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PETITIONER: KOTTA PRAKASHAN & ORS.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       11/12/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K.MUKHERJEE,J.      Fourteen persons  were tried  by  the  Sessions  Judge, Thalassery for  rioting, criminal trespass, murder and other cognate offences.  The trial  ended in an order of acqulttal of four of them and conviction and sentence of the other ten under Sections  143,147,447,427,324,326 and  302  read  with Section 149  I.P.C. Against  their convictions and sentences the ten  convicts filed  separate appeals in the High Court. While disposing  of the  appeals by  a common  judgment, the High  Court   acquitted  five   of  them,   but  upheld  the convictions and  sentences of  the  five  appellants  before us(who were arrayed as A1,A4,A6,A7 AND A8 in the trial Court and hereinafter will be so referred to). 2.   Briefly stated, the prosecution case is as under:- (a) Vishwanathan (the deceased) was a member of the Rashtrya Sewak  Sangh   (RSS)  whereas   the   appellants   are   the sympathisers of  the Communist  Party (Marxist),(CPM). These two parties  have a  long standing  political rivalry and it has percolated  down to  students of some schools. On August 3, 1989,  around 9  A.M a  group of  students  belonging  to Kerala  Students  Union,  (KSU)  and  Akhil  Bhartiya  Vidya Parishad (ABVP)  (which own allegiance to RSS) of Government High School,  Aroli in Pappinissery, resorted to strike as a mark of  protest against  the inadequate facilities given to the students  of the  local Government  Engineering College. Another group  of students, who were sympathisers of CPM and members of its students’wing, namely the Students Federation of India  (SFI), resisted  the strike. Over that issue there was an  exchange of  blows between the two groups. Following the rumpus,  some outsiders  belonging to  CPM including the appellants, cane to the school compound and beat some of the students belonging to ABVP. (b)   A  little later  Vishwanathan (the  deceased), a local leader of  RSS, along with Kauprath Rajesh(P.W.5) came there and openly  gave out  that  if  any  body  dared  to  attack students of  ABVP he  would be taught a good lesson and then left the  place. Muralidharan  (P.W.2), Pramod  (P.W.3)  and some  other  students  of  their  group  then  proceeded  to Keecheri Hills  where RSS  have a  Sakha,(a place  where RSS

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workers meet  for their  organisational activities).  On the way they  met Rajendran and Jayarajan (P.W.4), two other RSS workers, who  also accompanied  them. When,  reaching there, they were  discussing with Vishwanathan and Rajesh about the necessity  of   taking  the  injured  to  the  hospital  for treatment, a mob of 15/20 persons, including the appellants, cane there  armed with daggers, sticks, iron rods and stones and attacked  them. On  being so attacked they ran for their life in  different directions.  While P.W.4  rushed into the house of  Santha (P.W.6),  which is near the Sakha, deceased Viswanathan,  P.W.2   and  Rajendran  took  shelter  in  the neighbouring  house   of  Parvathi  (P.W.7)  and  Kunhiraman (P.W.8). The other RSS workers escaped to the nearby jungle. In chasing  them the  riotous mob came to the house of P.W.7 and surrounded  it. The  mob  then  started  pelting  stones towards and  hammering and  windows of  the house. Probably, realising that  it was not safe to remain there Vishwanathan opened the  door and  ran for  his life. The mob then chased Vishwanathan who,  finding no other alternative, entered the house of  one Kumaran,  which was  at a  distance of  half a kilometre from the house of P.Ws.7 & 8. The mob followed him there and  after killing  him brutally  disappeared from the scene. (c)   Ashraf  (P.W.1), a resident of the neighbourhood, went to Valapattanam Police Station and lodged a report about the incident.  On   that  report   a  case   was  registered  by S.I.Domminic (P.W.19),  against unkown  members of CPM, Shri P.Jayaraj (P.W.21),  Circle Inspector  of  Police,  took  up investigation of  the case  and first  went to  the house of Kumaran, held inquest over the dead body of Vishwanathan and sent it  for post  mortem examination.  After completion  of investigation he  initially submitted a charge sheet against eight of  the accused  persons and  thereafter supplementary charge sheets against the other six. 3.     