REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1198-1199 OF 2005

Prathap & Anr.                               … Appellants

VERSUS

State of Kerala      …Respondent

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These  two  appeals  have  been  filed  against  the  

common  judgment  of  the  High  Court  of  Kerala  

at Ernakulam dated 28.6.2004 in Criminal Appeal  

No.  432 of  2003 and Criminal  Appeal  No.  873 of  

2003 whereby the High Court dismissed the appeal  

filed  by  the  appellants  herein  by  confirming  the  

judgment  of  the  trial  court  convicting  and  

sentencing them under          Section 302 and 149  

of the Indian Penal Code.  By the same judgment,  

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their  conviction  under  Section  120  (B)  was  set  

aside.   

2. The appellants along with eight other persons were  

tried  by  the  Sessions  Court,  Kollam,  in  Sessions  

case    no. 564/1999 for the offences punishable  

under  Section  114,  143,  147,  148,  120(B)  & 302  

read with Section 149 of Indian Penal Code.  It was  

the  case  of  the  prosecution  that  the  deceased  

Kochukuttan and Murali (CW-11) had assaulted the  

appellants on 19.5.1997 “at 9.00 p.m. at    a place   

at  Chaithram  Restaurant” run  by  the  appellant  

Devakumar  @  Jayakumar.   Seeking  revenge,  the  

two  appellants,  Rajeev  (A3)  and  Venu  (A4)  

assembled  at  Chaithram  Restaurant  at  Veliyam  

junction on 20.6.1997 at 7.45 p.m. and hatched a  

conspiracy to murder Kochukuttan.  On 24.6.1997,  

all  the  ten  accused  in  furtherance  of  a  common  

object, armed with deadly weapons such as swords,  

iron  rods,  chopper,  knife  and  stick  etc.  came  to  

Chaithram Restaurant in a jeep       KL-2B/9938.  

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The jeep, which belonged to CW-16, was driven by  

Venu (A4).  All the accused came out of the jeep at a  

place in front of the restaurant.  Accused Prathap  

(hereinafter  referred  to  as  A1)  and  Rajeev  

(hereinafter  referred  to  as  A3)  were  in  the  front  

whereas  Padmachandran  (A5)  to  Deepu  (A10)  

followed behind them.  They came to a place in front  

of  Harishree  Bakers  on  the  Eastern  side  of  

Kottarakkara  Oyoor  Public  Road  at  Veliyam  

junction  at  about  7.45  p.m.   At  that  time,  the  

deceased  was  talking  to  PW-1  Hareendranathan.  

A3,  Rajeev,  called  Kochukuttan  by  saying  

"Kochukuttan Come here”.  Thereafter, appellant no.  

1  Prathap  (A1)  assaulted  the  deceased  with  his  

sword and caused an injury on his head.  At the  

same time, appellant           no. 2 (A2) shouted “cut  

this  man”.   He was also armed with a sword and  

made a cut with the same on the side of the chest of  

the  deceased.   As  a  result  of  the  injuries,  

Kochukuttan fell  down on the road on the side of  

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the  verandah  of  Harishree  Bakers.  Thereafter,  

Padmachandran  (hereinafter  referred  to  as  A5),  

Arjunan (hereinafter referred to as A6), Siddikishan  

(hereinafter  referred  to  as  A7),  Saji  @  

Sajith(hereinafter  referred  to  as  A8),  

Rajesh(hereinafter  referred  to  as  A9)  and  

Deepu(hereinafter referred to as A10) are alleged to  

have  inflicted  various  injuries  with  their  weapons  

such as iron rods, chopper, sword, knife and stick.  

After  causing mortal  injuries  to  Kochukuttan,  the  

assailants left the place in the same jeep in which  

they had arrived.  The deceased was moved to the  

hospital  initially  in  a  car  driven  by  CW-14.  

