Supreme Court of India
RAMACHANDRAN & ORS. ETC.versusSTATE OF KERALA
- Citation
- 2011 INSC 645
- Decided
- 2 September 2011
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
All members of the unlawful assembly are liable under Section 149 IPC once a common object is established, irrespective of individual overt acts.
Summary
The accused formed an unlawful assembly of seventeen persons armed with swords, choppers, knives and iron rods to attack Sobhanan (PW2) and his father Kuttappan, resulting in Kuttappan's death and injuries to others. The trial court convicted all accused under various offences read with Section 149 IPC, and the High Court modified some convictions. On appeal, the Supreme Court examined whether a common object existed and whether Section 149 IPC applied to all members, holding that once a common object is established, every member is vicariously liable even without an overt act. The Court found sufficient evidence of the assembly’s common object and rejected the claim that witness contradictions rendered the testimony unreliable. Consequently, the convictions under Section 149 IPC were upheld, the sentences of the second set of appellants were reduced to reflect time served, and the appeal was dismissed.
Issues considered
- Whether the unlawful assembly had a common object that brings all its members within the ambit of Section 149 IPC, even if some did not personally commit the murder.
- Whether the eye‑witness evidence, despite minor contradictions, is sufficient to sustain convictions of a large number of accused.
Legislation cited
- Indian Penal Code, 1860s. 141, s. 143, s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 324, s. 427, s. 449
Subjects
Section 149 IPCunlawful assemblycommon objectvicarious liabilitymurdereye‑witness testimonyconviction of multiple accused
Judgment
[2011) 13 (ADDL.) S.C.R. 923
RAMACHANDRAN & ORS. ETC. A
v.
STATE OF KERALA
(Criminal Appeal No. 162 of 2006)
SEPTEMBER 02, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Penal Code, 1860 - s.3021149 and s.3071149- Unlawful
assembly armed with various weapons causing murder of one
person and serious injuries to two others - Applicability of C
s.149- Held: Once it is established that the unlawful assembly
had common object, it is not necessary that all persons
forming the unlawful assembly must be shown to have
committed some overt act - Even mere presence in the
unlawful assembly, but with an active mind, to achieve the D
common ·object makes a person vicariously liable for the acts
of the unlawful assembly - It is obligatory on the part of the
court to examine that if the offence committed is not in direct
prosecution of the common object, it yet may fall under
second part of s.149 /PC, if the offence was such as the E
members knew was likely to be committed - "Common object"
may also be developed at the time of incident - In the instant
case, there was enough evidence on record to establish that
the accused-appellants were present, armed with sword stick,
choppers, knife and iron rods - All these weapons were used F
by the appellants for committing the offences and causing
injuries to their victims - If all the circumstances are taken
into consideration, it cannot be held that the appellants had
_not participated to prosecute a 'common object' - Even if it
was not so, it had developed at the time of incident - Trial G
court as well as the High Court proceeded in correct
perspective and rightly applied the provisions of s.149 /PC -
All the accused were very well known to the witnesses - So
their identification etc. was not in issue - As their participation
923 H
924 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A was governed by second part of s.149 /PC, overt act of an
individual lost significance - Conviction of accused-
appellants, as recorded by courts below, accordingly upheld.
Evidence - Witnesses - Murder trial - Seventeen
8 accused - Incident was over within a very short time - Held:
In such a case even if minor contradictions appeared in the
evidence of witnesses, it is to be ignored for the reason that it
is natural that exact version. of the incident revealing any
minute detail i.e. meticulous exactitude of individual acts
C cannot be expected from the eye-witnesses.
According to the prosecution, on account of past
enmity, the accused persons formed an unlawful
assembly for the purpose of committing the murder of
PW2; that they waited in the house of A-1 and when PW.2
D came along the pathway on the side of the house, A.1
repeatedly shouted "catch him" and then the accused
persons chased PW2 and on seeing this, PW.2 ran
towards the house of PW.3; however, A.1 inflicted cut
injury on his hand; that thereafter though PW.2
E succeeded in entering the said house and in closing the
door from inside, the accused-appellants broke open the
door and inflicted injuries on PW.2 with their respective
weapons and also dragged and beat him; that on hearing
the hue and cry, 'K', the father of PW.2 and PW.1 reached
F there, but the accused-appellants rushed towards him
shouting "Kill them" and thereafter, A.1 inflicted a cut
injury on his head with a sword stick in his hand and
other accused inflicted injuries on him with their
respective weapons, namely, choppers, knives and iron
G rods and that when PW.1 and PW.4 made an attempt to·
intervene, they were also attacked by the appellants and
were rendered injured. 'K' succumbed to the injuries
caused by the accused at the spot.
The trial court convicted A1 to A11, 14 and 15 under
H Sections 143, 147, 148, 307, 323, 324, 449, 427 and 302 of
RAMACHANDRAN & ORS. ETC. v. STATE OF 925
KERA LA
the IPC read with Section 149 IPC and sentenced them A
to undergo imprisonment for life. The other accused,
namely, A12, A13, A16 and A17 were convicted under
Sections 143, 147, 148, 307, 323, 449, 427 read with
Section 149 IPC. They were sentenced to undergo
rigorous imprisonment for 10 years each. On appeal, the B
High Court modified the order of the trial court to the
extent that conviction of A7, A10 and A11 under Section
302 IPC was set aside. However, their conviction and
sentence for other offences were confirmed.
