Kerala High Court
Suresh @ Karatte Suresh vs State Of Kerala on 19 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942
CRL.A.No.1061 OF 2015
AGAINST THE JUDGMENT IN S.C.No.664/2013 DATED 07-10-2015
OF THE COURT OF THE ADDL. SESSIONS JUDGE-I, THIRUVANANTHAPURAM.
(CRIME NO.51/2007 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM)
APPELLANT/ 5TH ACCUSED:
SURESH @ KARATTE SURESH, AGED 39 YEARS,
S/O.SREENIVASAN, THEKKEVILAKATHU VEED,
NEAR STATION KADAVU, RAILWAY GATE, ATTIPRA,
ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.K.VARGHESE
SRI. KIRAN J.NARAYANAN
SRI.P.P.BIJU
SRI.P.M.RAFIQ
SRI.V.C.SARATH
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRUTHY N. BHAT
SHRI.ABEL TOM BENNY.
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.NICHOLAS JOSEPH, SPECIAL GOVT. PLEADER (CRIMINAL).
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021,
ALONG WITH CRL.A.No.1068/2015, THE COURT ON 19-03-2021 DELIVERED
THE FOLLOWING:
Crl.A.Nos.1061 & - 2 -
1068 of 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942
CRL.A.No.1068 OF 2015
AGAINST THE JUDGMENT IN S.C.No.664/2013 DATED 07-10-2015
OF THE COURT OF THE ADDL. SESSIONS JUDGE-I, THIRUVANANTHAPURAM.
(CRIME NO.51/2007 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM)
APPELLANT/ 2ND ACCUSED:
SHIBU @ PEELI SHIBU, AGED 38 YEARS, S/O.SIVANANDAN,
MANARCATTUVILAKOM VEEDU, SANTHI NAGAR,
ATTIPRA MURI, ATTIPRA VILLAGE,
THIRUVANANTHPAURAM 695 029.
BY ADVS.
SRI.SHABU SREEDHARAN
SRI.T.S.PRASANNAKUMAR
SRI.K.V.PREMSANKAR
SMT.RESHMA ABDUL RASHEED
SRI.P.R.VIBHU.
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY SRI.NICHOLAS JOSEPH, SPECIAL GOVT.PLEADER (CRIMINAL).
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-03-2021, ALONG WITH CRL.A.1061/2015, THE COURT ON 19-03-2021
DELIVERED THE FOLLOWING:
Crl.A.Nos.1061 & - 3 -
1068 of 2015
K. Vinod Chandran & M.R. Anitha, JJ.
-------------------------------------
Crl.A.Nos.1061 & 1068 of 2015
-------------------------------------
Dated, this the 19th day of March, 2021
JUDGMENT
Vinod Chandran, J.
Internecine gang wars lead to mindless
killing, a classic example of which is the instant
case. One Krishna Kumar a person involved in a number
of cases was targeted and killed in the incident from
which the aforesaid appeals arise. Altogether eleven
accused were arrayed in Crime No.51/2007 of Pettah
Police Station. Due to some of the accused absconding,
A3 and A6 to A11 faced trial in S.C.No.1540/2009
wherein A8 was acquitted and others convicted. In
appeal A9 and A10 were acquitted and conviction of A3,
A6, A7 and A11 were confirmed. A2 and A5 having been
apprehended, they stood trial in S.C.No.664/2013 in
which both were convicted. The appeals arise from the
said order of conviction. The case against A1 A4 and
A12 were split up and refiled which is still pending.
2. A2 was sentenced to RI for six months under
S.143, RI for three years and fine of Rs.5000/- under
S.148, RI for two years under S. 324, RI for life and
fine of Rs.2,00,000/- under S. 302 all read with S.149
IPC, RI for 5 years under S.3 and 5 years under S.5 of
the Explosive Substances Act and RI for 3 years and
fine of Rs.10,000/- under S.27 of the Arms Act and
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appropriate default sentences. A5 was sentenced to
undergo RI for life and fine of Rs.2,00,000/- under
S.120(B) r/w S.302 IPC, RI for six months under S.143,
RI for one year under S.147 and RI for life and pay
fine of Rs.2,00,000/- under S. 302 all read with r/w
S.149 IPC and appropriate default sentences.