However,  the  lights  of  the  car  developed  some  

problem and the  deceased was  transferred  to  the  

jeep driven by CW-15.  Kochukuttan succumbed to  

the  injuries  at  8.10  p.m.  on  24.6.1997.   Upon  

completion  of  the  investigation,  the  ten  accused  

were put on trial.  The prosecution cited PW-1, PW-

2. PW-4 and PW-5 to PW-10 as eye–witnesses.  It is  

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noticed by the High Court that PW-6 to PW-10 were  

declared hostile  as they did not fully  support  the  

prosecution story.   PW-3 was examined mainly to  

prove  the  criminal  conspiracy  which  had  been  

hatched  at  the  hotel  of  Chaithram owned  by  A2,  

appellant in Criminal Appeal No. 873 of 2003 in the  

High Court.  The trial court convicted A1, A2, A5,  

A6  and  A7  under  Section  302        of  IPC and  

sentenced them to imprisonment for life and fine of  

Rs. 20,000/- each, in default to undergo R.I. for    a  

period of 6 months.  A1, A2, A5, A6 and A7 were  

also convicted under Section 149 and sentenced to  

R.I. for      1 year each.  A1, A2 and A4 were also  

convicted of the offence under Section 120B IPC and  

sentenced to R.I. for 5 years each.  Accused A3 and  

A8 to A10 were acquitted.   

3. The two appellants herein challenged the aforesaid  

judgment by filing Criminal Appeal No. 873 of 2003  

and 432 of 2003 before the High Court.  The other  

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accused  persons  filed  Criminal  Appeal  No.  

319/2003, 400/2004, 422/2003, 479/2003. State  

of Kerala preferred Criminal Appeal No. 901/2003  

against the acquittal of 5 accused persons.  All the  

appeals were heard together by the High Court and  

decided by a common judgment               dated  

28.6.2004.  The appeals filed by the two appellants  

herein against  the  conviction and sentence  under  

Section 302 IPC read with Section 149 of the IPC  

were dismissed.  However,  the conviction of these  

two appellants under Section 120(B) was set aside.  

The appeals filed by the State against the acquittal  

of A3 and A8 to A10 were also dismissed.  At the  

same time, the appeals filed by accused no. 4, 5, 6  

and 7 were allowed and their conviction as well as  

the sentence was set aside.  These two appeals have  

been  filed  by  the  two  appellants  against  the  

judgment  of  the  High Court  rendered in Criminal  

Appeal No. 873 and 432 of 2003.   

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4. We have heard the learned counsel for the parties.

5. The submissions made by the learned counsel for  

the  appellants  before  the  High  Court  have  been  

reiterated  before  this  Court.   Learned  counsel  

appearing for the appellants, Mr. C.N. Sreekumar,  

has  submitted  that  the  presence  of  the  eye-

witnesses  is  doubtful.   Even  if  the  alleged  eye-

witnesses  were  present,  their  evidence  cannot  be  

relied  upon  as  it  would  have  been  impossible  to  

identify  the assailants as the scene of  occurrence  

was not a well lit place.  Assault which led to the  

death of Kochukuttan is alleged to have taken place  

at about   7.45 P.M. At the relevant time, there was  

load shedding of electricity in Kerala.  On the date  

of  the  incident,  the  load  shedding  commenced  at  

about 7.30. P.M. Therefore, it would not have been  

possible to identify the appellants.  It would also not  

have been possible for the eye-witnesses to notice  

the  weapons  which  were  allegedly  used  by  all  

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members  of  the  unlawful  assembly.   Learned  

counsel  further  submitted  that  the  eye-witnesses  

have failed to state categorically as to which injury  

was  caused  by  which  appellant  and  with  which  

weapon.  The  learned  counsel  submitted  that  the  

eye-witnesses  account  is  highly  suspicious.  

Attacking the evidence of PW1, the learned counsel  

has submitted that the witness is the brother-in-law  

of  the  deceased.   He  has  been  deliberately  

introduced by the prosecution.  If he was an actual  

witness to the incident, he would have tried to save  

his  brother-in-law  and  would  have  certainly  

received some injuries.  Apart from this, when the  

deceased  was  being  moved  to  the  hospital,  this  

witness  did  not  accompany  the  deceased  in  the  

same  car.  According  to  the  learned  counsel,  the  

evidence of PW2, suffers from the same infirmities.  

Learned  counsel  further  submitted  that  the  High  

Court  having  acquitted  all  the  accused  from  the  

charge of criminal conspiracy, there was hardly any  

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evidence  of  unlawful  assembly or  common object.  

Therefore,  a  conviction  under  Section  302  IPC  

cannot be recorded on the basis of such evidence.  