In the instant appeal, the appellants inter a/ia argued C
on application of the provisions of Section 149 IPC,
contending that the appellant did not have common
object to cause death of 'K' and as seventeen persons
had been involved, it was not possible for the alleged eye-
witnesses to give minute detail about their respective D
overt act; more so, PW.2 had become unconscious after
being beaten and regained conscious after two days,
thus, it was not possible for him to see the incident
regarding the death of his father 'K'. The appellants
contended that the courts below erred in making the case E
of some of the appellants distinguishable from others as
one set of appellants stood convicted under Sections
302/149 IPC etc. while another set of appellants were
convicted under Sections 307/149 IPC etc., though, under
the facts and circumstances of the case, no distinction F
was permissible; that the appellants had not proceeded
with common object to kill any person, thus, provisions
of Section 149 IPC were not attracted; that though from
the facts available on record, inference can be drawn that
some of the appellants had an object to catch hold of G
PW.2, however, there was no intention to kill him; that rio
independent witness was examined and all the injured
witnesses had been very close to the deceased; that in
a case, where a very large number of assailants are there
and the incident is over in a short span of time, it is not H
926 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A possible for the eye-witnesses to identify all the accused
and give detailed description of participation of each of
them and thus evidence of the eye-witnesses cannot be
relied upon.
Disposing of the appeal, the Court
B
HELD:1.1. Section 149 IPC has essentially two
ingredients viz. (i) offence committed by any member of
an unlawful assembly consisting five or more members
and (ii) such offence must be committed in prosecution
C of the common object (under Section 141 IPC) of the
assembly or members of that assembly knew to be likely
to be committed in prosecution of the common object.
[Para 10) [940-E]
0 1.2. For "common object", it is not necessary that
there should be a prior concert in the sense of a meeting
of the members of the unlawful assembly, the common
object may form on spur of the moment; it is enough if it
is adopted by all the members and is shared by all of
them. In order that the case may fall under the first part
E the offence committed must be connected immediately
with the common object of the unlawful assembly of
which the accused were members. [Para 11) [940-F-G]
.
1.3. Even if the offence committed is not in direct
F prosecution of the common object of the assembly, it
may yet fall under second part of Section 149 IPC if it can
be held that the offence was such as the members knew
was likely to be committed. The expression 'know' does
not mean a mere possibility, such as might or might not
G happen. For instance, it is a matter of common
knowledge that if a body of persons go armed to take
forcible possession of the land, it would be right to say
that someone is likely to be killed and all the members of
the unlawful assembly must be aware of that likelihood
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 927
KERA LA
and would be guilty under the second part of Section 149 A
IPC. [Para 12] [940-H; 941 ·A-B]
1.4. There may be cases which would come within
the second part, but not within the first. The distinction
between the two parts of Section 149 IPC cannot be B
ignored or obliterated. [Para 13] [941-C]
1.5. However, once i_t is established that the unlawful
assembly had common object, it is not necessary that all
persons forming the unlawful assembly must be shown
to have committed some overt act. For the purpose of C
incurring the vicarious liability under the provision, the
liability of other members of the unlawful assembly for the
offence committed during the continuance of the
occurrence, rests upon the fact whether the other
members knew beforehand that the offence actually D
committed was likely to be committed in prosecution of
·the common object. [Para 14] [941-D-F]
1.6. The crucial question for determination in such a
case is whether the assembly consisted of five or more E
persons and whether the said persons entertained one
or more of the common objects specified by Section 141.
While determining this question, it becomes relevant to
consider whether the assembly consisted of some
persons who were merely passive witnesses and had
joined the assembly as a matter of idle curiosity without F
intending to entertain the common object of the
~ssembly. [Para 15] [941~G-H; 942-A]
1.7. The law of vicarious liability under Section 149
IPC is crystal clear that even the mere presence in the G
unlawful assembly, but with an active mind, to achieve
the common object makes such a person vicariously
liable for the acts of the unlawful assembly. [Para 18]
[942-F-G]
H
..
928 SUPREME COURT REPORTS [2011]· 13 (ADDL.) S.C.R.
A 1.8. This court has been very cautious in the catena
of judgments that where general allegations are made
against a large number of persons the court would
categorically scrutinise the evidence and hesitate to
convict the large number of persons if the evidence
B available on record is vague. It is obligatory on the part
of the court to examine that if the offence committed is
not in direct prosecution of the common object, it yet may
fall under second part of Section 149 IPC, if the offence
was such as the members knew was likely to be
C committed. Further inference has to be drawn as what
was the number of persons; how many of them were
merely passive witnesses; what were their arms and
weapons. Number and nature of injuries is also relevant
to be considered. "Common object" may also be
developed at the time of incident. [Para 21} [943-H; 944-
0
A-C}
Bhanwar Singh & Ors. v. State of MP. (2008) 16 SCC
657: 2008 (9) SCR 1; Mizaji & Anr. v. State of U.P. AIR 1959
SC 572: 1959 Suppl. SCR 940; Gangadhar Behera & Ors.
E v. State of Orissa AIR 2002 SC 3633; Daya Kishan v. State
of Haryana (2010) 5 SCC 81: 2010 (4) SCR 854; Sikandar
Singh v. State of Bihar (2010) 7 SCC 477: 2010 (8) SCR 373;
Debashis Daw v. Stateof WB. (2010) 9 SCC 111: 2010 (9)
SCR 654; Masa/ti v. State of Uttar Pradesh AIR 1965 SC
F 202:1964 SCR 133; K.M. Ravi & Ors. v. State of Kamataka
(2009) 16 SC 337; State of U.P. v. Krishanpal & Ors. (2008)
16 SCC 73: 2008 (11) SCR 1048; Amerika Rai & Ors. v.
State of Bihar (2011) 4 SCC 677 and Charan Singh v. State
of U.P.(2004) 4 SCC 205: 2004 (2) SCR 925 - relied on.