3. The prosecution case is that on 20.02.2007
the deceased along with four others were returning
after appearing before the JFCM Court-II. They were
traveling in an Indica car which was waylaid by a
Scorpio in which the accused were traveling. The
accused on emerging from the car, hurled bombs at the
Indica car forcing the passengers out; who ran for
their lives seeing the assailants take out weapons and
one of them shouting to hack everyone to death. The
deceased was followed by some of the accused, one of
whom was A2 and hacked to death with a sword carried by
one and choppers carried by other assailants, including
A2. PW-2 who was driving the Indica car and PW-1 a
passenger in the said car suffered injuries in the
incident and accompanied the deceased to the hospital
in a police vehicle which fortunately came by. PW-3 yet
another passenger of the Indica car ran across the road
and on turning around, to see if he was followed saw A5
sitting in the driving seat of the Scorpio car.
4. Sri.P.Vijayabhanu, learned Senior Counsel
appeared for A5 and Sri.Shabu Sreedharan for A2. It was
argued for A2 that in evidence it has come out that the
vehicle belongs to PW-10 who alleged that A2 had
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attacked him earlier. PW-10 was a friend of the
deceased and so were PWs.1 to 3. The implication of A2
was a plot hatched by the friends of the deceased. MO-2
is said to have been recovered on the confession
statement of A2, on which no blood stains were noticed
at the time of recovery either in Ext.P10 mahazar or by
PW-12 witness of recovery. PW-33 the scientific officer
however indicated in his FSL report that there were
blood stains in the weapon which raises suspicion
regarding the recovery itself. On behalf of A5 it was
contended that the only evidence is that of PW-3. His
version that while he was running for life, he looked
back and saw A5 sitting in the car is far fetched and
improbable. Further it is pointed out that in the
earlier trial carried out in S.C.No.1540/2009 PW-3
denied his presence at the time of the incident. It was
his specific contention that the police had forced him
to give a statement under S.164 before the Magistrate.
The learned Senior Counsel relied on 1976 (1) SCC 31
[Karuppanna Thevar v. State of TN] to urge that Court
should be slow to act on the testimony of witnesses who
constantly prevaricate and reliance on such testimony
can only be when there is corroboration. In the instant
case there is nothing to corroborate the testimony of
PW-3 and the recovery said to have been made of a bag
from where the key of the Scorpio was recovered was
not proved and is highly suspicious. The Senior Counsel
relies on (1980) 1 SCC 490 [Mahadeo v. State of
Maharashtra], (2012) 8 SCC 21 [Rai Sandeep @ Deepu and
1068 of 2015
another v. State of NCT of Delhi], (2006) 12 SCC 76
[Bhimapa Chandappa Hosamani and others v. State of
Karnataka] (1964) 4 SCC 589 [Sharnappa Mutyappa Halke
v. State of Maharashtra], (2003) 11 SCC 231 Sadhu Ram
and another v. State of Rajasthan]. On the precedents
it is argued that conviction on solitary evidence of a
witness can be only when the Court is satisfied about
the sterling quality of the witness and is convinced
that the evidence is absolutely true and reliable,
failing which corroboration is essential.
5. Sri.Nicholas Joseph points out the various
incriminating circumstances against A2 and A5 of which
the most important is the direct testimony of PWs.1
to 3. There is also recovery on the basis of the
confession statement by A2 which connects him with the
crime. PWs.1 & 2 have identified A2 and PW-3 identified
A5. The weapon used by A2 is also identified by
PWs.1&2. As against A2, Ext.P1 the FIS and Ext.P33
report of treatment of PW-1 are contemporaneous
documents leaving no scope of embellishment since the
FIS was given within half an hour of the incident and
the medical examination carried out on PW-1 also within
one hour. PW-1 has spoken before Court as in the FIS.
