http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  584-585 of 2002

PETITIONER: Hamlet @ Sasi & Ors.             

RESPONDENT: Vs. State of Kerala                                  

DATE OF JUDGMENT: 21/08/2003

BENCH: N.Santosh Hegde & B.P.Singh.     

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

These criminal appeals are filed by the convicted  accused persons against the judgment of the High Court of  Kerala at Ernakulam dated 7th November, 2001 whereby  the High Court confirmed the sentence imposed on these  appellants by the trial court under Sections 302 and 324  read with Section 149 IPC. Since particulars of the  punishment imposed on other accused is not relevant for  the purpose of considering these appeals, we will not  advert to it unless necessary in any particular context. The  appellants before us are A-1 to A-3 before the trial court.    The prosecution case is that Yugine @ Sajiv and  others, some of whom were prosecution witnesses in this  case, were active followers of the Indian National Congress  Party. The accused were stated to be followers of  Communist Party of India (Marxist). It is stated that at  about 3 p.m. on 1.10.1991, 44 accused entered into a  criminal conspiracy to commit the murder of Yugine  (deceased), Jose (PW-2) and others as also to commit  dacoity and mischief in the houses of the followers of  Congress-I. In pursuance of that common object, at about 4  p.m. on 1.10.1991 the accused formed themselves into  members of an unlawful assembly, armed with deadly  weapons. It is alleged that they chased deceased Yugine  and PW-2 who were returning from the shop of PW-15  situated at Anjuthengu on a public road. In that process at a  place near Manjamoodu junction A-1 to A-4, A-24 and five  others wrongfully confined the deceased and PW-2 from  proceeding in any direction. The prosecution further  alleges that the 1st  accused caught hold of Yugine by his  waist, lifted him up and threw him on the ground.  Thereafter, he kicked the deceased on the stomach and A-2  and another accused beat the deceased with iron bar, while  A-3, A-4 and two others beat the deceased and PW-2 with  Oars. The prosecution alleges that PW-1, brother of the  deceased, came running to the place of occurrence and he  was also beaten up by the accused. Subsequently, A-5 to  A-7, A-9 and A-10 to A-23 and other accused joined in  attacking the deceased and PW-2. The further case of the  prosecution is that A-6, A-7 and four other persons  attacked PW-4 and inflicted injuries on him with an  intention to kill him.  The prosecution also alleges that the  accused persons trespassed into the houses of certain  prosecution witnesses and committed robbery.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