G
2. In the instant case, it is evident that the trial court
as well as the High Court proceeded in correct
perspective and applied the provisions of Section 149 IPC
correctly. The facts have properly been analysed and
appreciated. There is enough evidence on record to
H establish that the accused-appellants were present,
RAMACHANDRAN & ORS. ETC. v. STATE OF 929
KERA LA
armed with sword stick, choppers·, knife and iron rods. A
The seventeen accused gathered at the residence of A.1
and waited for the appropriate time knowing it well that
PW.2 would return from the temple. Immediately, after
seeing him, A.1 shouted "chase him, chase him". In order
to save his life, he ran away and entered into the house B
of PW3. However, before he could enter the house, he
was inflicted injury by A.1 with the sword stick. PW.2
succeeded in entering the house and closing the door
from inside. The accused/appellants broke open the door
and caused injuries of very serious nature to PW.2 and c
left him under the impression that he had died. The
accused were having .one sword stick, two choppers,
one knife and twelve iron rods. All these weapons were
used by the appellants for committing the offences and
causing injuries to their victims. 'K' (deceased) received 0
as many as 34 injuries. In view thereof, if all the
circumstances are taken into consideration, it cannot be
held that the appellants had not participated to prosecute
a 'common objecf. Even if it was not so, it had developed
at the time of incident. In view thereof, submission made
E
by the appellants in respect of applicability of Section 149
IPC is not worth consideration. (Paras 6, 24] (935-G; 946-
G-H; 947-A-D]
3. There is no force in the submission made by the
appellants that as the number of accused had been F
seventeen and the incident was over within a very short
time, it was not possible for witnesses to give-as detailed
description as has been given in this case, and there had
been several contradiction therein, therefore, their
evidence is not reliable. In such a case even if minor G
contradictions appeared in the evidence of witnesses, it
is to be ignored for the reason that it is natural that exact
version of the incident revealing any minute detail i.e.
meticulous exactitude of individual acts cannot be
expected from the eye-witnesses. In this case all the H
930 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.
A accused were very well known to the witnesses. So their
identification etc. has not been in issue. As their
participation being governed by second part of Section
149 IPC, overt act of an individual lost significance. [Para
25] (947-E-H]
B
Abdul Sayeed v. State of Madhya Pradesh (2010) 10
sec 259: 2010 (13) SCR 311 - relied on .
4. However, the courts below have made distinction
ii) two sets of the accused/appellants and that attained
C finality as the State did not prefer any appeal against the
same. All appellants in the second set have been
convicted for the offence punishable under Sections 307/
149 IPC etc. and awarded sentence of 10 years rigorous
imprisonment. These appellants have submitted the
D certificates of s1:1rvice of sentence rendered by them.
According to the said certificate, these appellants have
served 4-1/2 years to 8 years. All of them have been
already granted bail by this Court. In the facts and
circumstances of the case, their conviction is upheld,
E however, the sentence is reduced as undergone. Appeal
of the other appellants stands dismissed. [Para 26) (948-
A-C]
Case Law Reference:
F 2008 (9) SCR 1 relied on Para 11
1959 Suppl. SCR 940 relied on Para 13
AIR 2002 SC 3633 relied on Para 13
2010 (4) SCR 854 relied on Para 14
G
2010 (8) SCR 373 relied on Para 14
2010 (9) SCR 654 relied on Para 14
1964 SCR 133 relied on Para 15
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 931
KERA LA
(2009) 16 SC 337 relied on Para 16 A
2008 (11) SCR 1048 relied on Para 17
(2011) 4 sec 677 relied on Para 18
2004 (2) SCR 925 relied on Para 19
B
2010 (13) SCR 311 relied on Para 25
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 162 of 2006.
From the Judgment & Order dated 7.4.2005 of the High c
Court of Kerala at Ernakulam in Crl. A.Nos. 1675 and 1955 of
2003.
C.N. Sree Kumar, Resmitha R. Chandran for the
Appellants. D
M.T. George, Ramesh Babu M.R., for the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been E
preferred against the judgment and order dated 7.4.2005
passed by the High Court of Kerala at Ernakulam in Criminal
Appeal Nos. 1675 and 1955 of 2003 by which the High Court,
while affirming the findings of fact, modified the judgment and
order of the trial court dated 29.8.2003 in Sessions Case No. F
58 of 2001 i.e. Criminal Appeal No. 1675 of 2003 stood
dismissed, while Criminal Appeal No. 1955 of 2003 was partly
allowed.
2. Facts and circumstance giving rise to this appeal .are
~ G
A. Babu (PW.1); Sobhanal'I (PW.2); and Parvathy (PW.4)
all relatives were having inimical terms with the appellants.
Several criminal cases were pending between them. In order
to take revenge, the appellants formed an unlawful assembly
for the purpose of committing murder of Sobhanan (PW.2). They H
932 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A waited in the house of Sudhakaran (A.1) on 12.4.2000, which
was the last day of Mahotsavam conducted in the
Shanmughaviiasam temple at Kulasekharamangalam, at about
10.00 p.m.