Insofar as PW-3 is concerned his version is believable
though he had been declared hostile in the earlier
trial. He has an explanation of threat leveled against
him and graphically describes his abduction and
production before Court on the morning of the trial, by
the friend of the assailants. His statement is in
1068 of 2015
tandem with that spoken of before the Magistrate under
S.164. The explanation is also believable since PW1
also speaks of the tribulations he had to undergo after
he gave evidence in the earlier trial. PW9 the father
of the deceased also speaks of a threat having been
leveled against him. The learned prosecutor would also
rely on the decision of the Hon'ble Supreme Court
(1984) 4 SCC 116 [Sharad Birdhichand Sardar v State of
Maharashtra] to persuade this Court to rely on the
statements made by the deceased, to those close to him,
about the enimity nurtured by A2 and A5, as statements
relating to the cause of his death under S.32 of the
Evidence Act. The evidence of PWs.6, 9 and 10, the
wife, father and friend are read over to further
buttress this contention. Learned prosecutor also
placed reliance on (1989) 1 SCC 437 Lalji v. State of
U.P to contend that it is not necessary; where there is
an unlawful assembly and an offence committed by a
member of that assembly, that every member should be
proved to have a weapon in their hands or participated
in the offence as such.
6. Sri.Vijayabhanu, however, cautions us from
relying on such statements as evidence under Section 32
primarily for reason of the Investigating Officer
(I.O.) having categorically denied such statements
having been made to the Police. It is also pointed out
that no reliance can be placed on the 164 statement
since it has not been proved by the Magistrate who was
examined as PW-36. Reliance is placed on Shinoj and
1068 of 2015
others v. State of Kerala [2019 KHC 862] which held
that S.164 statement is not substantive evidence.
7. We have closely perused the evidence with
the binding precedents in our mind. PW1 spoke in tandem
with the FIS marked as Ext.P1. He was present before
the JFCM Court II, Thiruvananthapuram along with the
deceased and others who were arrayed as accused in a
case before that court. After the case was adjourned,
the deceased offered PW1 a lift and he joined the
deceased and three others in the Indica Car which was
driven by PW-2. While they were proceeding to
Kazhakkoottam, near Sadeendra Auditorium, by around
12.15 p.m. a Scorpio car which was following, overtook
the Indica car and forced them to stop, by dashing on
the front of their car. When both the vehicles stopped,
there emerged around ten people from the Scorpio car,
hurling bombs at the Indica car. He specifically
identified A1, A2 and A3 among the assailants. The
frightened passengers of the Indica car, stepped out of
the car, when the assailants took out hidden weapons.
A1 shouted to the others to hack every one of them to
death. PW-1 and the deceased ran down the road to its
side, when PW-1 fell down suffering injuries to his
hands. He is said to have hidden himself in the thick
shrubs growing on the side of the road. He saw the
deceased running, with A1, A2 and some others in hot
pursuit. A1 and A2 along with the others brutally
hacked at the deceased and continued to hack at him
indiscriminately even after he fell down. A3 hurled a
1068 of 2015
bomb at the driver PW-2 who also suffered injuries.
Soon after the hacking the assailants left the place in
the Scorpio car and PW-1 saw Krishna Kumar lying in a
pool of blood with cut marks on his neck.
8. PW-1 approached the fallen friend, covered
the injuries with his own shirt and cried aloud for
help. A police vehicle passing by on the road heard the
cry and they took the deceased along with PWs.1&2 to
the hospital. PW-1 spoke of A2 carrying a chopper with
which he hacked the deceased indiscriminately. PW-1
identified A2 as the person standing in the dock
wearing an orange shirt. He also identified MO2 chopper
used by A2 which had a handle without a hook.
