Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.400 of 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

.... Appellant(s)

Versus

MAJEED & ORS. ….Respondent(s)

With

CRIMINAL APPEAL No.661 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

.... Appellant(s)

Versus

SIDDIK & ORS. ….Respondent(s)

And

CRIMINAL APPEAL No.141 OF 2007

STATE OF KERALA .... Appellant(s)

Versus

ABOOBACKER @ ARABI ABOOBACKER & ORS.

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

The Sessions Court, Thrissur convicted A1 to A4, A14,

A15, and A18 under Section 302 read with 149 Indian Penal

Code, 1860 (hereinafter referred to as the ‘ IPC’) and

sentenced them to imprisonment for life. They were also

1

Page 2 convicted for offences under Section 143, 147, 148, 341, 342

and 324/149 IPC. A5 to A13, A16 and A17 were acquitted.

A1 to A4, A14, A15 and A18 who were convicted, filed an

Appeal before the High Court of Kerala. The State of Kerala

and the complainant (father of the deceased) also filed

appeals against the order of acquittal of A5 to A13, A16 and

A17. By way of abundant caution the complainant also filed

a Criminal Revision challenging the acquittal of the said

accused. The judgment of the Trial Court acquitting A5 to

A13, A16 and A17 was confirmed by the High Court. A1 was

convicted under Section 302 and sentenced to imprisonment

for life. A2 and A4 were convicted under Section 324/149

IPC and were sentenced to imprisonment of 1 year. A3, A14,

A15 and A18 were acquitted. A1 filed an appeal before this

Court which abated as he died. The complainant filed an

appeal against the acquittal of A2 to A4, A14, A15 and A18.

He also filed an appeal challenging the acquittal of A5 to A13,

A16 and A17. The State of Kerala also assailed the acquittal

of A2 to A4, A14, A15 and A18 by filing an appeal. It is

relevant to take note of the fact that initially 21 persons were

named as accused. A21 absconded and A19 and A20 died

during the course of trial. A1, A2, A5 and A12 died during

the pendency of the appeals.

2

Page 3 2.The case of the prosecution was that PW-14, a Head

Constable attached to Kunnamkulam Police Station, received

a phone call in the evening on 10.03.1993 that there was a

fight going on at Ottappilavu centre. He along with two

other police men reached the place of the incident and found

a person lying on the road margin on the western side of the

road. As he was unconscious and was bleeding due to

injuries, he was taken to the Government hospital,

Kunnamkulam for treatment in a police jeep. The Doctor

examined him and declared him dead. As the identity of the

deceased was not known, PW 14 kept the body in the

mortuary, went back to the police station and recorded the

details in the General Diary. The First Information

Statement of PW-1 Krishnankutty was recorded at 12:00

midnight on 10.03.1993. He stated that there was a dispute

between people belonging to RSS and CPI (Marxist) party in

connection with the festival at Korattikara Vishnu Bhagwati

Temple. He further stated that at about 08:15 pm on

10.03.1993 when he was walking back home and reached

Ottappilavu centre he saw A2 to A5, A13, A19 and A21 along

with number of others attacking Suresh Babu. He also

stated that Suresh Babu was stabbed to death by A13 and

others. On the basis of the First Information Statement FIR

3

Page 4 No.95 of 1993 was registered at Kunnamkulam Police Station

under Section 143, 147, 148, 341, 324, 302/149 IPC at

12:00 midnight on 10.03.1993 by PW15. Inquest was

conducted between 9:45 am to 12:45 pm by PW15. The

Assistant Professor of Forensic Medicine at Medical College,

Thrissur (PW13) conducted the autopsy immediately

thereafter. The post-mortem certificate referred to 26

injuries on the body of the deceased Suresh Babu and the

cause of death was stated as “the deceased died of multiple

injuries sustained to chest”. The FIR was sent to the

Magistrate in the morning on 11.03.1993.