At best,  the appellants could have been convicted  

under  Section      304  IPC.   In  support  of  the  

submissions,  learned  counsel  has  relied  on  three  

judgments of this Court, viz.,

(1) Siri  Kishan and Others Vs.  State of  Haryana,  

(2009) 12 SCC 757

(2) Mummidi  Hemadri  and  Others Vs.  State  of  

Andhra Pradesh, (2007) 13 SCC 496

(3) Chanda  and  Others Vs.  State  of  U.P.  and  

Another, (2004) 5 SCC 141

6. Learned  counsel  further  submitted  that  in  any  

event, the evidence of the eye-witnesses cannot be  

believed as there was no identification parade held  

by the investigating officer to identify the accused  

persons, who have actually committed the offence.  

It is further submitted by the learned counsel that  

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the identification of the appellants in the Court is of  

no  consequence  as  the  appellants  along  with  the  

other co-accused had been shown to the witnesses  

in  the  police  station.   Their  weapons  were  also  

shown  to  the  witnesses.   As  a  result  of  these  

infirmities,  the  co-accused  of  the  appellants  have  

been  acquitted.   Therefore,  on  the  principle  of  

parity,  the appellants also deserved the  benefit  of  

doubt.  According to the learned counsel, apart from  

the  unsatisfactory  identification  of  the  appellants,  

the case of the prosecution has not been supported  

by  PW6 to  PW10,  who were  having  shops  in  the  

neighbourhood  at  the  junction  where  the  assault  

had taken place.  Therefore, it was submitted that  

the very genesis of the assault has not been proved.  

7. On the other hand, Mr. R. Sathish, learned counsel  

appearing for the State of Kerala submitted that the  

trial  court  as  well  as  the  High  Court  has  given  

concurrent  findings.   The  evidence  having  been  

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appreciated  twice,   by  the  trial  court  as  also  the  

High Court, does not leave any iota of doubt as to  

the involvement of the appellants in the murder of  

the  deceased.   He  has  submitted  that  the  first  

information report was registered on the basis of the  

first information statement given by the brother-in-

law  of  the  deceased,  PW1  very  soon  after  the  

incident.   The consistent  story given by PW1 was  

fully corroborated by the eye-witnesses account of  

the PW2.  The conspiracy has been duly proved by  

the evidence of PW3.  He has further submitted that  

the submission of the learned counsel with regard  

to  the  place  of  assault  being  not  properly  lit  is  

factually  incorrect  because  the  Veliyam  junction  

where the murder took place is a very busy place  

and well lit throughout the night.  Learned counsel  

further  submitted  that  the  injuries  which  caused  

the  death  of  Kochukuttan  have  been  specifically  

pointed out by the medical evidence in the inquest  

report as also in the postmortem report.  Coming to  

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the evidence with regard to the identification of the  

appellants,  learned  counsel  submitted  that  any  

infirmities in not holding the identification parade  

would be totally irrelevant in case of the appellants  

as  they  were  previously  well  known  to  PW1  and  

PW2. The evidence of PW1 and PW2 has been duly  

corroborated by the evidence of other eye-witnesses  

PW4  and  PW5.   So  far  as  the  submissions  with  

regard to the non-identification of the weapons and  

the            non-attribution of the particular injuries  

to  the  appellants,  learned counsel  submitted  that  

their participation is such that they would not be  

entitled to the benefit of the very limited exception  

which  is  permissible  to  a  by-stander  in  a  charge  

under  Section  149  IPC.   Learned  counsel  further  

submitted that this is a clear case of enmity as the  

deceased  and  CW-11  had  attacked  appellants  on  

the night  before  the  murder.   With regard to  the  

load shedding, learned counsel has submitted that  

the entire assault incident took place within a span  

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of 3 to 4 minutes. It is alleged to have commenced  

at  7.25  P.M.  and would  have  been over  by  7.28.  

P.M.  The load shedding if any does not commence  

till after 7.30 p.m. Even otherwise, it is submitted  

that  on  the  fateful  night  of  24.6.1997,  it  was  a  

moonlight night, therefore, it would not be a case of  

complete darkness at night.   