9. PW-2 the driver spoke of the incident in the
very same manner as PW-1 and identified A2. Like PW-1,
PW-2 also suffered injuries in the accident, from the
bomb hurled at him. PW-28 is the Doctor who attended to
the deceased as also PWs.1&2. The Doctor had deposed
that along with the deceased brought by Flying Squad
ASI T.Krishnakumar, PW-1 and PW-2 were also brought to
the hospital. PW-2 on examination, was found to have
suffered a lacerated wound on the frontal region of
scalp which was sutured. The certificate issued as
against PW-2 is marked as Ext.P33 and the injuries
noted there are stated to be possible by a glass piece;
obviously suffered in the bomb blast. The Doctor
further spoke of PW-1 also having been brought in along
with the deceased. PW-1 suffered a lacerated wound over
the forearm below elbow and multiple abrasion over left
1068 of 2015
forearm, one of which wounds was sutured. The Doctor
spoke of such injuries being possible on a simple fall
on a rough surface. The injuries suffered by PWs.1&2
corroborate their testimonies. MO2 weapon used by A2,
was recovered on the confession statement made by A2 as
per mahazar at Ext.P10 which was witnessed by PW-12 who
supported the prosecution.
10. The postmortem was conducted by PW-35 who
noticed as much as 15 incised wounds, 4 abrasions and 1
contused abrasion. The incised wounds were: two on both
sides of the head, four on the back of head, one on the
top of head, three on the front of neck, one each on
the inner aspect of right arm, back of right hand, back
of right left heel, inner aspect of left leg above the
ankle and a puncture wound on the left leg above heel.
The abrasions were found on the right arm, left
forearm, left thigh and right side of front of chest.
The opinion of cause of death is due to head injury.
Injuries 1 to 7, incised wounds on the head
individually and in combination, with their effects on
the brain; according to the Doctor, are sufficient in
the ordinary nature to cause death. The injuries 1 to
8 and 15 were possible by the heavy cutting weapons
MOs.2 to 4 shown to the Doctor. Injuries 9,10 and 18
were possible with MO1 sword which could also cause
injury No.19, a puncture wound.
11. The chemical analysis report produced as
Ext.P54 is of white powdery particles and fiber like
materials collected and sent for chemical analysis
1068 of 2015
recovered from the body of the deceased. Ext.P54
indicates these particles to contain Potassium,
Nitrate, Sulphur, Carbon, Nitrite and Sulphate, which
are explosive substances. PW-31 is the Systems Director
[Explosives], who examined the vehicles kept in the
Petta Police Station. From the Scorpio car remnants of
explosives were recovered and from the Tata Indica Car,
in addition to remnants of explosives, small granite
stones, broken pieces of grey coloured sheet like
materials, partially melted rubber beadings with glass
pieces were collected. The result of examination as
seen from Ext.P43 indicates traces of Potassium
Chlorate, Aluminium powder and Sulphur in both the
cars. These materials were detected inside the Indica
Car on its top surface, its bonnet, front windscreen
and tyres. The items so found in both the cars were
explosive substances. The materials collected from the
scene of crime as seen from Exts.P44 & P45 also
indicated chemicals used for manufacturing explosives.
PW-32 is the Assistant Director at FSL,
Thiruvananthapuram, who examined both the vehicles as
forwarded from the ACJM Court, Thiruvananthapuram. In
the Scorpio Car having Registration No.KL-2-W-9583,
blood was detected on a mat found on the floor of the
car. The blood stains were collected and on
examination, as per Ext.P46, it was seen to be human
blood belonging to Group B, which is the blood group of
the deceased too, as revealed from Ext.P53 Postmortem
Report.
1068 of 2015
12. MO2 was recovered on the confession
statement of A2. The recovery is evidenced by Ext.P10
Mahazar, witnessed and proved by PW-12. There is no
substance in the contention that no blood stains were
noticed on the chopper. The incident occurred on
20.02.2007 and the chopper was recovered from an open
area as per Ext.P10 on 07.03.2007. The chopper was sent
to the FSL, by Forwarding Note Ext.P88. The description
of MO2 in Ext.P88 is "A chopper made of iron, with a
wooden handle having a length of 39 cm; the handle of
14 cm and blade, sharp on one side, of 45 cm". MO2 was
Item No.11 in Ext.P47 FSL Report, which shows presence
of blood; the quantity being insufficient to determine
the origin. We do not think the fact that no blood
stains were visible on MO2 leads to any suspicion
regarding the recovery. The blood detected by the FSL
was only minimal and not sufficient to even determine
the origin. The medical and scientific evidence hence
fully supports the case of the prosecution. The
deceased was murdered in the incident as spoken of by
PWs.1&2 and A2 was definitely one of the assailants,
who used MO2 chopper to hack the deceased along with
other assailants, some of whom have already been
convicted and two are still absconding.