3.Not satisfied with the investigation, Madhavan (PW12),

the father of the deceased filed a private complaint on

01.04.1994 before the Judicial Magistrate 1

st

Class,

Kunnamkulam. He along with 4 other witnesses was

examined and process was issued to the accused persons.

PW4 Chandran was mentioned as a witness in the complaint.

On 08.09.1994, Madhavan submitted another list of

witnesses in which PW5 and PW6 were included. The cases

of the prosecution and the private complainant were

consolidated. The Sessions Court directed the prosecution to

submit a schedule of witnesses which would include the

witnesses mentioned in the private complaint also. The

4

Page 5 consolidated list of witnesses given by the prosecution

included PW4, PW5 and PW6.

4.After completion of investigation, all the accused were

charged for committing offences under Sections 143, 147,

148, 341, 323 and 302/149 IPC. As stated earlier A19 and

A20 died during the course of trial and A21 absconded. The

other accused pleaded not guilty and were tried for the

aforementioned offences. There were 16 witnesses examined

on behalf of the prosecution and 3 witnesses by the defence.

PW1 Krishnankutty, who was the informant and PW2

Gopinathan who was an eyewitness turned hostile. Likewise,

PW-8 Sulalman, PW9 Ashraf and PW10 Francis who were

attestors to the scene mahazar and seizure of the weapon

also turned hostile. PW11 Kuttikrishan who was the driver

of the bus in which the deceased was travelling also turned

hostile.

5.The testimony of PW3 was examined in detail by the

Trial Court. After considering the submissions on behalf of

the defence, the Trial Court held that the evidence of PW3

Subramanian was consistent, cogent and in conformity with

the prosecution case. The Trial Court held that PW4 was

also a credible witness. According to the Trial Court there

was no material contradiction brought out in the evidence of

5

Page 6 PW5 Balan who was an eyewitness. PW6 Velayudhan was

found to be a doubtful witness and the Trial Court held that

it was not safe to rely on his evidence. The Trial Court

concluded that there was corroboration to the oral testimony

of PW3 to PW5 from the medical evidence. The oral evidence

showed that A1 stabbed on the left side of the back of the

deceased which corresponds to injury No.24. The other stab

injuries inflicted by A1 and A21 as mentioned by the

eyewitness also correspond to the stab injuries in Exh.P-11

(post-mortem certificate). Injury No.24 had the depth of 7.5

c.m. caused by knife which entered the left chest cavity

through the 5

th

intercostal space. It terminated at the upper

part of lower lobe of the left lung. The Doctor opined that

this injury was sufficient in the ordinary course of nature to

cause death. The Trial Court held that A1 had a definite

intention to kill the deceased. Considering the fact that the

other accused continued to beat the deceased with sticks

even after stabbing by A1 and A21, the Trial Court held that

there was a common object of murder on the part of the

accused. A5 to A13, A16 and A17 were acquitted by the Trial

Court as there was no evidence against them. A1 to A4, A14,

A15 and A18 were convicted under Section 302/149 IPC and

sentenced to imprisonment for life.

6

Page 7 6.The appeals filed by the convicted accused, the appeals

filed by the State and the complainant against the acquittal

of some accused were taken up along with the Criminal

Revision filed by the complainant against the acquittal. The

High Court discarded the evidence of PW5 and PW6. The

High Court held that PW3 is a trustworthy witness and

PW4’s evidence can be used for corroboration. Placing

reliance on the evidence of PW3 and PW4, the High Court

upheld the conviction of A1 under Section 302 IPC. The

High Court also held A2 and A4 guilty of an offence

punishable under Section 324/149 IPC by acquitting them of

an offence under Section 302/149 IPC. A3, A14, A15 and

A18 were acquitted for offences under Section 302/149 IPC

by the High Court. The acquittal of other accused A5 to A13,

A16 and A17 recorded by the Trial Court was confirmed by

the High Court. The High Court referred to the remand

report dated 17.03.1993 of the Circle Inspector in which it

was recorded that on 10.03.1993 sympathisers of CPI (M)