8. We  have  given  due  consideration  to  the  rival  

submissions  made  by  the  learned  counsel.   The  

High Court in the impugned judgment has clearly  

observed that the identity of the deceased and the  

place  of  occurrence  etc.  are  not  disputed  in  this  

case.  Postmortem of the dead body of Kochukuttan  

was  conducted  by  PW-18  at  11.40  a.m.  on  

25.6.1997.         Ex.  P17  is  the  postmortem  

certificate  which  shows  that  there  are  20  ante  

mortem injuries.  PW-16 has opined that the death  

was due to injuries sustained to the chest and left  

palm, that is, injuries No. 14 to 20 and death can  

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also  be  due  to  the  cumulative  effect  of  all  the  

injuries.  Both the Courts have concluded that the  

medical  evidence  is  consistent  with  the  eye-

witnesses account given by PW-1, PW-2, PW-4 and  

PW-5.  As noticed above, PW-6 to PW-10 although  

cited as eye-witnesses were declared hostile and did  

not support the prosecution.

9. The  trial  court  formulated  5  points  for  

consideration, which are as follows:-

1) Whether  the  death  of  Kochukuttan was  

because of the injuries sustained in the  

occurrence?

2) Whether  the  accused  persons  had  

inflicted injuries on deceased?

3) Whether  the  accused  persons  A1 to  A4  

had  conspired  together  to  cause  the  

murder of deceased Kochukuttan?

4) What  offence,  if  any,  accused  persons  

had committed?

5) Regarding sentence?

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On point  no.  1,  the  trial  court  concluded  on the  

basis of the findings in the inquest report as follows:

“The  inquest  on  the  dead  body  of  deceased  was  conducted by PW19, sub inspector on the morning on  25.6.1997  at  the  District  Hospital  on  the  direction  given by the Circle Inspector, Kottarakara and Ext.P20  is the inquest report prepared by PW.19. In Ext.P20,  PW.19 had noted the injuries found on the dead body.  By Ext.P20,  the cause of  death is due to the injury  sustained  by  beating,  stabbing  and  cutting.   In  Ext.P20,  it  is  stated  that  as  per  the  information  received, the injuries were inflicted on the deceased by  A1,  A2  and  others  due  to  their  animosity  against  deceased  Kochukuttan.   Ext.P17  is  the  postmortem  certificate  prepared  by  PW16,  doctor  who  has  conducted the postmortem examination on the dead  body of  the  deceased.   In  Ext.P17,  20 ante  mortem  injuries are noted on the body of the deceased and the  cause  of  death  stated  in  Ext.P17  ‘due  to  the  injury  sustained to the chest and left palm’.”   

10. In  the  post  mortem report  (Ex.P17),  the  following  

injuries were noticed on the deceased:-

1) Incised wound 4.5x2 cm skin deep oblique  

reflecting a flap backwards on the left side of  

face, the upper outer and being 4 cm in front  

of ear.  

2) Incised wound 5x1 cm bone deep obliquely  

placed  on  the  left  side  of  head  the  lower  

inner and being 9 cm outer to midline 6 cm.  

Above eyebrow.

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3) Abrasion 2x1 cm on the left side of forehead  

2  cm  outer  to  midline  and  2  cm  above  

eyebrow.

4) Incised  wound  3.5  x  0.5  cm  bone  deep  

obliquely placed on the left  side of back of  

head the lower inner and being 5 cm outer to  

midline and 18 cm above root of neck.  

5) Incised  punctured  wound  3  x  1  x  9  cm.  

Oblique on the right side of root of neck, the  

lower  inner  blunt  and  being  10  cm below  

right ear.  The upper outer and was sharply  

cut.   The  wound was directed  downwards,  

forwards  and  the  left  through  the  muscle  

plane.  

6) Incised  punctured  wound  2.5x1x6.5  cm  

oblique on the right side of root of neck, its  

lower inner blunt end being 2 cm, above the  

injury  No.  5.   The  upper  outer  end  was  

sharply  cut.   The  wound  was  directed  

downwards,  forwards  and  the  left  through  

the muscle plane.

7) Abraded contusion 2 c 1.5x05 cm.  On the  

front of right shoulder 2 cm inner to its tip.

8) Incised  wound 1.8x0.5  skin  deep  obliquely  

placed on the right side of front of neck, the  

lower inner and being 5 cm outer to midline  

2.5 cm.  Above collar bone.  

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9) Lenior abrasion 7.5 cm. long oblique on the  

outer front and cuter aspect of right arm the  

lower inner and being 9 cm. above elbow.

10) Incised wound 7 x 02 x 10 oblique on the  

outer aspect of right arm the lower inner and  

being 9 cm above elbow.

11) Lacerated  wound  0.8x0.8x1.5  cm  on  the  

outer aspect of right arm 0 cm above elbow.