13. We did not speak of the evidence of PW-3,
who also spoke in tandem with PWs.1&2, insofar as the
guilt of A2, even without PW-3's evidence, stands
established. PW-3 is the clinching witness insofar as
involvement of A5 is concerned. The learned Prosecutor
1068 of 2015
had a contention that the payments made to the account
of A5 were by A10 and the entire feud started with the
contract acquired by A10 to remove sand from Parvathy
Puthanar. The same seems to have been established in
the earlier crime. However we notice that A10 was
acquitted and there is no evidence in the instant crime
as to any such feud between the parties. The
prosecution also let in elaborate evidence regarding
the mobile usage which failed to create any impact
since the subscribers of the SIM cards were not
established. There was also a case set up as to the
key of the Scorpio car having been recovered from the
house of PW-17 as handed over to the Police by his wife
PW-18. The case set up by the prosecution was that A5
handed over the bag to the son of PWs.17&18 and as per
A5's confession statement, it was recovered from their
house. The confession statement as pointed out by the
Senior Counsel did not speak of the key having been
kept in the bag or having been concealed in the bag.
The confession was only with respect to the dress used
by A5 having been kept in the bag. MO 11 is said to be
the shirt used by A5, the colour of which differs from
that stated by the witness. In any event, PWs.17&18
turned hostile and there could be no reliance placed on
such recovery made under Section 27.
14. PW-3, in the earlier trial [S.C.No.1540 of
2009], turned hostile. He denied every single statement
made by him to the Police under Section 161 and to the
Magistrate under Section 164. His specific case at that
1068 of 2015
point was that the Police forced him to make statements
against the accused on threat of being implicated in
false cases. In the present instance, he turned turtle,
before Court and spoke in tune with his statements
before the Police and the Magistrate. He had an
explanation in re-examination, albeit an elaborate one,
regarding his previous conduct before Court. PW-3
stated that he was abducted by the friends of A2 & A5
and was detained in another person's house, where he
was threatened with dire consequences to himself and
his family, if he deposed against the accused in the
case charged on the murder of Krishna Kumar. He also
alleged that he was later taken to Kanyakumari and then
brought back to Thiruvananthapuram, where the threats
continued in the illegal detention of the abductors. He
was released only on the morning on which the evidence
of S.C.No.1540/2009 was posted. He also speaks of the
presence of one lawyer, who accompanied the abductors,
in Court on that day. We are satisfied that the
explanation offered is quite convincing, especially
considering the fact that both the assailants and the
victims are persons involved in criminal cases and
their friendships and enmity arise and cease from
internecine feuds, which are common among such persons
having criminal antecedents; that too involved in
organized crime. In this context, it is pertinent to
note that PW-9, the father of the deceased, spoke of
having been threatened by A5 on a public road, which
incident led to registration of Ext.P8 FIR. Ext.P8 is
1068 of 2015
dated 24.06.2007, a few months after the incident and
long before the trial. The allegation was that A3,
along with six others, confronted PW-9 in a car on the
National Highway and with a knife placed on his neck
warned him from pursuing the case of murder of his
son, which if not obeyed he was threatened with the
same fate as his murdered son.