were attacked by the followers of BJP at Ottappilavu. In that

incident Moidunny, Ali, Subramannian, Shameer and

Kunhikoya sustained serious injuries and crime No.96 of

1993 in the Kunnamkulam Police Station under Section 143,

147, 148, 323, 324, 307/149 IPC was registered. There were

7

Page 8 three other cases which were registered against the

sympathisers of CPI (M) for incidents that took place at 06:15

pm on the same day. Taking note of the series of clashes on

10.03.1993, the High Court repelled the submission of the

defence about the unexplained delay in filing of the FIR and

the delay in the FIR reaching the Magistrate only on the next

day. The High Court relying upon the judgments of this

Court held that the recovery of weapon not being proved is

not fatal to the prosecution case. The submission made on

behalf of the accused that PW3 and PW4 cannot be believed

on the ground that their conduct was contrary to normal

human behaviour was also rejected on the ground that there

cannot be any straight jacket formula for the reaction of a

person who had witnessed a criminal act. The High Court

relied upon the judgments of this Court in which it was held

that human behaviour is unpredictable and there is no set

rule of natural reaction. The defence witnesses were

disbelieved by the High Court. All the accused except A1, A2

and A4 were acquitted of all the charges against them on the

ground that the prosecution was unable to prove the

common object of the unlawful assembly for the murder of

Suresh Babu.

8

Page 9 7.The complainant filed Criminal Appeal No.400 of 2006

against the acquittal of A2 to A4, A14, A15 and A18. He also

filed Criminal Appeal No.661 of 2006 assailing the acquittal

of A5 to A13, A16 and A17. The State of Kerala has filed

Criminal Appeal No.141 of 2007 challenging the judgment of

the High Court by which A2 to A4, A14, A15 and A18 were

acquitted. A1 also approached this Court by filing an Appeal

against his conviction under Section 302 IPC. However, the

said appeal abated in view of the death of A1. We have heard

Mr.Basant R., learned Senior Counsel for the appellant/

complainant in Criminal Appeal Nos.400 of 2006, Mr. G.

Prakash, Advocate for the State of Kerala in Crl. Appeal No.

141 of 2007 and Mr. Siddharth Luthra, learned Senior

Counsel for the accused. Mr. Basant submitted that the

complainant was compelled to file a private complaint in view

of the perfunctory investigation into the murder of Suresh

Babu. He submitted that there was a consolidation of the

prosecution case and the case filed by the complainant under

Section 210 Cr.P.C. He further submitted that a

consolidated list of witnesses was prepared. According to

the learned Senior Counsel, the High Court committed a

serious error in eschewing the evidence of PW5 from

consideration. He also stated that the evidence of PW4

9

Page 10 should have been relied upon by the High Court instead of

using it only for corroborating the evidence of PW3. He urged

that the High Court erred in holding that the common object

of the accused was not proved. He also argued that

admittedly there was a homicide and A1 was convicted for

causing the death of Suresh Babu. The High Court also

convicted A2 and A4 for offences under Sections 143, 147,

148, 324/149 IPC. He submitted that all the accused are

liable for conviction under Section 302/149 IPC especially

when A2 and A4 were convicted under Section 143, 147, 148,

324/149 IPC and A1 convicted under Section 302 IPC.

Mr.G.Prakash, Advocate, appearing for the State of Kerala

adopted the submissions made by Mr. Basant.

8.Mr. Siddharth Luthra, learned Senior Counsel

appearing for the accused took us through the evidence of

PW4, PW5 and PW6 and submitted that they are all

interested witnesses who deposed at the instance of the

complainant. He submitted that the informant PW1 and

another eyewitness PW2 turned hostile. He stated that the

offence took place on a public road and no independent

eyewitnesses were produced by the prosecution to prove the

case. He further submitted that apart from PW4 no other

witness cited in the private complaint was examined. The

10

Page 11 partisan and interested testimonies of eye witnesses who

belonged to the opposite political party ought not to have

been taken into consideration by the Courts below. He also

commented upon the unnatural behaviour of PW3 and PW4

after the incident. Mr. Luthra finally submitted that the

appeals against acquittal should not be interfered lightly by

this Court. In any event, according to him, when there are

two views possible, the accused should be given the benefit.