12) Lacerated wound 1x1 cm bone deep on the  

outer aspect of right arm 2 cm above elbow.  

Underneath  the  humerus  was  found  

fractured 4 cm above elbow.  

13) Abrasion 1.5x1 cm. on the outer aspect  of  

right elbow.

14) Incised wound 10x1.5x2 cm obliquely placed  

on the left palm the lower outer and was in  

the  web  space  in  between  the  middle  and  

ring finger.  Underneath the muscle tendon  

and vessels were found sharply cut.

15) Incised wound 2.5x05 cm skin deep on the  

back of left ring finger 4 cm. below its root.

16) Incised wound 8x3x3 cm horizontal  on the  

back and outer aspect of left forearm, 9 cm  

below  elbow,  underneath  the  muscles,  the  

radius bone was found cut and separated.  

17) Incised  wound  9x3.5  cm  skin  deep  at  its  

upper part and 3 cm deep at its lower part  

oblique with tailing upwards, on front of left  

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side  of  chest,  the  lower  inner  and  being  

3.5 cm outer to middle and 9.5 cm below the  

upper end of sternum.

18) Incised wound 11x1.5x0.5 cm oblique on the  

right side of back of trunk, the lower inner  

and  being  11.5  cm outer  to  midline  4  cm  

below root of neck.

19) Incised wound 2.5x1 cm skin deep oblique  

on the back of right side of trunk, the lower  

inner  end  being  11.5  cm outer  to  midline  

9 cm below root of neck.

20) Incised  penetrating  wound  2.5x1  cm  

obliquely placed on the back of  left  side of  

trunk, the lower inner sharply cut end was  

5.5 cm outer to midline and 7 cm below root  

of neck.  The outer end of the wound showed  

splitting of the skin.  The chest cavity was  

scan penetrated through the Vth intercostal  

space, after cutting the upper border of the  

Vth rib.  The upper lobe of the back aspect of  

the  lung  was  scan  punctured  2x05x4  cm.  

The  left  chest  cavity  contained  300  ml.  of  

fluid  blood.   The  track  of  the  wound  was  

directed  downwards  and  forwards  to  the  

right.   The  total  minimum  depth  of  the  

wound was 14 cms.”      

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11. The trial court also noticed that PW-16, the doctor,  

who conducted the postmortem examination, stated  

“that the death was due to the injuries sustained to  

the chest and the left palm, that is, injuries no. 14  

to 20”.  These injuries were caused by sharp cutting  

weapons  such  as  sword  or  chopper.   Thus,  the  

inquest report (Ex.P20) and the postmortem report  

(Ex.P17) would clearly show that Kochukuttan died  

as  a  result  of  the  injuries  sustained  in  the  fatal  

assault by the appellants and the other          co-

accused.   

12. The trial court on the basis of evidence given by the  

eye-witnesses  concluded  that  the  participation  in  

the assault by appellants herein is proved beyond  

doubt.  The conspiracy was held to be proved on the  

basis of the evidence given by PW3.  On the basis of  

the  findings,     the  trial  court  convicted  the  two  

appellants  along  with  the  other  co-accused  as  

noticed above.   

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13. The High Court on a re-examination of  the entire  

body of  the  evidence has also concluded that the  

ocular evidence of PW1 cannot be discarded simply  

on the ground that he is the brother-in-law of the  

deceased.  The High Court has also held that there  

is  clear  evidence  that  both  the  appellants  had  

participated and formed an unlawful assembly with  

a  common  object  to  commit  the  murder  of  the  

deceased.   The High Court, therefore, found that  

there is clear evidence with regard to the appellants  

having committed the offence under       Section 149  

IPC.   

14. A perusal of the evidence of PW1 leaves no manner  

of doubt about the entire sequence of events.  He  

has  graphically  recounted  the  arrival  of  the  

assailants in the jeep.  He even gave the sequence  

and the order in which they had advanced towards  

Kochukuttan.  He has stated in categoric terms that  

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he had known the appellants herein for a number of  

