Holding

The appellants were part of an unlawful assembly with a common object to murder the deceased, and their convictions under Sections 302 and 149 IPC are upheld.

Summary

The deceased Kochukuttan and his companion attacked the appellants, prompting the appellants and nine others to retaliate with swords and other deadly weapons, causing fatal injuries to Kochukuttan. Eye‑witnesses PW‑1 (the brother‑in‑law of the deceased) and PW‑2 positively identified the appellants and described the injuries, which were corroborated by medical evidence showing death resulted from those wounds. The trial court convicted the appellants under Sections 302 and 149 IPC; the High Court upheld these convictions but set aside the conviction under Section 120B and acquitted several co‑accused. On appeal, the Supreme Court held that the eye‑witness testimony was reliable, the appellants acted with a common object to murder, and the principle of parity does not require their acquittal merely because some co‑accused were acquitted. Consequently, the convictions under Sections 302 and 149 IPC were affirmed and the appeals dismissed.

Issues considered

The reliability of eye‑witness identification despite alleged poor lighting and lack of an identification parade.
Whether the appellants can be held liable under Section 149 IPC for an unlawful assembly with a common object to commit murder.
Whether the principle of parity mandates acquittal of the appellants because other co‑accused were acquitted.
Whether the conviction under Section 120B IPC should be set aside.
Whether the death of the deceased was caused by injuries inflicted by the appellants.

Legislation cited

Indian Penal Code, 1860s. 114, s. 120B, s. 143, s. 147, s. 148, s. 149, s. 302

Subjects

MurderUnlawful assemblyCommon objectSection 149 IPCPrinciple of parityEye‑witness identificationCriminal conspiracy

Judgment

[2010] 10 S.C.R. 241

PRATHAP & ANR. A
v.
STATE OF KERALA
(Criminal Appeal Nos. 1198-1199 of 2005) ·
AUGUST 27, 2010
B
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]

Penal Code, 1860 -:- ss. 302 and 149 -' Murder -
Deceased and one more attacking accused persons and co- C
accused - In retaliation, accused and co-accused armed with
deadly weapons inflicting fatal injuries-to deceased - High
Court upholding. conviction of accused u/s. 3021149 but
setting aside the conviction u/s. 120-B - As regard co-
accused, High Court upholding acquittal of four co-accused D
and also acquitting the other four co-accused convicted by trial
court - On appeal, held: Facts and circumstances clearly
prd.ve the existence of common object .of accused to
eliminate the deceased - Accused had a clear motive -
Evidence of eye-witnesses is reliable - Medical evidence E
leads to the conclusion that death resulted from injuries
caused by accused - Prosecution witnesses not only
identified accused as assailants with swords but also indicated
injuries inflicted by them on deceased ...;.. Accused don't
deserve to be acquitted on the principle of parity- Thus, order F
of High Court does not call for interference - Evidence -
Criminal law - Common object - Principle ·of parity -
Constitution of India 1950 - Article. 136.

According to the prosecution case, 'K'-deceased and
'M'-CW 11 attacked the appellants. To seek revenge, the G
appellants and the other accused inflicted various
injuries to 'K' resulting in his death. The appellants and
the other accused were tried by the Court of Session for
the offences punishable u/ss. 114, 143, 147, 148, 120-B
241 H
242 SUPREME COURT REPORTS (2010] 10 S.C.R.

A and 30a/149 IPC. The High Court upheld the conviction
and sentence of the appellants u/s. 30!f149 IPC, however,
It set·aside the conviction<u/s.120 Ii IIDC. The High Court
uphefd:Jthe acquittal~of A3 and A8 to A10 and also
acquitte·d accused·no. 4, 5, 6 and 7. Therefore, the
B appellants filed the instant appeat.
Dismissing the appeals, the Co~rt
HELD: 1.1 The trlal court as well. as the High .Court
correctly reHe~ upon the unflincmf'tg, coherent and
C consistent evidence given by PW 1.:.wbich leaves no
· manner of doubt about the entire Seqilence of events.
The evidence given by PW1 was corroborated by PW 2
in every material particular. The submission with l'egard
to the scene of crime not being well lit Is without any
D substance. Similarly, the criticism with regard to the .
identification parade not having been held Is of no
consequence, PW 1 and PW 2 clearly stated that the
appellants were previously known to them. PW1 certainly
even knew about the previous enmity between the
IE deceasecf and the appellants. [Paras 14 and 15] [255-F;
267~C·EJ

1.2 There le no reason at all to disbelieve the
evidence of the eye-witnesses. The weapons used by the
F appellants and the injuries caused have been specifjcally
mentioned by PW1 and PW2. Recoveries of the swords
used by them were made at the Instance of the
appellants. Recoveries of other weapons, clothes worn
by the accused on the day of the ass~ult were also made
at the instance of the other accused. Medical evidence
G also leads to the conclusion that the death resulted from
the injuries caused by the appellants and the other
accused with their respective weapons. In view of the
proven facts, it becomes evident that t_he appellants had
acted with a common object to eliminate the deceased.
H [Para 16] [257-F-H]
~ ..
,... -~',,_ . - '~-

PRATHAP & ANR. v. STATE OF KERALA 243

Bhagwan Singh vs. State of M.P, (2002) 4 SCC 85; A
Chanda vs. Stateof U.P. (2004) 5 SCC 141 ,... referred to.