15. We do not think any reliance can be placed
on the precedents quoted. Sharnappa Mutyappa Halke held
that when the witness has resiled from the evidence in
the committing Court and evidence has been brought
under Section 288 of Cr.P.C., before such evidence is
accepted satisfaction about it being true and reliable
is necessary. Mahadeo was also a case in which the
witness was declared hostile before the committing
Court and before the Sessions Court he was examined as
a Court witness. The excuse put forward for remaining
silent for six months was found to be unsustainable and
the conviction on the sole testimony of such a witness
held untenable. Sadhu Ram held that conviction on the
basis of testimony of solitary witness is permissible
but only on the Court being satisfied that implicit
reliance can be placed on such testimony and the same
is so free of blemish so that it can be accepted
without any corroboration. Bhimappa Chandappa Hosamani
was a case in which out of the two eye witnesses, one
was found to be not an eye witness and the other,
though the mother of the deceased, was held to be
unreliable for reason of the prevarications in the
1068 of 2015
evidence regarding the motive with respect to the
illicit relationship of the deceased son. Rai Sandeep @
Deepu held that when conviction is based on the sole
testimony of the prosecutrix, without any forensic or
other evidence, it should be ensured that the witness
is a sterling witness of a very high quality and
caliber. It is not the dictum that a solitary witness
cannot be relied on without corroboration or even that
a witness who digressed from his earlier statement,
always has to be viewed with suspicion. It is for the
Court to decide on the facts and circumstances whether
the witness is credible or not. The Hon'ble Supreme
Court has in (2021) 2 SCC 608 Asharam Tiwari vs. State
of Madhya Pradesh reiterated that it is not the number
of witnesses that is material but the quality of
evidence that is relevant.
16. PW-3 has a reasonable and convincing
explanation for having turned hostile in the earlier
trial which in the circumstances of the crime and the
antecedents of the parties involved is very credible.
In this context, we also notice that PW-1 also had
spoken of his tribulations for reason of his having
spoken the truth against the other accused in the
earlier trial. We also find that the evidence of PW-3
was in tune with his statements before the Police and
before the Magistrate. We do not see even one
contradiction in either S.161 statement or S.164
statement having been confronted to PW-3. We have to
rely on PW-3's evidence against A5, which on the other
1068 of 2015
aspects we find to be corroborating that of PWs.1&2,
specifically as against A2.
17. As we noticed, with regard to the
allegation against A5 of having participated in the
incident, PW-3 is the clinching witness. PW-3 was
sitting on the rear seat of the Indica Car on the right
side, according to him. PW-2, the driver of the Indica
Car, also stated that PW-3 was sitting just behind him.
When the Scorpio car overtook the Indica and dashed on
the front of the Indica car thus causing it to stop,
along with others, PW-3 also ran out of the car. While
PWs.1 & 2 and the deceased ran down to the side of the
road, PW-3 having alighted from the right side of the
car ran in the opposite direction across the road. He
also speaks of having looked back to see if the
assailants were following him and saw A5 sitting in the
driving seat of the Scorpio car. The deposition of
PW-3, as we noticed, is in consonance with the earlier
statements made to the Police and the Magistrate.
18. The incident in general has been spoken of
by PWs.1 to 3. The specific allegation of the presence
of A5 comes out only from the deposition of PW-3. PW-3
though denied the statements made before the Police and
the Magistrate in the earlier trial, took a totally
different stance in the present trial; as we found, for
a very reasonable and valid explanation. The incident
as narrated by PW-3 tallies with that of PWs.1 and 2
and is also corroborated by the forensic evidence
regarding the use of explosives, dangerous weapons and
1068 of 2015
the presence of the other assailants and the victims
which led to the murder of one of the persons
travelling with PWs.1 to 3. All these circumstances
makes PW-3 a very reliable witness and he had a valid
explanation for having turned hostile in the earlier
trial. As has been held in Sharnappa Mutyappa Halke,
the satisfaction entered into by us, on the credibility
of PW-3, is with respect to the occurrence in general
and what is said against the particular accused,
here A5. The enmity of A5 to the deceased is fairly
clear from the evidence led by the other witnesses. We
do not place reliance on the statements made by the
deceased before his death to the extent of giving it
the sanctity under Section 32. PW-3 has spoken about
the enmity of A5 to Krishna Kumar. PWs.9 and 10, the
father and friend of the deceased, though spoke of
such enmity, as rightly pointed out by the learned
Senior Counsel, they have not stated any such enmity
towards the police as brought out in the
cross-examination of the I.O., PW-14. PW-6, the wife,
specifically spoke of her husband having told her about
his earlier friends having turned against him. She
specifically spoke of A5 and questioned him in the
Court itself, turning to the dock, why he caused the
murder of her husband.