After the said attack the deceased, PW-2 and PW-4  were taken to the Taluka Head Quarters Hospital and from  there to Medical College Hospital, Trivandrum. While  undergoing treatment, Yugine succumbed to the injuries at  11.20 p.m. on 1.10.1991. In the meanwhile, PW-1 at about  4 p.m. had lodged a complaint Ext.P-1 in the Police Station  which was registered for offences punishable under  Sections 143, 147, 148, 120-B, 450, 451, 452, 342, 359,  397, 427, 323, 324, and 307 IPC. After investigation a final  report was filed by the police against 44 persons when  offence under Section 302 read with Section 149 was  included. Out of these 44 accused, A-25, A-26 and A-37  died and out of the other accused persons mentioned in the  final report only 24 persons were tried by the trial court,  therefore, those persons against whom the trial could not  proceed were treated as "other accused persons". The learned IInd Additional Sessions Judge,  Thiruvananthapuram acquitted A-5, A-9, A-10 and A-17  while he convicted A-1 to A-4, A-6, A-7 and A-24 for  offences punishable under Sections 143, 147, 148, 342,  427, 450, 451, 452, 461, 395, 397, 324, 307 and 302 IPC  read with Section 149 IPC. He sentenced all these accused  persons to undergo rigorous imprisonment for various  terms and for various offences while for the offence  punishable under Section 302 he directed the said accused  to undergo imprisonment for life.  As stated above, in an appeal filed by the convicted  accused persons the High Court while confirming the  sentence imposed on A-1 to A-4 under Section 302 as well  as under Sections 143, 147, 148 and 324 acquitted A-6 and  A-7 of the offence punishable under Section 302 but  convicted them of an offence punishable under Section 324  IPC. So far as A-24 is concerned he was acquitted of all the  charges. It is against the said judgment of the High Court, 4  appellants are before us who have been convicted of an  offence punishable under Section 302 read with Section  149 IPC and for certain other offences. Shri Sanjay Parikh, learned counsel appearing for the  appellants contended that the High Court having rightly  disbelieved the prosecution case in regard to the attack on  PW-4, as also the prosecution case against other acquitted  accused, the High Court ought to have extended the said  benefit of doubt to the appellants also. He also contended  that even according to the finding of the High Court the  prosecution has been able to establish the overt act of only  4 accused in regard to the assault on the deceased,  therefore, the High Court fell in error in convicting the  accused persons with the aid of Section 149 IPC because  the number of people identified by the High Court in  regard to the assault on the deceased was less than 5 as  required under Section 141 of IPC. Hence, in the absence  of any material to show that apart from these appellants  there were some more accused who formed the unlawful  assembly, the High Court could not have convicted the  appellants for a charge under Section 302 with the aid of  Section 149 IPC. He, of course, also attacked the evidence  led by the prosecution in regard to the incident itself which  according to him was full of contradictions and  improbabilities. Alternatively the learned counsel argued  that even assuming that the prosecution has been able to  establish the attack on the deceased by these appellants, the  nature of injuries suffered by the deceased were such that  these appellants can not be attributed with the intention to  kill the deceased nor could they be held to have had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

knowledge that the injuries caused by them in the ordinary  course would lead to Yugine’s death, hence, at the most the  appellants can be held guilty of an offence under Section  324 IPC.  Shri John Mathew, learned counsel appearing for the  respondent-State supported the impugned judgment and  contended that from the material produced by the  prosecution, it is clear that Accused 1 to 4, 6, 7 and 24  along with 5 other persons had attacked the deceased with  iron rods etc. and some of the injuries suffered by the  deceased were such as would cause death in the ordinary  course. Therefore, assuming that the High Court was  justified in acquitting A-6, A-7 and A-24 of the offence  punishable under Section 302, still it could be seen from  the finding of the High Court that A-1 to A-4 and 5 others  had attacked the deceased, therefore, Section 149 is rightly  relied on the High Court to convict the appellants. He  submitted that because of the political rivalry between the  two groups of people, deceased Yugine was done to death  and the nature of injuries would clearly show the intention  of the accused was to commit murder, therefore, the  conviction under Section 302 read with Section 149 was  justified. We do notice that both the courts below have rejected  the prosecution case of conspiracy punishable under  Section 120-B of IPC. The High Court has also found that  the prosecution has not established its case under Section  307, 395 etc. We also notice that the High Court has  specifically come to the conclusion that A-5, A-6 and A-24  were not the members of the unlawful assembly the object  of which was to commit the murder of the deceased.  Therefore, bearing in mind the argument of the learned  counsel for the appellants, we will examine the evidence on  record as also the findings of the two courts below. The  trial court in this regard came to the following conclusion :  "It is further found that the death of the  deceased was caused by A1, A2, A3 A4, A6,  A7 and A24. After discussing points No.17,  18 & 19, I have found that A1, A2, A3, A4,  A6, A7 and A24 committed the aforesaid  acts in furtherance of their common object.  Even though the presence of other accused  persons at the scene of occurrence was  spoken to by PW-1, specific overt acts are  alleged only against A1, A2, A3, A4, A6,  A7 and A24 in committing the aforesaid  acts."