1.3 It cannot be said that the appellants were perhaps
unaware that the murderous assault, intended1to·be
committed.by them, would, in all probability, cause the e
.death of 'K'. Both the trial court as well as the High Court
considered the specific injuries caused by the appellants
with swords. There were 20 ante-mortem Injuries on the
deceased. According to the opinion of the doctor, the
death was due to injuries caused .on the chest and on the C
left palm. The death could also have resulted from the
cumulative effect of all other injuries. Therefore, there Is
no manner of doubt that 'K' died as a result of injures
caused by the appellants along with the other accused.
[Para 17) [259-G-H; 260-A-B] . . .
D
1.4 It is always open to a court to differentiate the
accused Ylho had ·.been acquitted from those who had
been convicted. ~th the courts below applied the said
principle in distinguishing the case of the appellants from
those who have been acquitted. ll1e appellants were E
known to be associates of the deceased. They had
previous social interaction. For some time they had
differences of a.pinion .. This led to an assault by the
deceased and his companion CW 11, on the appellants,
A1 and A2. Consequently, the appellants wanted to settle F
the score with the deceased. They had a clear motive. This
apart, PW 1 and PW 2 not only identified the appellants
as assailants With swords· but' also indicated the injuries--·
inflicted by them on t:he deceased: On the other liand,'the
accu'sed persons who had been acquitted were not G
known to PW 1 and PW 2. In fact, PW 1_in the evidence
categorically admitted that'ttie other accused were not~ '
from the locality but~were·s~metimei(seen there. tile- ·
courts below rightty declined to a"cqult tile" agpellarits~ 9n"~ '
1

the principle of parity. [Paras 18 and 19) [260-C-G] 1
H
244 SUPREME COURT REPORTS [2010] 10 S.C.R.

A Gangadhar Behera vs. State of Orissa (2002) 8 SCC 381
- referred to.

1.5 The trial court as well as the High Court rightly
convicted the appellants, as the facts and circumstances
of the case unequivocally proved the existence of the-
8
common object of the appellants. They had come looking
for. '.K' armed with deadly weapons with the intention of
causing grievous bodily injuries. There was a pre-planned
attack. They located him and caused serious injuries with
swords, choppers and other weapons, which led to his
C death. Thus, they were rightly convic~ed and sentenced
u/s. 302/149 IPC. The concurrent views taken by the trial
coul"f: .as also the High Court cannot be said to be ~ither
clearly illegal or manifestly erroneous and does not call
for any interference under Article 136 of the Constitution
D of India. [Paras 20 and 211 [261-D-F]
Siri Kishan and Others· Vs. State of Haryana (2009) .12
SCC 757; Muminidi Hemadri and Others Vs. State of Andhra
Pradesh (2007) 13 SCC 496; Chanda and Others Vs. State
E of U.P. and Another (2004) 5 sec 141 - referred to.
Case Law, ~eference:
. (2009) 12 sec 751 Referred to. Para 5
t•. ' .-
'
·· (2001) 13 sec 496 ., .,~eferred rto.
1
Para 5
F
(2004) 5 sec 141 R~tertec:i ·to. Para 5
;,':" '. \ ;:1 ', -: -:.1 ~
. c2002) 4.sgc .85 . ~eferr:ed:•to,;" · Para 16

(2004)5 '~cc 141 ' '· 1eW~f~{ i,~~- . ". , Para 1.6
G
.(2002) 8 SCC 381 Referred •to.''. · . Para 1·9 .
... . ~ ' . l - ).\ .; . -'· 1 . \,..
· GRIM1NAL APPELLATE, JURISDICTIONc Criminal
Appeal :•Nos~
. -.
1°198-1.199 of 2005. ·: .. , i .
..
· ;
___,.
~ ' ;.
,.
H
''
PRATHAP & ANR. v. STATE. ,OF Ki:RALA 245

From the Judgment & Order dated 28.06.2004 of the High A
Court of Kerala at Ernakulam inCrl. Appeal No. 432 of 2003
(B) and Crl. Appeal No. 873 of 2003.

C,N .. Sreekumar, T.G.N. Nair, V.K. Sidharthan for th.e
Appellants. . · B
R. Sathish, S. Geetha for the Appellant.
. . .