B. Sobhanan (PW.2) came alongwith his 8 years old son
B .along the pathway on the eastern side of the house of
Sudhakaran (A.1) from the temple. Sudhakaran (A.1)
repeatedly shouted "catch him". The accused chased him and
on seeing this, Sobhanan (PW.2) ran from the place leaving
his son there towards the house of Sobhana (PW.3) i.e.
C "Sophia Bhawan". However, before Sobhanan (PW.2) could
enter "Sophia Bhawan", Sudhakaran (A.1) inflicted cut injury on
his hand. Sobhanan (PW.2) entered the said house and
succeeded in closing the door from inside. All the accused
except Shaji (A.18) broke open the door and inflicted injuries
D on Sobhanan (PW.2) with their respective weapons and he was
dragged to the western courtyard and again beaten. In this
process, a large number of articles of the use of "Sophia
Bhawan" got destroyed.
C. While hearing the hue and cry, Kuttappan (deceased)
E father of Sobhanan (PW.2) and Babu (PW.1) reached there.
The appellants rushed towards Kuttappan (deceased) shouting
"Kill them" and thereafter, Sudhakaran (A.1) inflicted a cut injury
on the head of the deceased with a sword stick in his hand and
other accused inflicted injuries on him with their respective
F weapons, namely, choppers, kniv~s and iron rods. When Babu
(PW.1) and Parvathy (PW.4) made an attempt to intervene, they
were also attacked by the appellants and injured. Kuttappan
succumbed to the injuries caused by the accused at the spot
and the accused persons ran away from the spot.
G
D. An FIR in respect of the incident was lodged and thus,
investigation commenced. The recovery of the weapons was
mad.e at the instance of the accused and after completing the
formalities, 18 accused were put on trial. The prosecution to
H prove its case examined a large number of witnesses including
RAMACHANDRAN & ORS. ETC. v. STATE OF 933
KERALA [DR. B.S. CHAUHAN, J.]
five eye-witnesses. Out of them, four had been injured A
witnesses.
E. On conclusion of the trial, the court acquitted Shaji
(A.18) and convicted A1 to A11 , 14 and 15 under Sections 143,
147, 148, 307, 323, 324, 449, 427 and 302 of the Indian Penal
B
Code, 1860 (hereinafter called 'the IPC') read with Section 149
IPC and sentenced to undergo imprisonment for life and also
for payment of fine of Rs.25,000/- each, in default to undergo
rigorous imprisonment for five years under Section 302 IPC and
they are further sentenced to undergo rigorous imprisonment C
for ten years each and also to pay a fine of Rs.10,000/- each,
in default to undergo rigorous imprisonment for three years each
under Section 307 IPC and further sentenced to undergo
rigorous imprisonment for one year each and also to pay a fine
of Rs.3000/- each, in default to undergo rigorous imprisonment
for two months each under Section 324 IPC and they are also D
liable to be sentenced to undergo rigorous imprisonment for
six months each and also to pay a fine of Rs.1000/- each. In
default to undergo rigorous Imprisonment for two months each
under Section 323 IPC and further sentenced to undergo
rigorous imprisonment for six months each and also to pay a E
fine of Rs.1000/- each, in default to undergo rigorous
imprisonment for two months each under Section 427 IPC and
they are further sentenced to undergo rigorous imprisonment
for seven years each and also to pay a fine of Rs.5000/.· each,
in default to undergo rigorous imprisonment for two years each F
under Section 449 IPC and they are also sentenced to undergo
rigorous imprisonment for six months each under Section 143
IPC and further sentenced to undergo rigorous imprisonment
for one year each under Section 148 IPC and the sentences
are directed to run concurrently. G
Other accused, namely, A12, A13, A16 and A17 were
con'victed under Sections 143, 147, 148, 307, 323, 449, 427
read with Section 149 IPC. They were sentenced to undergo
rigorous imprisonment for 10 years each and also to pay a fine H
934 SUPREME COURT REPORTS [2011) 13 (AODL.) S.C.R.
.A of Rs., 10,000/- each, in default to undergo rigorous
imprisonment for 3 years each under Section 307 IPC and
further sentenced to undergo rigorous imprisonment for six ·
months each and also to pay a fine of Rs.1000/- each, in default
to undergo rigorous imprisonment for two months each under
B Section 323 IPC and further sentenced to undergo rigorous
imprisonment for six months each and also to pay a fine of
Rs.1000/- each, in default to undergo rigorous imprisonment
for two months each under Section 427 IPC and further
·sentenced to undergo rigorous imprisonment for seven years
c each, and also to pay a fine of Rs.5000/- each, in default to
undergo rigorous imprisonment for two years each under
Section 449 IPC and further sentenced to undergo rigorous
imprisonment for one year each under Section 148 IPC and
also further sentenced to undergo rigorous imprisonment or six
months each under Section 143 IPC.
0
F. Being aggrieved, the appellants preferred the appeals
which have been disposed of by common judgment and order
dated 7.4.2005 by which the High Court modified the order of
the trial court to the extent that conviction of A7, A10 and A11
E under Section 302 IPC was set aside. However, their conviction
and sentence for other offences have been confirmed.
Hence, this appeal.