Based on this finding the trial court convicted the said  accused of an offence punishable under Section 302 read  with Section 149 among some other offences.  From the above finding of the trial court, we notice  that the members of the unlawful assembly were identified  by their individual overt acts and not by their mere  presence. On this basis, according to the learned Sessions  Judge, the unlawful assembly which attacked the deceased  and which had the common object of committing the  murder of the deceased consisted only of A-1 to A-4, A-6,  A-7 and A-24, that is, an assembly of 7 members. Whereas  the High Court in regard to the persons who constituted the  unlawful assembly to attack the deceased held thus in its  judgment :  "So the finding of the learned  Sessions Judge that the prosecution has  succeeded in establishing that A1 to A4 are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

guilty of the offences under Section 302  read with Section 149 of the Indian Penal  Code is correct and is confirmed. But there  is no evidence to hold that A6, A7 and A24  also inflicted any injuries on Yugine or they  were aware that common object of the  unlawful assembly is to eliminate Yugine or  there is likelihood to commit such offence."  

From the above observations of the High Court, we  notice that even the High Court proceeded on the basis of  accepting the prosecution case as to the members of the  unlawful assembly only based on the overt act of the  accused persons and not by their presence. It is in this  process the High Court found that the prosecution has not  established that A-6, A-7 and A-24 had inflicted any injury  on Yugine, therefore, it held that these three accused  persons were not members of the unlawful assembly.  Consequence of such a conclusion of the High Court would  be that it is only A-1 to A-4 who attacked the deceased,  therefore, they alone can be found to be members of the  unlawful assembly and none other. However, without  elaborating any further on the prosecution evidence and  without naming or identifying or even coming to a final  conclusion that there were persons other than A-1 to A-4  who together formed the unlawful assembly with the  common object of committing the murder of the deceased.  The High Court came to the following conclusion :  "We have already found that the  evidence adduced only proves the identity of  A1 to A4 as members of unlawful assembly.  So we hold that the prosecution has  succeeded in establishing that an unlawful  assembly was formed at 4 p.m. on 1.10.1996  and A1 to A4 were members of that  unlawful assembly. The evidence also shows  that they were armed with deadly weapons  and committed the offence of rioting. So the  finding of the learned Sessions Judge that  A1 to A4 are guilty of the offences  punishable under Sections 143, 147 and 148  of the Indian Penal Code is correct and  confirmedâ\200¦â\200¦â\200¦. But the finding of the  court below that A6, A7 and A24 are guilty  of the offences under Sections 143, 147 and  148 of Indian penal Code are set aside and  they are acquitted of that offences."

From the above, we find an element of contradiction  in the judgment of the High Court in regard to its  conclusion as to who were the members of the unlawful  assembly, while in an earlier part of the judgment it did  observe that A-1 to A-4 and five others attacked the  deceased, later on, while coming to the conclusion as to  who were the members of the unlawful assembly the High  Court rests satisfied with A-1 to A-4 alone as being  members of the unlawful assembly. If that be so, we think  the High Court was not justified in invoking Section 149 to  convict the appellants of an offence under Section 302  because the said number falls short of the minimum  number required to form an unlawful assembly under  Section 141 IPC. It is true that this Court in any number of  cases has held that there can be an unlawful assembly of  less than five named accused so long as there is material to  come to the conclusion that the prosecution has established