The Judgment of the Court was delivered by .. ' j , '
. . - "',·, .. , .. :,;
. SURINDER SIN~H NIJJAR, J ..1:.These 'lwi> \appeals, c
have been filed against the common judgment of the High Coll.rt
of Kerala at Erriakulam dated 28.6.2004 in Crim\naLAppeal
No. 432 of 2003 and Criminal Appeal No.:1873 of 2003 whereby
the High Court dismissed the appeal filed by the ~ppeiiants
herein by confirming the judgment of th~ t.rial court Cig~vjcting D
and sentencing theni under Section 302'iifr1di 149 of tf1$' Indian
Penal Code. By the same judgment, . ,. 'th~ir
" . 1 conviction .'Under '
·~~·.' ~~-
Section 120 (B) was se' aside. ';,· · ·\
-; .

2. The appellants along with eight other persons were tried ·.
by the Sessions Court, Kolla111; in Sessions case no. 564/1999 E
for the offences punishable under Section 114, 143, 147, 148, .
120(8) & 302 read with.,Section 149'of Indian Penal Code. It '
was the case of the prosecution that the deceased Kochukuttan
and Murali (CW-11) had assaulted the appellant~ on 1ef-5.1997
. . ' ··"': '• .
"at 9.00p.m. at a place at Ch,a1thram Restauraf?t" rup by the F
appellantOevakumar@ Jayakumar. Seeking revenge, the two
appellc:mts,. Rajeev (A3) and Venli (A4) assembled at
Chaith~ar:n Restaurant at Veliyam junction on 20.6.1'9~7 at 7.45
p.mc·;C!fld hatched a conspiracy to murd~r Kochul<uttan. On
· 24.6.,1997, all the ten accused in furtherance of ~ common G
'object.:· armed with 'deadly weapons such as sword~. 'iron rods,
choppef,: knife ·and stick etc. came to Chaithram R~staurant in ..
a jeep1KL::.2B/9938. The jeep, which belbnged to CW-16, was-., ')!:~~;,
driven.by Venu (A4). All the accused caiTie out of}hej~~~.~tar>' ~1~f·
place m,front of the restaurant. ~~cused Pratha~ (h.~{~{J{afte"t, ,· H~\'-.
.,. .: I ,. ·-. . ,._ _
I '•
~
'-
246 SUPREME COURT REPORTS [2010] 10 S.C.R.

A referred to as A 1) and Rajeev (hereinafter referred to as A3)
wtmrln the front whereas Padmachandran (AS) to Deepu,{~10)
followed t>ehind them. They came to a place in front of
Har[shrl'le Bakers on the Eastern side of Kottarakkara Oyoor
t _Public Road at Veliyamjunction at about 7.45 p.m. At that time,
B the deceased was talking to PW·1 Hareendranathan. A3,
Rajeev, called Kochu~uttan by saying "Kochukuttan Come
here". Thereafter, appellant no. 1 Prathap (A1) assaulted the
deceased with his sword and caused an Injury on his head. At
the same time, appellant no. 2 (A2) shouted "cut this man". He
c was also armed with 'a sword and made a cut With the same
on the side of the Chest of the deceased. As .a result of the
injuries, Kochukuttan fell down on the road on the side of the
verandah of Harishree Bakers. Thereafter, Padmachandran
(hereinafter referred to as AS), Arjunan (hereinafter referred to
as A6), Siddikishan (hereinafter refifred to as A7), Saji @
0
Sajith(hereinafter referred to.as AB), Rajesh(hereinafter referred
to as A9) and qeepu(h~reinaft~r referred to as A 10) are
alleged to have inflicted various injuries with their weapons such
as iron rods, chopper, sword, knife and stick. After causing
E • mqrt~l_inJuries to Kochukuttan, the assailants left the pla~e in
the same jeep in which they had arrived. The deceased was
moved to the hospital initially in ~ car driven by CW-14.
However, the lights of the car developed some problem and
the deceased was transferred to the jeep driven by CW-15.
· Kochukuttan succumbed to the injuries at 8.10 p.m. on
F 24.6.1997. Upon completion of the investigation, U~e ten
accused were put on trial. The prosecution cited PW-1, PW-2.
PW:4.and P-W-5 to PW-10 as eye-witnesses. It is noticed by
the High Court that PW-6 to PW-10 were declared hostile as
they did not fully support the prosecution story. PW-3 was
G examined mainly to prove the criminal conspiracy which had
been hatched at the hotel of Chaithram owned by A2, appellant
in Criminal Appeal No: 873 of 2003 in the High Court. The trial
court convicted A 1, A2, A5, A6 and A7 under Section 302 of
IPC and sentenced them to imprisonment for life and fine of
H
PRATHAP & ANR v. STATE OF KERALA 247
[SURINDER SINGH NIJJAR, J.]
Rs. 20,000/- each, in default to undergo R.I. for a period of 6 A
months. A1, A2, A5, A6 and A7 were also convicted under
Section 149 and sentenced to RI. for 1 year each. A.1. A2 and
A4 were also convicted of the offence under Section 1206... IPC
and sentenced to RI. for 5 years each. Accused A3 and A~ to
A 10 were acquitted~ · 6