3. Shri C.N. Sree Kumar, learned counsel appearing for
F the appellants, has submitted that courts below erred in making
the case of some of the appellants distinguishable from others
as one set of appellants stood convicted under Sections 302/
149 IPC etc. and another set of appellants has been convicted
under Sections 307/149 IPC etc., though, under the facts and
G circumstances of the case, no distinction is permissible. Even,
if the case of some of the appellants has to be separated from
others, the set of appellants who have been convicted under
Section 302/149 IPC would have been convicted under Section
304 - Part I IPC. This was necessary in view of the evidence
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 935
KERALA [DR. B.S. CHAUHAN, J.]
of the doctors, who conducted the postmortem examination of A
Kuttappan (deceased) and examined other persons. The
appellants had not proceeded with common object to kill any
person in as much as to kill Kuttappan, thus, provisions of
Section 149 IPC are not attracted. From the facts available on
record, inference can be drawn that some of the appellants had B
an object to catch hold of Sobhanan (PW.2), however, there
was no intention to kill him. No independent witness has been
examined and all the injured witnesses had been very close to
the deceased. In a case, where a very large number of
assailants are there and the incident is over in a short span of c
time, it is not possible for the eye-witnesses to identify au the
accused and give detailed description of participation of each
of them. Thus, evidence of the eye-witnesses cannot be relied
upon. The appeal deserves to be allowed.
4. Per contra, Shri M.T. George, learned counsel D
appearing for the respondent State, has opposed the appeal,
contending that in the facts and circumstances of the case,
provisions of Section 149 IPC have rightly been applied. The
prosecution succeeded irt proving its case by examining five
eye-witnesses, out of them four had been injured witnesses. The E·
medical evidence supports the case of the prosecution. Thus,
the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record. F
6. There is enough evidence on record to establish that
appellants were present, armed with sword stick, choppers,
knife and iron rods. Dr. Girish (PW.18) conducted the
postmortem on the body of Kuttappan (deceased) and
prepared report (Ex. P-14). According to which, the following G
34 injuries were found on his person:
(1) Incised wound 7x1 .5 cm. bone deep sagitally placed
on right side of front of head, 3 c.m. outer to midline and
4 c.m. above eye brow. Frontal bone underneath sowed H.
936 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A fissured fracture 8.5 c.m. long extending to margin of
coronal suture. Subarachnoid bleeding present on both
sides of brain. Gyri of brain flattened and sulci narrowed.
(2) Contused abrasion. 0.5 x 0.5 c.m. on left side of face,
3 cm. in front of ear.
B
(3) Contused abrasion 7.5 x 0.7 c.m. horizontal, on right
side of front of chest, just ouster to midline and 8.5 c.m.
below collar bone.
c (4) Multiple small abrasions over an area 3.5 x 1 c.m. on
back of right elbow.
(5) Contused abrasion 6 x 0.5 c.m. oblique on outer aspect
of right forearm 4 c.m. below elbow.
D (6) Lacerated wound 0.7. x 0.5 c.m. on the front of right
forearm. 10 c.m. below elbow.
(7) Contused abrasion 16 x 2 c.m. obiique on back of right
forearm 1 c.m. above wrist.
(8) Multiple small contused abrasions over an area 4x2cm
on back of right wrist and hand.
(9) Contused abrasion 3x1 cm oblique on the outer aspect
of right elbow.
F
(?10) Contused abrasion 7x2em. Oblique on the outer
aspect of right hip.
(11) Multiple contused abrasions over an area 11 x 4 cm.
On the outer aspect of right thigh 7cm. Above knee.
G
(12) Contused abrasion 2x1 cm on front of right knee.
(13) Multiple small contused abrasions over an a~ea 10 x
8 cm. On back of right leg 3cm. Below Knee.
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 937
KERALA [DR. B.S. CHAUHAN, J.]
(14) Contused abrasion 2.5x1 cm On front of right leg. A
16cm. above ankle.
(15) Contused abrasion 2x1 cm on front of right ankle.
116) Multiple small contused abrasions over an area
30x7cm. on front of left leg, just below Knee. 8
(17) Incised punctured wound 5x2x9 cm. oblique on outer
aspect of left leg 2 cm. below Knee. Upper back end
showed splitting of tissues and other end sharply cut. The
wound was directed downwards. c
(18) Contused abrasion 5.5x1cm. oblique on outer aspect
of left Knee.
(19) Multiple small contused abrasions over an area 20x16
cm. on the front of left thigh and Knee. D
(20) Incised punctured wound 3.5x1x7.5 cm. oblique on
outer aspect of left hip. Upper back end was blunt and
other end sharply cut. The wound was directed
downwards. E
?(21) Abrasion 2 x 1 cm. on the outer aspect of left hip, 2
cm. above injury No.20.
(22) Incised punctured wound 3.5x1 .5 x 1 cm. oblique over
left buttock. The upper inner end was blunt and other end F
sharp. The wound was directed forwards.
(23) Incised wound 1.5 x 0.3x0.5 cm. over left buttock, 2
cm. below injury No.2.
(24) Contused abrasion 11 x2 cm. oblique on right side of G
back of trunk 10 cm. below tip of shoulder blade.
(25) Contused abrasion 2.5x1 cm. oblique on right side
of back of trunk, 2 cm. outer to midline and 5 cm. above
lilac crest. H
938 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A (26) Multiple contused abrasions over an area 24 x 11 cm.
on left side of chest 8 cm. below armpit 8th and 9th ribs ·
underneath showed fracture at their outer angles.
(27) Incised punctured wound 2x0.5 cm. on left side of
8 back of trunk. Inner upper blunt end being 4 cm. below tip
of shoulder blade.
(28) Contused abrasion 1x0.5 cm. on back of left hand,
just above root of middle finger.
c (29) Incised wound 4 x 1 x 0.5 cm. oblique on back of left
wrist.
(30) Incised wound 3x1x0.5 cm. oblique on back of left
forearm 15 cm. below elbow.