The   appellants  denied  their  involvement  in  the offences alleged  and contended  that they  had been falsely implicated due to political rivalry. 4.   In support  of its case the prosecution examined twenty one witnesses  and defence one. Of the witnesses examined by the   prosecution,    Ashraf   (P.W.1),    Santha   (P.W.6), Smt.Parvathi (P.W.7),  Kunhiraman  (P.W.8)    and  Smt.Sudha (P.W.9), daughter  of Kumaran,  in whose  house Vishwanathan ultimately met  with his  death, turned  hostile and did not support its  case. The  prosecution, therefore,  rested  its case upon  the evidence  of  Muraleedharan  (P.W.2),  Pramod (P.W.3),  Jayarajan   (P.W.4),  Rajesh  (P.W.5)  and  Prasad (P.W.13) to  prove the incident and the participation of the persons arraigned in it. 5.   On a detailed discussion of the evidence adduced during trial, Including  that of  Unnikrishnan (D.W.1),  the  trial Court recorded the following findings:- (i)  In the  morning of  August 3,  1989 there  was a fracas      between the  students of  the  two  rival  groups,  one      owning allegiance  to RSS  and the  other to CPM in the      Government High  School, Aroli  in which some outsiders      belonging to the latter took sides; (ii) on   hearing    about   the   incident   the   deceased      Vishwanathan, a  leader of  RSS, came to the school and      hurled threats  and abuses  on the  sympathisers of the      rival group; (iii)  a  few  hours  later  when  Vishwanathan  along  with      P.Ws.2,3,4,5 and  some other students of the school and      one Rajendran  were confabulating at their Sakha, 15/20      CPM  workers,   armed  with  deadly  weapons  including      daggers, sticks,  iron rods  and stones, came there and

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    attacked them.  Owing to  such attack  P.W.4  sustained      grievous injuries, including fracture of the left upper      incisor and  left canine,  and P.Ws  3,5 and  Rajendran      sustained simple injuries; (iv) on being  so  attacked  when  Vishwanathan,  P.W.2  and      Rajendran took shelter in the nearby house of P.W.7 the      mob trespassed  there and  started pelting  stones  and      breaking the  doors and  windows to compel them to come      out of the house; (V)  when apprehending  danger  to  his  life,  Vishwanathan      darted out  of the  house of  P.W.7 and took shelter in      the house of kumaran, the mob chased him there and beat      him mercilessly  causing  sixty  two  bodily  injuries,      which resulted in his instantaneous death; and (vi) ten  of   the  accused   persons,  including  the  five      appellants, were  members  of  the  riotous  mob  which      committed the above offences. 5.   In re-appraising  the evidence,  the High  Court  found that the  evidence of  P.W.13, who  claimed to have seen the riotous mob  to bring  the dead  body of  Vishwanathan  from inside the  house of  Kumaran and  keeping the  same on  its verandah, was  unreliable and accordingly left it out of its consideration. However,  relying upon the ocular evidence of the other  four eye-witnesses, namely, P.Ws.2,3,4 and 5, the doctor  and   the  Investigating  Officer,  the  High  Court concurred with all the above findings of the trial Court qua the five  appellants, giving  benefit of  doubt to the other five convicts regarding their participation. 6.   From the  above quoted  findings it is obvious that the incident that  took place  in  the  school  in  the  morning coupled with  the role  that Vishwanathan played immediately thereafter operated  as the  motive  to  the  group  of  CPM workers to  attack RSS  workers in general, and Vishwanathan in particular,  at the  Sakha. In  that background  when the weapons they  were carrying  and the  manner in  which  they started beating  the RSS workers, chased them from one house to another  where they  took shelter  and ultimately  hacked Vishwanathan to  death are  considered, there  cannot be any manner of  doubt that  their common object was to commit his murder and  cause injuries  to his  followers  and  that  in prosecution of  that common object they committed the murder and caused injuries to P.Ws.2,4,and 5. 7.   The next  and  the  crucial  question  is  whether  the concurrent findings  of the Courts below that the appellants were guilty  of the above offences is proper or not. To seek an answer  to this  question it  will be  necessary  to  the evidence of the four eye-witnesses, namely, P.Ws.2,3,4 and 5 which was  found by the Courts below to be reliable. Of them P.Ws.3,4 and  5 identified  all the  five appellants  as the members of  the mob which attacked and assaulted two of them (P.Ws.4 and  5) and  Rajendran at  the Shaka.  