3. The two appellants· herein challenged the aforesaid
judgment by filing Criminal Appeal No. 873 of 2003 and 432
of 2003 before the High Co1,1rt. The other accused persons filed
·criminal Appeal No. 319/2003, 400/2004, 422/2003, 479/
2003. State of Kerala preferred Criminal Appeal No. 901/2003 C
against the acquittal of 5 accused persons. All the appeals
were heard together by the High Court and decided by a
common judgment dated 28.6.2004. The appeals filed by the
two appellants herein against the conviction and sentence under
Section 302 IPC read with Section 149 of the IPC were D
dismissed. However, the conviction of these two appellants
under Section 120(6) was set aside. The appeals filed by the
State against the acquittal of A3 and A8 to A 10 were also
dismissed. At the same time, the appeals filed by accused no.
4, 5, 6 and 7 were· allowed and their conviction as well as the E
sentence was set aside. These two appeals have been filed
by the two appellants against the judgment of the High Court
rendered in Criminal Appeal No. 873 and 432 of 2003.

4. We have heard the learned counsel for the parti~s. F.

5. The submissions made by the learned counsel for the ·
appellants before the High Court· have been reiterated before
this Court. Learned counsel appearing for the appellants, Mr.
C.N. Sreekumar, has submitted that the presence otthJ eye-
· witnesses is doubtful. Even if the alleged eye-witnesses ~ere G
present, their evidence cannot be relied upon as it would have
been impossible to identify the assailants as the sce~e of
· occurrence was not a well lit place. Assault which led td the
death of Kochukuttan is alleged to have taken place at about
7.45 P.M. At the relevant time, there was load shedding of H

--'~
248 SUPREME COURT REPORTS [2010) 10 S.C.R.

A electricity in Kerala. On the date of the incident, the load
shedding commenced at about 7.30. P.M. Therefore, it would
not have been possible to identify the appellants. It would also
not have been possible for the eye-witnesses to notice the
weapons which were allegedly used by all members of the
B unlawful assembly. Learned counsel further submitted that the
eye-witnesses have failed to state categorically as to which
injury was caused by which appellant and with which weapon.
The learned counsel submitted that the eye-witnesses account
is highly suspicious. Attacking the evidence of PW1, the
c learned counsel has submitted that the witness is the brother-
in-law of the deceased. He has been deliberately introduced
by the prosecution. If he was an actual witness to the incident,
he would have tried to save his brother-in-law and would have
certainly received some. injuries. Apart from this, when the
deceased was being moved to the hospital, this witness did
0
not accompany the deceased in the same car. According to
the learned counsel, fhe evidence of PW2, suff~rs from the
same· infirmities, Learned' counsel further submitted that the
High Court having acquitted all the accused from the charge
of criminal conspi~cy. there was hardly any evidence of unlawful
E assembly or common object. Therefore, a conviction under
Section 302 IPC cannot .be recorded on the basis of su~h
evidence. At best, the appellants could have been convicted
under Section 304 IPC. In support of the submissions, learned
counsel has relied on three judgments of this Court, viz.,
F
(1) Siri Kishan and Others Vs. State of
Haryana, (2009) 12 SCC 757

(2) Mummidi Hemadri and Others Vs. State of
Andhra Pradesh, (2007) 13 SCC 496
G
(3) Chanda and Others Vs. State of UP. and
Another, (2004) 5 SCC 141

6. Learned counsel further submitted that in any event, the
H evidence of the eye-witnesses cannot be believed as there was
PRATHAP & ANR. v. STATE OF KERALA 249
[SURINDER SINGH NIJJAR, J.]
no identification parade held by the investigating officer to A
identify the accused persons, who have actually committed the
offence. It is further submitted by the learned counsel that the
identification of the appellants in the Court is of no
consequence as the appellants along with the other co-accused
had been shown to the witnesses in the police station. Their B
weapons were also shown to the witnesses. As a result of these
infirmities, the co-accused ef the appellants have been
acquitted. Therefore, on the principle of parity, the appellants
also deserved the benefit of doubt. According to the learned
counsel; apart from the unsatisfactory identification of the c
appellants, the case of the prosecution has not been supported
by PW6 to PW10, who were having shops in the
neighbourhood at the junction where the assault had taken
place. Therefore, it was submitted that the very genesis of the
assault has not been proved. · D
7. On the other hand, Mr. R. Sathish, learned courisel
appearing for the State of Kerala submitted that the trial court
as well as the High Court has given concurrent findings. The
evidence having been appreciated twice, by the trial court as
also the High Court, does not leave any iota of doubt as to the E
involvement of the appellants in the murder of the deceased.
He has submitted that the first information report was registered
on the basis of the first information statement given by the
'brother-in-law of the deceased, PW1 very soon after the
incident. The. consistent story given by PW1 was fully F
corroborated by the eye-witnesses account of the PW2. The
conspiracy has been duly proved by the evidence of PW3. He
has further submitted that the submission of the learned counsel
with regard to the place of assault being not properly lit is
factually incorrect because the Veliyam junction where the G
murder took place is a very busy place and well lit throughout
the night. Learned counsel further submitted that the injuries
which caused the death of Kochukuttan have been specifically
pointed out by the medical evidence in the inquest report as
also in the postmortem report. Coming to the evidence with H

·"' :
250 SUPREME COURT REPORTS [2010) 10 S.C.R.