D (31) Multiple small abrasions over an area 13x4 cm. on
the front of left forearm just below elbow.
(32) Multiple contused abrasions over an area 25x10 cm.
on back of left arm, just above elbow.
E (33) Abrasion 5x3 cm. on top of left shoulder.
(34) Abrasion 5 x 3 cm. on the tip of penis.
In the opinion of Dr. Girish (PW.18), the injuries were
F caused with the weapons recovered from the appellants and
Kuttappan died of head injury i.e. injury no. 1. as it was sufficient
to cause death.
7. Babu (PW.1) was examined by Dr. C.P. Venugopal
(PW.20) and following injuries were found on his person:
G
(1i Cut injury 10 c.m. x 3 x 1 c.m. on the left thigh -
posterior aspect.
(2) Lacerated injury 6 x 2 x 1.5 c.m. on the back of scalp
left side bleeding.
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 939
KERALA [DR. 8.S. CHAUHAN, J.]
8. Sobhanan (PW.2) son of the deceased was examined A
by Dr. P.R. Anil Kumar (PW.21) and following injuries were
found on his person:
(1) A cut injury in the right elbow.
(2) Lacerated wound frontal to occipital areas of the 8
scalp approximately 20 cm length.
(3) Cut injury on the right thigh and right leg.
(4) Lacerated injury in the left ear.
c
(5) Lacerated injury on the left forearm, right palm and
right forearm and right elbow.
(6) Lacerated injury on the right thigh.
D
(7) Punctured wound in the right thigh and right leg.
(8) Abrasions left and right shoulder.
(9) Swelling left cheek.
E
(10) Fracture mandible left side. Comminuted fracture
left lateral malleious.
(11) Comminuted fracture fibular neck.
(12) Fracture lateral condyle left." F
According to the opinion of Dr. P.R: Anil Kumar (PW.21),
Sobhanan (PW.2) suffered very serious injuries of grave nature
and had a very narrow escape from death.
9. In this factual scenario, Mr. C.N. Sree Kumar has mainly G
argued on the application of the provisions of Section 149 IPC,
contending that all the appellant did not have common object
to cause death of Kuttappan (deceased) and as the seventeen
persons had been involved, it was not possible for the alleged
eye-witnesses to give minute detail about their respective overt H
940 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A act. More so, Sobhanan (PW.2) had become unconscious after
being beaten and regained conscious after two days, thus, it
was not possible for him to see the incident regarding the death
of his father Kuttuppan.
The issue raised hereinabove alongwith other issues
8
particularly that all the witnesses were partisan and no
independent witness was examined; there was no light on the
spot, therefore, the witnesses could not see the incident
properly, recovery effected was not proved properly;
C identification of arms was far from satisfaction; there was lack
of credibility of the version of the prosecution and minor
contradictions in their statements have been properly
considered by the courts below and those factual issues do not
require any further appreciation.
D SECTION 149 IPC: Scope and Object
10. Section 149 IPC has essentially two ingredients viz.
(i) offence committed by any member of an unlawful assembly
consisting five or more members and (ii) such offence must be
E committed in prosecution of the common object (under Section
141 IPC) of the assembly or members of that assembly knew
to be likely to be committed in prosecution of the common
object.
11. For "common object", it is not necessary that there
F should be a prior concert in the sense 'of a meeting of the
members of the unlawful assembly, the common object may
form on spur of the moment; it is enough if it is adopted by all
the members and is shared by all of them. In order that the case
may fall under the first part the offence committed must be
G connected immediately with the common object of the unlawful
assembly of which the accused were members. [Vide: Bhanwar
Singh & Ors. v. State of M.P., (2008) 16 SCC 657)
12. Even if the offence committed is not in direct
H prosecution of the common object of the assembly, it may yet
RAMACHANDRAN & ORS. ETC. v. STATE OF 941
KERALA [DR. B.S. CHAUHAN, J.]
fall under second part of Section 149 IPC if it can be held that A
the offence was such as the members knew was likely to be
committed. The expression 'know' does not mean a mere
possibility, such as might or might not happen. For instance, it
is a matter of common knowledge that if a body of persons go
armed to \ake forcible possession of the land, it would be right B
to say that someone is likely to be killed and all the members
of the unlawful assembly must be aware of that likelihood and
would be guilty under the second part of Section 149 IPC.
13. There may be cases which would come.within the
second part, but not within the first. The distinction between the C
two parts of Section 149 IPC cannot be ignored or obliterated.
[See : Mizaji & Anr. v. State of UP., AIR 1959 SC 572; and
Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC
3633].
D
14. However, once it is established that the unlawful
assembly had common object, it is not necessary that all
persons forming the unlawful assembly must be shown to have
committed some overt act. For the purpose of incurring the
vicarious liability under the provision, the liability of other E
members of the unlawful assembly for the offence committed
during the continuance of the occurrence, rests upon the fact
whether the other members knew before hand that the offence
1
actually committed was likely to be committed in prosecution
•of the common object. [See : Daya Kishan v. State of Haryana, F
(2010) 5 SCC 81; Sikandar Singh v. State of Bihar, (2010) 7
SCC 477, and Debashis Daw v. State of WB., (2010) 9 SCC
111].