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

that apart from these named accused there were also others  who were unnamed but who were members of such  assembly and shared the common object of that unlawful  assembly. In the instant case it is true that originally the  complaint stated that about 50 persons formed unlawful  assembly, that number came down to 44 when the final  report of the investigating was filed before the trial court  out of which only 24 persons were brought to trial. Out of  these 24 accused, the Sessions Judge came to the specific  conclusion that only A-1 to A-4, A-6, A-7 and A-24  together formed an unlawful assembly which would  number seven in total, while the High Court came to the  conclusion that out of these seven persons three accused  namely A-6, A-7 and A-24 could not have been the  members of the unlawful assembly thus leaving only A-1  to A-4 as the members of the unlawful assembly.  Therefore, in the absence of a specific finding that there  were other members also in the said unlawful assembly, the  invocation of Section 149 will be untenable. Learned  counsel for the State contended that it is the prosecution  case that apart from the appellants and others accused there  were other persons also who formed the unlawful assembly  and finding of the trial court that only seven members   formed the unlawful assembly was erroneous. Similarly, he  contended that the High Court also  committed an error in  holding that A-6, A-7 and A-24 were not the members of  the unlawful assembly, therefore, we should consider the  prosecution case de hors the findings of the courts below  and only in the background of the complaint and evidence  produced in this case which would indicate that apart from  these four accused even Accused 6, 7 and 24 and many  others were members of the unlawful assembly. We cannot  accede to this request of the learned counsel for the  respondent-State because all other accused except A-1 to  A-4 have been acquitted by either the trial court or the  High Court and there is no appeal against their acquittal,  therefore, the question of re-appreciation of the evidence in  these cases as against the acquitted persons does not arise  at all at this stage even for the limited purpose of finding  out whether A-1 to A-4 were members of an unlawful  assembly as required under Section 141 IPC.      The learned counsel for the State then pointed out  from the judgment of the High Court that it had come to  the conclusion that it is A-1 to A-4 and five others who  were involved in the attack on Yugine, therefore, we  should proceed on the basis that apart from A-1 to A-4  there were five others who were also members of the  unlawful assembly. We are unable to accept this argument  because though from the judgment of the High Court we  notice that there is an observation of the High Court that A- 1 to A-4 and five others were involved, this was only an  observation and not a finding of the High Court. The  finding of the High Court in regard to the members of the  unlawful assembly is found in that part of the judgment  which is extracted by us herein above wherein the High  Court came to a definite conclusion that so far as the attack  on the deceased is concerned it is only A-1 to A-4 who  were the members of the unlawful assembly. To fortify this  conclusion of ours at the cost of repetition, we once again  extract that part of the judgment which runs as follows :  "We have already found that the  evidence adduced only proves the identity of  A-1 to A-4 as members of unlawful  assembly. So we hold that the prosecution  has succeeded in establishing that an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

unlawful assembly was formed at 4 p.m. on  1.10.1996 and A-1 to A-4 were members of  that unlawful assembly."  

From the reading of this part of the judgment of the  High Court, we find that the High Court has confined the  members of the unlawful assembly only to A-1 to A-4.  Therefore, we can not accede to the argument of the learned  counsel for the respondent-State. In that view of the matter,  we cannot accept the finding of the High Court that A-1 to  A-4 can be found guilty of an offence punishable under  Section 302 read with Section 149 IPC.  The question then would be : Will the appellants be  entitled to an acquittal of the charge under Section 302  because the prosecution has failed to prove that the  unlawful assembly did contain more than five persons  entertaining the same common object ? This Court in Nethala Pothuraju vs. State of Andhra  Pradesh (1992 1 SCC 49) has held that the non  applicability of Section 149 IPC is no bar in convicting the  accused under section 302 read with Section 34 IPC if the  evidence discloses commission of an offence in furtherance  of the common intention of such accused. This is because  both Sections 149 and 34 IPC deal with a combination of  persons who become liable to be punished as sharers in the  commission of offences. Therefore, in cases where the  prosecution is unable to prove the number of members of  the unlawful assembly to be five or more, courts can  convict the guilty persons with the aid of Section 34 IPC  provided that there is evidence on record to show such  accused shared the common intention to commit the crime.  While doing so the courts will have to bear in mind the  requirement of Section 34. It is well known that to  establish the common intention of several persons to attract  Section 34 of the IPC the following two fundamental facts  have to be established â\200\223 (i) common intention (ii)  participation of the accused in commission of the offences.  If the above two ingredients are satisfied even overt act on  the part of some of the persons sharing in the common  intention is not necessary. [See: Jai Bhagwan & Ors. vs.  State of Haryana (1999 3 SCC 102)]. Bearing in mind the  above principles and applying the same to the facts of the  present case, we notice that on the date of incident a large  number of people, which included A-1 to A-4 came in a  group which the prosecution alleged had the object of  causing the murder of the deceased and to assault PW-2  and PW-4 among other illegal intentions. Of course, the  prosecution has failed to establish many of these charges.  However, from the facts of this case it proved atleast that  A-1 to A-4 formed a separate group and targeted the  deceased and PW-2 against whom there was a specific  motive for these appellants to attack him. The prosecution  has also proved in that attack the deceased died and PW-2  suffered injuries. The question then is: What was the  common intention of these persons in attacking the  deceased ? While the learned counsel for the appellants  contended that the common intention at the most was only  to cause hurt, while the learned counsel for the respondent- State vehemently submitted that it was to cause the death  of Yugine and grievous hurt to PW-2. In this context, if we  examine the prosecution case, we notice that A-1 caught  hold of the deceased by his waist and threw him on the  ground causing him grievous injuries on the back side of  his head and thereafter A-1 assaulted the deceased by  kicking him on various parts of the body and A-2 to A-4  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