9.As stated earlier, A1, A2, A5 and A12 died during the

pendency of the appeals before this Court. The remaining

accused can be categorised into three groups. The first

group consists of A5 to A13, A16 and A17 who were

acquitted both by the Trial Court and the High Court. The

second group consists of A3, A14, A15 and A18 who were

convicted by the Trial Court under Section 302/149 IPC but

acquitted by the High Court. A4 forms the third group

whose conviction under Section 302/149 IPC by the Trial

Court was set aside by the High Court. However, he was

convicted under Section 324/149 IPC and sentenced for a

period of 1 year.

10.PW3, who was an independent witness and was believed

by both the Courts below, gave a vivid description of the

incident. He stated that he was a resident of Ottappilavu

11

Page 12 and that he was acquainted with the deceased Suresh Babu

who was residing about 1 k.m. away from his house. He

deposed that he went to Kunnamkulam to purchase

medicines for his brother who was unwell. He boarded a

stage carriage bus by name Babu bus at Kunnamkulam.

The deceased Suresh Babu was travelling in the same bus.

He stated that when the bus reached Ottappilavu junction,

A1, A2, A4 and A5 entered the bus, pulled Suresh Babu out

of the bus and took him to the front side of the bus and

attacked him. He further stated that A1 inflicted a stab

injury on the back of the left side of the chest of Suresh

Babu. The deceased fell down and A1 inflicted two more stab

injuries. When the deceased was struggling to stand up and

escape the other accused indiscriminately beat him with a

reaper and sticks. He did not alight from the bus and

continued his travel and got down at Chalissery junction.

He stated that he was questioned by the police after two

days. He identified M.O.1 knife used by A1. PW4 was also

an eyewitness to the incident. He stated that A2 to A4, A10,

A13, A14, A15, A18 and A20 attacked the deceased with

sticks and a reaper after A1 and A21 inflicted stab injuries

on the deceased. He stated that his house is situated 2/3

k.m. from the house of the deceased and that he also

12

Page 13 attended the funeral of Suresh Babu. He was cited as a

witness in the private complaint filed by PW12 (appellant).

His statement was recorded by the Magistrate under Section

202 Cr. P.C. PW6 was disbelieved by the Trial Court as well

as by the High Court. The evidence of PW5 disbelieved by

the High Court. The High Court acquitted A3, A14, A15 and

A18 of the charges under Section 302/149 IPC on two

grounds. The first ground was that PW3 did not depose

about their presence and it was only PW4 who stated about

their involvement. The second ground was that there is no

evidence to show that the members of the unlawful assembly

had a common object to cause the death of Suresh Babu.

Modification of the conviction and sentence of A4 from

Section 302/149 IPC to Section 324/149 IPC was on the

ground that A4 who was a member of the unlawful assembly

did not share a common object of causing the death of

Suresh Babu along with A1 and A21.

11.We are of the opinion that the High Court committed a

serious error in not taking into consideration the evidence of

PW4. The finding recorded by the High Court that the

evidence of PW4 can be considered only for the limited

purpose of corroboration of evidence of PW3 is unreasonable

and perverse. After recording a finding that the evidence of

13

Page 14 PW4 cannot be rejected only on the ground that he was not

questioned by the police, the High Court proceeded to hold

that the evidence of PW4 can be used only for corroboration

of PW3’s evidence. Unlike PW5 and PW6 who were cited as

witnesses in the second list of witnesses given by the

complainant five months after filing of the complaint, PW4

was named as a witness in the complaint. Further, his

statement was recorded by the Magistrate under Section 202

Cr. P.C. There was a consolidated list of witnesses given by

the prosecution. The High Court has not given any reason as

to why the evidence of PW4 can be used only for

corroboration. On a careful examination of the evidence of

PW4 we are of the considered opinion that the Trial Court

was right in relying upon his testimony and the High Court

was not correct in holding that it can be used only for

corroboration of PW3’s evidence. The finding of the High

Court that A3, A14, A15 and A18 are entitled for acquittal on

the basis that PW3 did not speak about their presence is

liable to be set aside as PW4 had categorically mentioned

about their involvement.