15. The crucial question for determination in such a case
is whether the assembly consisted of five or more persons and G
whether the said persons entertained one or more of the
common objects specified by Section 141. While determining
this question, it becomes relevant to consider whether the
1assembly consisted of some persons which were merely
I passive witnesses and had joined the assembly as a matter H
942 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A of idle curiosity without intending to entertain the common
object of the assembly. (Vide: Masalti v. State of Uttar Pradesh,
AIR 1965 SC 202)
16. In KM. Ravi & Ors. v. State of Kamataka, (2009) 16
SC 337, this Court observed that mere presence or
8
association with other members alone does not per se be
sufficient to hold every one of them criminally liable for the
offences committed by the others unless there is sufficient
evidence on record to show that each intended to or knew the
likelihood of commission of such an offending act.
c
17. Similarly in State of U.P. v. Krishanpal & Ors., (2008)
16 SCC 73, this Court held that once a membership of an
unlawful assembly is established it is not incumbent on the
prosecution to establish whether any specific overt act has
o been assigned to any accused. Mere membership of the
unlawful assembly is sufficient and every member of an unlawful
assembly is vicariously liable for the acts done by others either
· in prosecution of common object or members of assembly
knew were likely to be committed.
E
18. In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC
677, this Court opined that for a member of unlawful assembly
having common object what is liable to be seen is as to whether
there was any active participation and the presence of all the
accused persons was with an active mind in furtherance of their
F common object. The law of vicarious liability under Section 149
IPC is crystal clear that even the mere presence in the unlawful
assembly, but with an active mind, to achieve the common
object makes such a person vicariously liable for the acts of
the unlawful assembly.
G
19. Regarding the application of Section 149, the following
observations from Charan Singh v. State of UP., (2004} 4
sec 205, are very relevant:
"13 .... The crucial question to determine is whether the
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 943
KERALA [DR. B.S. CHAUHAN, J.]
assembly consisted of five or more persons and whether A
the said persons entertained one or more of the common
objects, as specified in Section 141 .... The word 'object'
means the purpose or design and, in order to make it
'common', it must be shared by all. In other words, the
object shoul~ be common to the persons, who compose B
the assembly, that is to say, they should all be aware of it
and concur in it. A common object may be formed by
express agreement after mutual consultation, but that is by
no means necessary. It may be formed at any stage by all
or a few members ofthe assembly and the other members c
may just join and adopt it. Once formed, it need not
continue to be the same. It may be modified or altered or
abandoned at any stage. The expression 'in prosecution
of common object' as appearing in Section 149 has to be
strictly construed as equivalent to 'in order to attain the 0
common object'. It must be immediately connected with the
common object by virtue of the nature of the object. There
must be community of object and the object may exist only
up to a particular stage, and not thereafter. ... •
20. In Bhanwar Singh v. State of Madhya Pradesh, (2008) E
16 SCC 657, this Court held:
"Hence, the common object of the unlawful assembly in
question depends firstly on whether such object can be
classified as one of those described in Section 141 IPC. F
Secondly, such common object need not be the product of prior
concert but, as per established law, may form on the spur of
the moment (see also Sukha v. State of Rajasthan AIR 1956
SC 513). Finally, the nature of this common object is a question
of fact to be determined by considering nature of arms, nature G
of the assembly, behaviour of the members, etc. (see also
Rachamreddi Chenna Reddy v. State of A.P. (1999) 3 SCC
97 r.
21. Thus, this court has been very cautious in the catena
of judgments that where general allegations are made against H
944 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A a large number of persons the court would categorically
scrutinise the evidence and hesitate to convict the large number
of persons if the evidence available on record is vague. It is
obligatory on the part of the court to examine that if the offence
committed is not in direct prosecution of the common object, it
B yet may fall under second part of Section 149 IPC, if the offence
was such as the members knew was likely to be com.Jllitted.
Further inference has to be drawn as what was the number of
persons; how many of them were merely passive witnesses;
what were their arms and weapons. Number and nature of
C injuries is also relevant to be considered. "Common objecf' may
also be developed at the time of incident.
22. The trial court after appreciating the entire facts
reached the following conclusion:
D "Further the manner in yvhich the injuries were
inflicted on this witness as deposed by PWs. 2, 3 and 5
will go to show that the intention of accused Nos. 1 to 17
who inflicted the injury on PW.2 was with a common object
to killing him. Further it was also brought out in the
E evidence of these witnesses that all the accused persons
namely 1 to 17 were holding dangerous weapons in their
hands. Further it cannot be said that any of the accused
persons have not involved in committing the offence and
it cannot also be said that they were not aware of the
F consequences of their act or result of the act that is likely
to be resulted on account of the overt act committed by
any one of the member of that assembly. Similarly, the
evidence of PW3 will go to show that all these accused
persons have criminally trespassed into her house and
committed the crime. It is also brought out in evidence that
G
17th accused Sisupalan had beaten on her chest with
hand and also Ext. 3 scene mahazar will go to show that
on account of the act of accused Nos. 1, 8, 12 and 5 the
western door of the house has been broken open and
caused damage to the same. Further some of the vessels
H
RAMACHANDRAN & ORS. ETC. v. STATE OF 945
KERALA [DR. B.S. CHAUHAN, J.]
also damaged in the incident which is spoken to by PW3 A
and that is also evident from the broken piece of wooden
reaper with bold (M.0.10) and also the steel vessel
(M.0:16) will go to show that damage has been caused
to the building of PW3 and also damage to the vessel. It
is also brought out in the evidence of PW3 that the food B
articles were also damaged in the incident. So it cannot
be said that the accused persons who are the members
of the assembly do not know about the consequence of
their act. So it can be safely concluded that accused Nos.