attacked him with iron rods and Oars which caused among  other injuries, a lacerated wound on the neck of the right  elbow leading to fractures of the humorous, a contusion on  the left ankle leading to fracture of the fibula, apart from  nearly 12 other injuries on different parts of the body.  Consequent to the throw deceased suffered a head injury  because of which there was cerebral bleeding. The  participation of these accused persons in the assault of the  deceased even after he was thrown down to the ground by  A-1 clearly shows that the further attack by A-2 to A-4 was  in furtherance of a common intention they shared with A-1,  therefore, in our opinion, Section 34 is clearly attracted to  the facts of this case.            But then the question would be: What was the  common intention shared by these accused persons in the  attack on the deceased ? While the learned counsel for the  appellant contended that from the nature of injuries and the  manner in which the assault was committed, it could be  nothing more than to cause hurt to the deceased, whereas  the learned counsel for the State contended that it is clear  from the injury No.4 suffered on the head of the deceased  that all these persons had the knowledge that by such  injuries, the victim would suffer death in the normal  course, but in spite of the same, all these accused  proceeded to attack the deceased, causing more injuries,  which would show that each one of these persons had acted  in furtherance of a common intention to cause death of the  deceased. We have noted that the medical report showed that  the deceased has suffered about 14 injuries out of which  injury Nos.1 and 2 caused fractures and injury No.4 was a  head injury leading to subdural haemorrhage on the left  part of the temporal lobe which seems to be the most  serious of all wounds which ultimately led to the Yugine’s  death. After examining the entire prosecution evidence, we  notice none of these accused used any deadly weapon  carried by them on any vital part of the body like the head.  Injury No.4 which led to the death of the deceased was  caused by the fall caused by A-1. It is very difficult to  come to the conclusion if really A-1 had the intention to  kill Yugine, he would have only thrown him to the ground  without attacking him the iron rod available to him to be  used. The fact that he only kicked the deceased after the  fall also supports this inference of ours. Similarly, even  according to the prosecution A-2 to A-4 used the iron rods  and oars to hit the deceased on his limbs only and not on  any vital part of the body. All these facts show that these  appellants did share a common intention, the same was  only to cause grievous hurt to the deceased and not to  cause his death. Therefore, we are of the opinion that the High Court  was wrong in convicting the appellants for an offence  punishable under Section 302 read with Section 149 IPC.  We, however, find the appellants guilty of causing grievous  hurt by dangerous weapons punishable under Section 326  read with Section 34 IPC. We sentence these appellants for  the said offence to undergo rigorous imprisonment for 7  years and further impose a fine of Rs.1,000/- each, in  default, the appellants shall undergo simple imprisonment  for a further period of one month each. The High Court has also convicted the appellants  herein for an offence punishable under section 324 read  with Section 149 IPC and has awarded 2 years’ RI on this  count to the appellants. We alter this conviction also to one  under Section 324 read with Section 34 IPC, and maintain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

the same sentence awarded by the High Court for the said  offence under Section 324. We direct the sentences  imposed by us to run concurrently, and the appellants shall  be entitled to remission of the sentence for the period  already undergone, if any. The appeals are allowed partly.