A regard to the identification of the appellants, learned counsel
submitted that any infirmities in not holding the identification
. parade would be totally irrelevant in case of the appellants as
they were previously well known to PW1 and PW2. The
evidence of PW1 and PW2 has been duly corroborated by the
B evidence of other eye-witnesses PW4 and PW5. So far as the
submissions with regard to the non-identification. of the
weapons and the non-attribution of the particular injuries to the
appellants, learned counsel submitted that their participation is
such that they would not be entitled to the benefit of the very
c limited exception which is permissible to a by-stander in a
charge under Section 149 IPC. Learned counsel further
submitted that this is a clear case of enmity as the deceased .
and CW-11 had attacked appellants on the night before the
murder. With regard to the load shedding, learned counsel has
submitted that the entire assault incident took place within a
0
span of 3 to 4 minutes. It is alleged to have commenced at 7.i5
P.M. and would have .been over by 7.28. P.M. The load
shedding if any does not commence till after 7.30 p.m. Even
otherwise, it is submitted that on the fateful night of 24.6.1997,
E it was a moonlight night, therefore, it would not be a case of
complete darkness at night.

8. We have given due consideration to the· rival
submissions made by the learned counsel. The High Court in
the impugned judgment has clearly observed that the identity
F of the deceased and the place of occurrence etc. are not
disputed in this case .. Postmortem of the dead body of
Kochukuttan was conducted by PW-18 at 11.40 a.m. on
25.6.1997. Ex. P17 is the postmortem certificate which shows
that there are 20 ante mortem injuries. PW-16 has opined that
G the death was due to injuries sustained to the chest and left
palm, that is, injuries No. 14 to 20 and death can also be due
to the cumulative effect of all the injuries. Both the Courts have
concluded that the medical evidence is consistent with the eye-
witnesses account given by PW-1, PW-2, PW-4 and PW-5. As
H noticed above, PW-6 to PW-10 although cited as eye-
PRATHAP & ANR. v. STATE OF KERALA 251
[SURINDER SINGH NIJJAR, J.]
witnesses were declared hostile and did not support the A
prosecution.

9. The trial court formulated 5 points for consideration,
which are as follows:-

(1) Whether the death of Kochukuttan was B
because of the injuries sustained in the
occurrence?

(2) Whether the accused persons had inflicted
injuries on deceased? c
(3) Whether the accused persons A 1 to A4 had
conspired together to cause the murder of
deceased Kochukuttan?

(4) What offence, if any, accused persons had D
committed?

(5) Regarding sentence?

On point no. 1, the trial court concluded on the basis of the E
findings in the inquest report as follows:

"The inquest on the dead body of deceased was
conducted by PW19, sub inspector on the morning on
25.6.1997 at the District Hospital on the direction given by ·
the Circle Inspector, Kottarakara and Ext.P20 is the inquest F
report prepared by PW.19. In Ext.P20, PW.19 had noted
the injuries found on the dead body. By Ext.P20, the cause
of death is due to the injury sustained by beating, stabbing
and cutting. In Ext.P20, it is stated that as per the
information received, the injuries were inflicted on the G
deceased by A 1, A2 and others due to their animosity
against deceased Kochukuttan. Ext.P17 is the
postmortem certificate prepared by PW16, doctor who
has conducted the postmortem examination on the dead
body of the deceased. In Ext.P17, 20 ante mortem injuries . H
252 SUPREME COURT REPORTS [2010) 10 S.C.R.

A are noted on the body of the deceased and the cause of
death stated in Ext.P17 'due to the injury sustained to the
chest and left palm'."

10. In the post mortem report (Ex.P17), the following injuries
w~re noticed on the deceased:-
B
(1) Incised wound 4.5x2 cm skin deep oblique
reflecting a flap backwards on the left side
of face, the upper outer and being 4 cm in
front of ear.
c
(2) Incised wound 5x1 cm bone deep obliquely
placed on the left side of head the lower inner
and being 9 cm outer to midline 6 cm. Above
eyebrow.
D (3) Abrasion 2x1 cm on the left side of forehead
2 cm outer to mid line and ~ cm 'above
eyebrow.

(4) Incised wound 3.5 x 0.5 cm bone deep
E obliquely placed on the left side of back of
head the lower inner and being 5 cm outer
to midline and 18 cm above root of neck.