12.The High Court held that the accused were not aware

that the deceased was travelling in the bus and there is no

evidence to show that they formed an unlawful assembly

14

Page 15 with a view to attack and commit his murder. The High

Court referred to the clash between the supporters of CPI (M)

and BJP workers on 10.03.1993. The High Court held that

the deceased was attacked due to political rivalry but there is

no evidence to show that the members of the unlawful

assembly had a common object to commit his murder. The

High Court also found that A1 and A21 alone inflicted stab

injuries and the other members of the unlawful assembly

who caused injuries on the non vital parts cannot be said to

have shared the common object of causing the death of

Suresh Babu. The common object of the unlawful assembly

can be gathered from the nature of the assembly, arms used

by them and the behaviour of the assembly at or before the

scene of occurrence. It is an inference to be deduced from

the fact and circumstances of the case (See Lalji v. State of

U.P., (1989) 1 SCC 437 ¶8). It is also settled law that the

mere presence in the unlawful assembly may vicariously

fasten criminal liability under Section 149 IPC (See. State of

UP v. Dan Singh (1997) 3 SCC 747).

13.We are not in agreement with the High Court regarding

the absence of common object of the A3, A4, A14, A15 and

A18. The evidence on record shows that the deceased and

accused belong to two political parties opposed to each other.

15

Page 16 There were three other incidents of clashes between the rival

groups. The existence of a CPI (M) office at Ottappilavu

junction is proved by a sketch of the site of the incident. The

accused along with others assembled and were searching for

BJP workers travelling in the buses that were passing

through the junction. We do not agree with the finding of the

High Court that merely because the accused did not plan to

murder Suresh Babu (deceased), there was no common

object. The common object of the members of the unlawful

assembly was to attack any BJP supporter who was passing

through Ottappilavu junction. Unfortunately, Suresh Babu

was in the bus and he was killed in the attack.

14.Justice V. R. Krishna Iyer in Shivaji Sahabrao Bobade

v. State of Maharashtra, (1973) 2 SCC 793 ¶ 6 held as

follows:

“The evil of acquitting a guilty person light heartedly as

a learned Author [Glanville Williams in ‘Proof of Guilt’.]

has sapiently observed, goes much beyond the simple

fact that just one guilty person has gone unpunished. If

unmerited acquittals become general, they tend to lead

to a cynical disregard of the law, and this in turn leads

to a public demand for harsher legal presumptions

against indicted “persons” and more severe punishment

of those who are found guilty. Thus, too frequent

acquittals of the guilty may lead to a ferocious penal

law, eventually eroding the judicial protection of the

guiltless. For all these reasons it is true to say, with

Viscount Simon, that “a miscarriage of justice may

arise from the acquittal of the guilty no less than from

the conviction of the innocent.…” In short, our

jurisprudential enthusiasm for presumed innocence

16

Page 17 must be moderated by the pragmatic need to make

criminal justice potent and realistic.”

The point that remains to be considered is whether A3, A4,

A14, A15 and A18 are liable to be convicted under Section

302/149 IPC. Taking into account the fact that the incident

occurred in the year 1993, that they attacked the deceased

with sticks causing simple injuries on non-vital parts, their

conviction under Section 326/149 IPC will meet the ends of

justice. The Trial Court convicted A4 under Section 324/149

IPC and sentenced for imprisonment for 2 years along with

his conviction under Section 302/149 IPC. The High Court

acquitted A4 under Section 302/149 IPC and reduced the

sentence under Section 324/149 IPC to 1 year. A4 was

separated from A3, A14, A15 and A18 only on the ground

that PW3 spoke about his presence. Otherwise, the role

ascribed to A4 is the same as that of A3, A14, A15 and A18.