They  however could not  throw  any light s to what happened thereafter as they fled  away. Therefore,  to prove  the later part of the incident, the  prosecution fell  back upon  the evidence  of P.Ws.2  and   13.  As  the  evidence  of  P.W.13  was  found unreliable by  the High  Court (in our opinion for justified reasons) we  leave his  evidence out  of our  consideration. That brings  us to  the evidence  of P.W.2, on whom both the Courts relied,  more so,  as he  was one  of the persons who sustained injuries  at the  hands of  the mob.  After having gone  through  his  evidence  we  also  find  no  reason  to disbelieve him. His evidence fully corroborates the evidence of P.wS.3,4  and 5  that all the  appellants were members of the unlawful  assembly which attacked them at the Shaka, and further  proves  that  they  chased  him,  Vishwanathan  and

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Rejendran (who  could not  be examined  as he  had left  the place and  his whereabouts  were not  known) to the house of P.W.7, ransacked it, and pelted stones towards them and that when Vishwanathan  darted out  of the  house, they  followed him. In  cross-examination, however,  he stated that all the persons who had surrounded the house of P.W.7 did not follow Vishwanathan to  the house  of  Kumaran  where,  as  already noticed, Vishwanathan  met with  his gruesome death. In view of the  above statement of P.W.2 a conclusive inference that the five  appellants also  continued to  be members  of  the unlawful assembly  which proceeded  to the  house of Kumaran and killed  Vishwanathan cannot  be drawn.  To hold a person vicariously liable under Section 149 I.P.C. for a particular offence committed  by an  unlawful assembly  it  has  to  be conclusively proved  that he  was a  member of  the unlawful assemble at the time of commission of that offence. In other words, if  the time  of commission of that offence. In other words, if  the person arraigned ceased to be a member of the unlawful assembly before commission of the offence he cannot be held  liable for  the offence  with the aid of 149 I.P.C. Since  in   the  instant   case  the  possibility  that  the appellants might  not have  chased the  deceased,  when  the other members  of the  mob went  to the house of Kumaran and killed him,  cannot be  reasonably excluded  (in view of the earlier mentioned  statement of  P.W.2) they are entitled to the benefit  of reasonable  doubt regarding  their liability for the  murder. In  the  proved  facts  and  circumstances, therefore, the  only conclusive  inference that can be drawn against the  appellants are that they were the members of an unlawful assembly  which had  shared the  common  object  of committing the  murder of  Vishwanathan and assaulting other RSS workers  and that  in furtherance of their common object they criminally  trespassed into  the  house  of  P.W.7  and attempted to  commit his murder. Resultantly, the conviction of the  appellants under  Section  302/149  I.P.C.  for  the murder of  Vishwanathan cannot  be upheld, but they would be liable for  the offence  under Section 307 read with Section 149  I.P.C.   for  attempting   to  commit   the  murder  of Vishwanathan in the house of P.W.7. 8.   As regards  their other  convictions, the  trial  Court and, for  that matter,  the High  Court also-  ought to have held, having  regard to  the fact  that the  appellants were guilty of  the offences  under Sections  147 and 449 I.P.C., the question  of convicting  them under Sections 143 and 447 I.P.C. which  were minor  offences in relation to the former two offences  respectively,  did  not  arise.  However,  the convictions  of   the  appellants   under  Section   427/149 I.P.C.for causing  mischief to  the house  of  P.W.7,  under Section 324/149  I.P.C.for causing  hurt to P.W.5 with sharp cutting instrument,  and 326/149 I.P.C. for causing grievous injury to P.W.4 with lethal weapons must be upheld. 9.   On  the   conclusions  as   above,  we  set  aside  the convictions and  sentences of  the appellants  under Section 143,447 and 302 read with Section 149 I.P.C. but convict all of them  under Section  307.149 I.P.C.  and sentence each of them to  suffer rigorous  imprisonment for 7 years. We  also maintain their  convictions  and  sentences  under  Sections 147,324/149,  427/149   and  449/149   I.P.C..   All   their substantive sentences shall run concurrently. 8.   The appeals are, thus, disposed of.