(5) Incised punctured wound 3 x 1 x 9 cm.
Oblique on the right side of root of neck, the
F
lower inner blunt and being 10 cm below right
ear. The upper outer and was sharply cut. The
wound was directed downwards, forwards
and the left through the .muscle plane.
G (6) Incised punctured wound 2.5x1x6.5' cm
oblique on the right side of root of neck, its
lower inner blunt end being 2 cni, above the
injury No. 5. The upper outer end was sharply
cut. The wound was directed downwards,
H
PRATHAP & ANR. v. STATE OF KERALA 253
[SURINDER SINGH NIJJAR, J.]
forwards and the left throug·h the muscle A
plane.

(7) Abraded contusion 2 c 1.5x05 cm. On the
front of right shoulder 2 cm inner to its tip.

(8) Incised wound 1.Bx0.5 skin deep obliquely B
placed on the right side of front of neck, the
lower inner and being 5 cm outer to midline
2.5 cm. Above collar bone.

(9) Lenior abrasion 7.5 cm. long oblique on the c
outer front and cuter aspect of right arm the
lower inner and being 9 cm. above elbow.

(10) Incised wound 7 x 02 x 10 oblique on the
outer aspect of right arm the lower inner and
D
being 9 cm above elbow.

(11) ·Lacerated wound 0.8x0.8x1 .5 cm on the
outer aspect of right arm 0 cm above elbow.

(12) Lacerated wound 1x1 cm bone deep on the E
outer aspect of right arm 2 cm above elbow.
Underneath the humerus was found fractured
4 crri above elbow.

(13) Abrasion 1.5x1 cm. on the outer aspect of
right elbow. F

(14) Incised wound 1Ox1 .5x2 cm obliquely placed
on the left palm the lower outer and was in
the web space in between the middle and
ring finger. Underneath the muscle tendon G
and vessels were found sharply cut.

(15) Incised wound 2.5x05 cm skin deep on the
back of left ring finger 4 c:m. below its root.

(16) Incised wound 8x3x3 cm horizontal on the H
254 SUPREME COURT REPORTS [2010] 10 $.C.R.

A back and outer aspect of left forearm, 9 cm
below elbow, underneath the muscles, the
radius bone was found cut and sep'arated.

(17) Incised wound 9x3.5 cm skin deep at its
upper part and 3 cm deep at its lower part
8
oblique with tailing upwards, on front of left
side of chest, the lower inner and being 3.5
cm outer to middle and 9.5 cm below the
JJpper end of sternum.
c (18) Incised wound 11x1 .5x0.5 cm oblique on the
right side of back of trunk, the lower inner and
being 11.5 cm outer to midline 4 cm below
root of neck.

D (19) Incised wound 2.5x1 cm skin deep oblique
on the back of right side of trunk, the lower
inner end being 11.5 cm outer to midline 9
cm below root of neck.

(20) Incised penetrating wound 2.5x1 cm
E obliquely placed on the back of left side of
trunk, the lower inner sharply cut end was 5.5
cm outer to midline and 7 cm below root of
neck. The outer end of the wound showed
splitting of the skin. The chest cavity was
F scan penetrated through the Vth intercostal
space, after cutting the upper border of the
Vth rib. The upper· lobe of the back aspect
of the lung was scan punctured 2x05x4 cm.
The left chest cavity contained 300 ml. of fluid
G blood. The track of the wound was directed
downwards and forwards to the right. The
total minimum depth of the wound was 14
ems."

11. The trial court also noticed that PW-16, the doctor, who
H
PRATHAP & ANR. v. STATE OF KERALA 255
[SURINDER SINGH NIJJAR, J.]
conducted the postmortem examination, stated "that the death A
was due to the injuries sustained to the·chest and the left palm,
that is, injuries no. 14 to 20". These injuries were caused by
sharp cutting weapons such as sword or chopper. Thus, the
inquest report (Ex.P20) and the postmortem report (Ex.P17)
would clearly show that Kochukuttan died as a result of the s
injuries sustained in the fatal assault by the appellants and the
other co-accused.

12. The trial court on the basis of evidence given by the
eye-witnesses concluded that the participation in the assault by C
appellants herein is proved beyond doubt. The conspiracy was
held to be proved on the basis of the evidence given by PW3.
On the ba~is of the findings, the trial court convicted the two
appellants along with the other co-accused as noticed above.

13. The High Court on a re-examination of the entire body D
of the evidence has also concluded that the ocular evidence of
PW1 cannot be discarded simply on th~ ground that he is the
brother-in-law of the deceased. The High Court has also held
that there is clear evidence that both the appellants had
participated and formed an unlawful assembly with a common E
object to commit the murder of the deceased. The High Court,
therefore, found that there is clear evidence with regard to the
appellants having committed the offence under Section 149
IPC.

14. A perusal of the evidence of PW1 leaves no manner F
of doubt about the entire sequence of events. He has
graphically recounted the arrival of the assailants in the jeep.
He even gave the sequence and the order in which they had
advanced towards Kochukuttan. He has stated in categoric
terms that he had known the appellants herein for a number of G
years. He had seen the others in the vicinity and at the Veliyam
junction. He has categorically stated about the participation of
both the appellants. He has named both the appellants in the
first information statement. He has given a graphic account of
the injuries caused by both the appellants. He has also narrated H
256 SUPREME COURT REPORTS [2010] 10 S.C.R.