In the result A3 Majeed, A4 Ummer alias Podi Ummer, A14

Balaji, A15 Muraleedharan and A18 Hasheem alias

Muhammed Hasheem are sentenced to 7 years imprisonment

under Section 326/149 IPC. They shall surrender within 4

weeks to serve the sentence. Criminal Appeal No. 661 of

2006 filed by the complainant against the acquittal of A5

Siddik, A6 Asharaf, A7 Sundaran, A8 Rajan, A9 Monutty

17

Page 18 alias Dharmarajan, A10 Kunhippa, A11 Kunhimon, A13

Sathyan, A16 Shaji Alias Kuttamon and A17 Kurukkal

Rassak is dismissed. Criminal Appeal No. 400 of 2006 and

141 of 2007 filed by the complainant and State respectively

against the acquittal of A3 Majeed, A4 Ummer alias Podi

Ummer, A14 Balaji, A15 Muralledharan and A18 Hasheem

alias Muhammed Hasheem are allowed.

..……................................J

[S. A. BOBDE]

..……................................J

[L. NAGESWARA RAO]

New Delhi,

March 30, 2017

18

Page 19 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.400 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

...APPELLANT(S)

VERSUS

MAJEED & ORS.

...RESPONDENT(S)

WITH

CRIMINAL APPEAL No.661 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

...APPELLANT(S)

VERSUS

SIDDIK & ORS.

...RESPONDENT(S)

WITH

CRIMINAL APPEAL No.141 OF 2007

STATE OF KERALA …..APPELLANT(S)

VERSUS

ABOOBACKER @ ARABI ABOOBACKER & ORS.

...RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

I am in complete agreement with my learned brother

Nageswara Rao J. I would, however, like to deal with one

submission made at the bar in relation to the culpability of an

accused participating in an unlawful assembly in general, and

that of A4 Ummer alias Podi Ummer in particular. It has been

argued on behalf of A4 that his mere presence in the unlawful

19

Page 20 assembly could not be inculpatory since none of the witnesses

attributed an overt act to the accused. Such a submission

without any concrete evidence enabling the Court to infer that

the accused did not in fact harbor the same intention as that of

the unlawful assembly, cannot be accepted.

In the first place, the presence of an accused as part of

an unlawful assembly, when not as a curious onlooker or a

bystander, suggests his participation in the object of the

assembly. When the prosecution establishes such presence,

then it is the conduct of the accused that would determine

whether he continued to participate in the unlawful assembly

with the intention to fulfill the object of the assembly, or not.

It could well be that an accused had no intention to participate

in the object of the assembly. For example, if the object of the

assembly is to murder someone, it is possible that the accused

as a particular member of the assembly had no knowledge of

the intention of the other members whose object was to

murder, unless of course the evidence to the contrary shows

such knowledge. But having participated and gone along with

the others, an inference whether inculpatory or exculpatory can

be drawn from the conduct of such an accused. The following

questions arise with regard to the conduct of such an accused:-

1. What was the point of time at which he discovered

that the assembly intended to kill the victim?

2. Having discovered that, did he make any attempt

to stop the assembly from pursuing the object?

20

Page 21 3. If he did, and failed, did he dissociate himself from

the assembly by getting away?

The answer to these questions would determine whether

an accused shared the common object in the assembly.

Without evidence that the accused had no knowledge of the

unlawful object of the assembly or without evidence that after

having gained knowledge, he attempted to prevent the

assembly from accomplishing the unlawful object, and without

evidence that after having failed to do so, the accused

disassociated himself from the assembly, the mere participation

of an accused in such an assembly would be inculpatory.

In the case of A4, there is no such evidence on record

that having participated in the unlawful assembly which

resulted in the death of Suresh Babu, he made any attempt to

either stop the incident from taking place, or having found out

that he could not prevent it, dissociated himself from the

assembly.

Therefore, he must be held liable under Section 326/149

of the Indian Penal Code.

.....................………J.

[ S.A. BOBDE ]

NEW DELHI,

MARCH 30, 2017

21

Page 22 22