19. As rightly noted by the trial Court having
found the evidence of PW-3 to be credible, as to the
presence of A5 at the scene of occurrence in the
driving seat of the offending Scorpio vehicle,
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necessarily he has to be found guilty of the various
offences charged and found against him read with
Section 149 of the IPC. We extract herewith paragraphs
9 and 10 from Lalji:
"9. Section 149 makes every member of an
unlawful assembly at the time of committing of
the offence guilty of that offence. Thus this
section created a specific and distinct offence.
In other words, it created a constructive or
vicarious liability of the members of the
unlawful assembly for the unlawful acts committed
pursuant to the common object by any other member
of that assembly. However, the vicarious
liability of the members of the unlawful assembly
extends only to the acts done in pursuance of the
common objects of the unlawful assembly, or to
such offences as the members of the unlawful
assembly knew to be likely to be committed in
prosecution of that object. Once the case of a
person falls within the ingredients of the
section the question that he did nothing with his
own hands would be immaterial. He cannot put
forward the defence that he did not with his own
hand commit the offence committed in prosecution
of the common object of the unlawful assembly or
such as the members of the assembly knew to be
likely to be committed in prosecution of that
object. Everyone must be taken to have intended
the probable and natural results of the
combination of the acts in which he joined. It is
not necessary that all the persons forming an
unlawful assembly must do some overt act. When
the accused persons assembled together, armed
with lathis, and were parties to the assault on
the complainant party, the prosecution is not
obliged to prove which specific overt act was
done by which of the accused. This section makes
a member of the unlawful assembly responsible as
a principal for the acts of each, and all, merely
because he is a member of an unlawful assembly.
While overt act and active participation may
indicate common intention of the person
perpetrating the crime, the mere presence in the
unlawful assembly may fasten vicariously criminal
1068 of 2015
liability under Section 149. It must be noted
that the basis of the constructive guilt under
Section 149 is mere membership of the unlawful
assembly, with the requisite common object or
knowledge.
10. Thus, once the court holds that certain
accused persons formed an unlawful assembly and
an offence is committed by any member of that
assembly in prosecution of the common object of
that assembly, or such as the members of the
assembly knew to be likely to be committed in
prosecution of that object, every person who at
the time of committing of that offence was a
member of the same assembly is to be held guilty
of that offence. After such a finding it would
not be open to the court to see as to who
actually did the offensive act or require the
prosecution to prove which of the members did
which of the offensive acts. The prosecution
would have no obligation to prove it".
20. A5 was driving the car which followed the
Indica car in which the deceased and his friends were
travelling. A5, while overtaking the Indica car,
swerved to the left and dashed on the front of the
Indica car thus forcing it to stop with the clear
intention of attacking the passengers in the other car.
The passengers in the Scorpio jumped out of the car and
hurled bombs at the other car. The assailants also took
out weapons, chased the deceased and having caught up
with him, hacked him to death. The 5 th accused was all
the time watching the proceedings sitting in the car
and in the driving seat ready to provide a get away.
Immediately after the incidents the assailants ran back
to the car and all of them fled from the scene of
occurrence in the car driven by A5. They absconded and
1068 of 2015
arrests were made later. There is clear evidence of an
unlawful assembly of which A5 was one of the members
and offences were committed under the IPC, leading to
the death of one of the victims and a very reasonable
apprehension of death to the other passengers of the
vehicle, which was way-laid. A5, by his role, is a
member of the unlawful assembly in prosecution of the
common intention of that assembly, who had clear
knowledge of what the members of the unlawful assembly
were planning; which plan was successfully executed
with A5's active help.
We on a re-appreciation of evidence, find the
conviction and sentence of the appellants to be
perfectly in order. We see no reason to interfere
either with the conviction or the sentence. We dismiss
the appeals.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
Vku/jma/sp.
[ true copy ]