A how the accused went away in the jeep after inflicting mortal
injuries on the deceased. He also talks about the load shedding
which according to him commenced from 7.30 p.m. He further
narrated that the car in which the injured Kochukuttan was being
taken had developed electrical problem and that the deceased
B had to be removed to a jeep. He has categorically stated that
by reason of enmity, A 1 and A2 together have murdered his
brother-in-law. He identified the weapons wielded by the
appellants. He could also recognize the apparels worn by the
accused with clear distinction. In his examination, he also stated
c that the incident was clearly seen in the street light and light of
the nearby shops. He stated that at that tim~. 3 bulbs were
glowing over the shop where the incident happened. There was·
also Mercury Street light. The incident could be seen clearly.
He also stated that the vicious assault was the result of
0 instigation of A2. This witness was cross-examined at length.
In his cross-examination, he has stated that deceased
Kochukuttan was a Marxist party worker. He reiterated that he
has stated before the police that A 1 had taken a sword which
was concealed at the back of his waist and had stabbed at the
left side of the head of the deceased. He also went on to say
E that A2 also stabbed Kochukuttan on the left side of his chest
pursuant to which the deceased had fallen down to the road
from the cement thinna. Such deposition of PW1 also gets
strength from the seizure of MOs Nos. 13 and 14, i.e., portion
of blood stained cement and portion of removed cement without
F blood respectively. He also reiterated that he had narrated the
acts done by each and every accused. He reiterated that he is
able to identify all the accused persons. In the cross-
examination, he seems to have further strengthened the case
of the prosecution. While answering the numerous questions
G posed by the defence counsel, he elaborated that there was
previous enmity between the deceased and the accused
persons. So there was clear motive for the appellants to assault
the deceased. He also stated that the police had not recorded
the version as he had narrated. He had definitely told the police
H about the signs for identification of the accused. He admitted
PRATHAP & ANR. v. STATE OF KERALA 257
[SURINDER SINGH NIJJAR, J.]
that all the accused were not the residents of the place of A
occurrence. However, the appellants herein were certainly local
residents. He even went on to narrate that the deceased told
him about 2 weeks ago that the appellants had attempted to
kill him through hired people. He categorically states in the
cross-examination that the entire incident of assault took 3 B
minutes. He also stated that the deceased used to go to the
junction quite regularly by about 7.00 p.m. and he would usually
go home by 9 p.m.

15. In our opinion, the trial court as well as the High Court C
correctly relied upon the unflinching, coherent and consistent
evidence given by PW1 . The evidence given by PW1 has been •
corroborated by PW2 in every material particular. From the•
above narration, it becomes apparent that the submission with
regard to the scene of crime not being well lit is without any
substance. Similarly, the criticism with regard to the D
identification parade not having been held is of no
consequence. PW1 ·and PW2 have clearly stated that the
appellants herein were previously known to them. PW1 certainly
even knew about the previous enmity between the deceased
and the appellants. E·

16. We see no reason at all to disbelieve the evidence of
the eye-witnesses. The weapons used by the appellants and
the injuries caused have been specifically mentioned by PW1
and PW2. There were 20 ante mortem injuries on the F
deceased. Recoveries of the swords used by them were made
at the instance of the appellants. Recoveries of other weapons,
clothes worn by the accused on the day of the assault were also
made at the instance of the oth_er accused. As stated above,
medical evidence also leads to the conclusion that the death: G
has resulted from the injuries caused by the appellants and the
other accused with their respective weapons. In view of the
proven facts, in this case as noticed by the trial court, the High
Court and by us above, it becomes evident that the appellants
had acted with a common object to eliminate the deceased.
H
258 SUPREME COURT REPORTS [2010] 10 S.C.R.

A This Court delineated the circumstances in which constructive
liability can be fastened on the accused, in the case of Bhagwan
Singh Vs. State of M.P., {2002) 4 SCC 85, wherein it was
observed:

"9. Common object, as contemplated by Section 149 of
8
the Indian Penal Code, does not require prior conc~rt or
meeting of minds before the attack. Generally no direct
evidence is available regarding the existence of common
object which, in each case, has to be ascertained from the
attending facts and circumstances. When a concerted
c attack is made on the victim by a large number of persons
armed with deadly weapons, it is often difficult to determine
the actual part played by each offender and easy to hold
that such persons who attacked the victim had the
common object for an offence which was known to be likely
D to be committed in prosecution of such an object. It is true
that a mere innocent person, in an assembly of persons
or being a bystander does not make such person a
member of an unlawful assembly but where the persons
forming the assembly are shown to be having identical
E interest in pursuance of which some of them come armed,
others though not armed would, under the normal
circumstances, be deemed to be the members of the
unlawful assembly. In this case the accused persons have
been proved to be on inimical terms with the complainant
F party. The enmity between the parties had been
aggravated on account of litigation with respect to the
dispute over the mango trees. Accused persons who
came on the spot are shown to have come armed with
deadly weapons. The facts and circumstances of the case
G unequivocally prove the existence of the common object
of such persons forming the unlawful assembly who had
come on the spot and attacked the complainant party in
consequence of which three precious lives were lost. The
High Court was, therefore, justified in holding that the
H
PRATHAP & ANR. v. STATE OF KERALA 259
[SURINDER SINGH NIJJAR, J.]
accused persons, involved in the occurrence, had shared A
the common object."

