – Can be gathered from the nature of the assembly, arms used and 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 – Mere presence in the unlawful assembly may vicariously fasten criminal liability u/s 149. (Para 12)
       (1989) 1 SCC 437; (1997) 3 SCC 747 – Relied upon
       Per S. A. BOBDE, J.
       (c) Indian Penal Code, 1860 – Section 149 – Accused present in unlawful assembly – No overt act attributed – No evidence of accused not harbouring same intention as that of unlawful assembly – Not being an onlooker or bystander – Suggestive of his participation in object of the assembly – Participated and going along with others attracts inference of his act being inculpatory or exculpatory – In absence of any evidence to contrary, mere participation of an accused in unlawful assembly would be inculpatory – A4 held liable u/s 326/149. (Para 1, 2, 5)
       Facts of the case:
       The Sessions Court, Thrissur convicted A1 to A4, A14, A15, and A18 under Section 302 read with 149 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. 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.
       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.
       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.
       Findings of the Court:
       Result: Criminal Appeal No. 661 of 2006 dismissed. Criminal Appeal No. 400 of 2006 and 141 of 2007 allowed.

JUDGMENT

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 1st 01.04.1994 before the Judicial Magistrate 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 prosecuti

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2017 Supreme(SC) 295

IMPORTANT POINTSMere presence in the unlawful assembly may vicariously fasten criminal liability u/s 149. In absence of any evidence to contrary, mere participation of an accused in unlawful assembly would be inculpatory.

Cases Referred (2)

IMPORTANT POINTS
Mere presence in the unlawful assembly may vicariously fasten criminal liability u/s 149.
In absence of any evidence to contrary, mere participation of an accused in unlawful assembly would be inculpatory.