1 to 17 have formed themselves into an unlawful assembly c
for the purpose of rioting with deadly weapons and also
with the common object of causing murder of PW2
Sobhanan, attacked hini with deadly weapons in their
hands and also for the purpose of committing the crime,
they criminally trespassed into the house of PW3 and also D
caused simple injury to her and caused damage to her
house and also the food articles in the house and thereby
all the accused persons name accused Nos. 1 to 17 have
committed the offences punishable under Sections 143,
147, 148, 323, 307, 449 and 427 read with Section 149 E
IPC."
23. The High Court dealt with this issue and held as under:
"The accused persons armed with weapons were waiting
in the house of accused No. 1 for return of PW2 to his F
house through the usual pathway after attending the temple
festival. Even when he tried to escape by entering into the
house of PW3, they followed, chased and inflicted serious
injuries on him at the house of PW3. It is true that he luckily
saved his life. But, when his father and PW1 came hearing G
the cry, they were also assaulted and father of PW2 was
murdered. Yet, the Sessions Court convicted for murder
of the deceased only of the persons participated in that
act which was proved by evidence. Others, namely,
Accused Nos.12, 13, 16 and 17 were convicted only for H
946 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A offences under Sections 143, 147, 148, 323, 307, 449 and
427 IPC read with Section 149 IPC. It was deposed that
A18 was unarmed and no witness has stated his role.
Therefore he was acquitted. Considering the evidence in
this case, the Sessions Court found that accused Nos.1
B to 17 armed with weapons, formed an unlawful assembly
with a common object of attacking PW2 and also they
trespassed into the house of PW3 and brutally attacked
PW2. Even though he suffered serious injuries, he
escaped from death by luck. Common object can develop
c during the course of incident at the spot. ......... The
Sessions court found that even though common object of
the assembly was originally to attack PW2, when hearing
the cry PW1 and the deceased arrived, they were attacked
by some of the persons in the group which attacked PW2.
All of them may not have shared the common object of
D
murdering the deceased. The Sessions Court found that
since Accused Nos.12, 13 and 16 were not attributed to
have caused injury on the deceased, they cannot be held
guilty under Section 302 IPC red with Section 149 IPC as
it cannot be positively inferred that they shared the
E common intention with the others to murder the deceased.
We are of the opinion that A10 and A11 only attacked
PW1 and their involvement with regard to the deceased
is equal to accused Nos. 12 and 13. Similarly, A7 also can
be compared with A12 and 13 as it is not proved beyond
F doubt that they shared the common object to inflict injuries
on the deceased."
24. It is evident from the above that the trial court as well
as the High Court have proceeded in correct perspective and
G applied the provisions of Section 149 IPC correctly. The facts
have properly been analysed and appreciated. In the instant
case, seventeen accused gathered at the residence of
Sudhakaran (A.1) and waited for the appropriate time knowing
it well that Sobhanan (PW.2) would return from the temple.
H Immediately, after seeing him, Sudhakaran (A.1) shouted
RAMACHANDRAN & ORS. ETC. v. STATE OF 947
KERALA [DR. B.S. CHAUHAN, J.]
"chase him, chase him". In order to save his life, he ran away A
and entered into "Sophia Bhawan". However, before he could
enter the house, he was inflicted injury by Sudhakaran (A.1) with
the sword stick. Sobhanan (PW.2) succeeded in entering the
house and closing the door from inside. The accused/
appellants broke open the door and caused injuries of very B
serious nature to Sobhanan (PW.2) and left him under the
impression that he had died. The accused were having one
sword stick, two choppers, one knife and twelve iron rods. All
these weapons were used by the appellants for committing the
offences and causing injuries to their victims. Kuttappan c
(deceased) received as many as 34 injuries. In view thereof, if
all the circumstances are taken into consideration, it cannot be
held that the appellants had not participated to prosecute a
'common object'. Even if it was not so, it had developed at the
time of incident. In view thereof, submission made by the
0
learned counsel for the appellants in respect of applicability of
Section 149 IPC is not worth consideration.
25. We do not find any force in the submission made by the
learned counsel for the appellants that as the number of
accused had been seventeen and the incident was over within E
a very short time, it was not possible for witnesses to give as
detailed description as has been given in this case, and there
had been several contradiction therein, therefore, their evidence
is not reliable. In such a case even if minor contradictions
appeared in the evidence of witnesses, it is to be ignored for F
the reason tha't it is natural that exact version of the incident
revealing any minute detail i.e. meticulous exactitude of
individual acts cannot be expected from the eye-witnesses.
(See: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10
sec 259). G
In this case all the accused were very well known to the
witnesses. So their identification etc. has not been in issue. As
their participation being governed by second part of Section
149 IPC, overt act of an individual lost significance.
H
948 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
'
A 26. However, the courts below have made distinction in two
sets of the accused/appellants and that attained finality as the
State did not prefer any appeal against the same. All appellants
in the second set have been convicted for the offence
punishable under Sections 307/149 IPC etc. and awarded
B sentence of 10 years rigorous imprisonment These appellants
have submitted the certificates of service of sentence rendered
by them. According to the said certificate, these appellants have
served 4-1/2 years to 8 years. All of them have been granted
bail by this Court vide order dated 9.12.2009. In the facts and
C circumstances of the case, their conviction is upheld, however,
the sentence is reduced as undergone. Their bail bonds are
discharged. Appeal of the other appellants stands dismissed.
Subject to the above modification, the appeal stands
disposed of.
D
B.B.B. Appeal disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 149 IPC"Sign in to search