(emphasis supplied)

The aforesaid proposition was further reiterated in the case of
Chanda Vs. State of U.P., (2004) 5 SCC 141: B

"8. The pivotal question is applicability of Section 149 IPC.
The said provision has its foundation on constructive
liability which is the sine qua non for its operation. The
emphasis is on the common object and not on common• c
intention. Mere presence in an unlawful assembly cannot
render a person liable unless there was a common object
and he was actuated by that common object and that
object is one of those set out in Section 141. Where
common object of an unlawful assembly is not proved, the 0
accused persons cannot be convicted with the help of
Section 149. The crucial question.to determine is whether
the assembly consisted of fiv_e or more persons and
whether the said persons entertained one or more of th~
common objects, as specified in Section 141. It cannot be
E
laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be
a member of an unlawful assembly, it cannot be said that
he is a member of an assembly. The only thing required
is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall F
within the purview of Section 141." '

17. In the present case we are unable to accept the
submission that the appellants were perhaps unaware that the
murderous assault, intended to be committed by them, would, G
in all probability, cause the death of Kochukuttan. We have
earlier noticed that both the trial court as well as the High Court
have considered the specific injuries caused by the app~llants .
with swords. As noticed above, there were 20 ante mortem
injuries on the deceased. According to the opinion of the doctor, H
260 SUPREME COURT REPORTS [2010] 10 S.C.R.

A the death was due to injuries caused on the chest and on the
left palm. It is further observed that the death could also have
resulted from the cumulative effect of all other injuries. Therefore,
there is no manner of doubt that Kochukuttan died as a result
of injures caused by the apf)ellants along with the other
B accused.

18. We also do not find any substance in the submission
of the Learned Counsel of the appellant that since all the other
co-accused have been acquitted; on the ground of parity the
C appellants herein also deserve to be acquitted. It is always
open to a court to differentiate the accused who had been
acquitted from those who had been convicted. Both the Courts
below have applied the aforesaid principle in distinguishing the
case of the appellants herein from those who have been
acquitted. To remove any doubt we may emphasize that the
D appellants herein were known to be associates of the
deceased. They had previous social interaction. For some time
they had been having differences of opinion. This had led to
an assault by the deceased and his companion Murali (CW11)
on the appellants herein, namely, Prathap (A1) and Devakumar
E (A2). Consequently the appellants herein had wanted to settle
the score with the deceased. They had a clear motive. This
apart, PW1 and PW2 not only identified the appellants herein
as assailants with swords but also indicated the injuries inflicted
by them on the deceased. On the other ~and the accused
F persons who had been acquitted were not known to PW1 and
PW2. In fact PW1 in the evidence had categorically admitted
that the other accused were not from the locality but were
sometimes seen at the Veliyam Junction. ,

19. In our opinion the Courts below rightly declined to
G acquit the appellants on the principle of parity. The power of
the Courts to distinguish the cases of one or more of the
accused(s) from the other(s) is far too well recognized to need
reiteration. Still, we may notice the principle as stated in the

H
PRATHAP & ANR: v. STATE OF KERALA 261
[SURINDER SINGH NIJJAR, J.]
case of Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC A
381 wherein this Court observed as follows:

"Even if a major portion of the evidence is found to be
deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other co-
B
accused persons, his conviction can be maintained. It is
the duty of the court to separate the grain from the chaff.
Where chaff can be separated from the grain, it would be
open to the court to convict an accused notwithstanding
the fact that evidence has been found to be deficient to
prove guilt of other accused persons." c
20. In our opinion the trial court as well as the High Court
rightly convicted the appellants as the facts and circumstances
of the case unequivocally prove the existence of the common
object of the appellants. They had come looking for Kuchukuttan D
armed with deadly weapons with the intention of causing
grievous bodily injuries. There was a preplanned attack. They
located him.and caused serious injuries with swords, choppers
and other weapons, which led to his death. Thus they were
rightly convicted and sentenced for the offence under Section E
302/149 IPC.

21. We are also of the considered opinion that the
concurrent views taken by the trial court as also the High Court
cannot be said to be either clearly illegal or manifestly
erroneous and do not call for anyinterference under Article 136 F.
of the Constitution of India.

22. In view of the above, both the appeals are dismissed.

N.J. Appeals dismissed.