years.  He had seen the others in the vicinity and at  

the  Veliyam  junction.  He  has  categorically  stated  

about the participation of both the appellants.  He  

has  named  both  the  appellants  in  the  first  

information  statement.   He  has  given  a  graphic  

account  of  the  injuries  caused  by  both  the  

appellants.  He has also narrated how the accused  

went away in the jeep after inflicting mortal injuries  

on the deceased.      He also talks about the load  

shedding which according to him commenced from  

7.30 p.m.  He further narrated that the car in which  

the  injured  Kochukuttan  was  being  taken  had  

developed electrical problem and that the deceased  

had to be removed to a jeep.  He has categorically  

stated that by reason of enmity, A1 and A2 together  

have murdered his brother-in-law.  He identified the  

weapons wielded by the appellants. He could also  

recognize  the  apparels  worn  by  the  accused  with  

clear distinction.  In his examination, he also stated  

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that the incident was clearly seen in the street light  

and light of  the nearby shops.  He stated that at  

that time, 3 bulbs were glowing over the shop where  

the  incident  happened.   There  was  also  Mercury  

Street light.  The incident could be seen clearly.  He  

also stated that the vicious assault was the result of  

instigation of A2.  This witness was cross-examined  

at  length.   In  his  cross-examination,      he  has  

stated  that  deceased  Kochukuttan  was  a  Marxist  

party  worker.   He  reiterated  that  he  has  stated  

before the police that A1 had taken a sword which  

was  concealed  at  the  back  of  his  waist  and  had  

stabbed at the left side of the head of the deceased.  

He  also  went  on  to  say  that    A2  also  stabbed  

Kochukuttan on the left side of his chest pursuant  

to which the deceased had fallen down to the road  

from  the  cement  thinna.  Such  deposition  of  

PW1  also  gets  strength  from  the  seizure  of  

MOs Nos. 13 and 14, i.e., portion of blood stained  

cement  and  portion  of  removed  cement  without  

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blood respectively.  He also reiterated that he had  

narrated the acts done by each and every accused.  

He  reiterated  that  he  is  able  to  identify  all  the  

accused  persons.   In  the  cross-examination,  he  

seems to have further strengthened the case of the  

prosecution.   While  answering  the  numerous  

questions  posed  by  the  defence  counsel,  he  

elaborated that there was previous enmity between  

the deceased and the accused persons.   So there  

was clear motive for the appellants to assault the  

deceased.  He  also  stated  that  the  police  had  not  

recorded the version as he had narrated.  He had  

definitely  told  the  police  about  the  signs  for  

identification of the accused.  He admitted that all  

the accused were not the residents of the place of  

occurrence.   However,  the  appellants  herein  were  

certainly  local  residents.   He  even  went  on  to  

narrate that the deceased told him about       2  

weeks ago that the appellants had attempted to kill  

him through hired people.  He categorically states in  

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the  cross-examination  that  the  entire  incident  of  

assault  took 3  minutes.   He  also  stated  that  the  

deceased used to go to the junction quite regularly  

by about 7.00 p.m. and he would usually go home  

by 9 p.m.

15. In our opinion, the trial court as well as the High  

Court  correctly  relied  upon  the  unflinching,  

coherent  and  consistent  evidence  given  by  PW1.  

The evidence given by PW1 has been corroborated  

by  PW2  in  every  material  particular.   From  the  

above  narration,  it  becomes  apparent  that  the  

submission with regard to the scene of  crime not  

being well lit is without any substance.  Similarly,  

the criticism with regard to the identification parade  

not having been held is of no consequence.      PW1  

and  PW2  have  clearly  stated  that  the  appellants  

herein  were  previously  known  to  them.   PW1  

certainly  even  knew  about  the  previous  enmity  

between the deceased and the appellants.   

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16. We see no reason at all to disbelieve the evidence of  

the eye-witnesses. The weapons used by the appellants  

and the injuries caused have been specifically mentioned  

by PW1 and PW2. There were 20 ante mortem injuries on  

the  deceased.  Recoveries  of  the  swords  used  by  them  

were made at the instance of the appellants. Recoveries  

of  other weapons, clothes worn by the accused on the  

day of the assault were also made at the instance of the  

other  accused.  As  stated  above,  medical  evidence  also  

leads to the conclusion that the death has resulted from  

the  injuries  caused  by  the  appellants  and  the  other  

accused  with  their  respective  weapons.  In  view  of  the  

proven facts, in this case as noticed by the trial court, the  

High Court and by us above, it becomes evident that the  

appellants had acted with a common object to eliminate  

the deceased.

This  Court  delineated  the  circumstances  in  which  

constructive liability can be fastened on the accused, in  

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the case of Bhagwan Singh Vs. State of M.P., (2002) 4  

SCC 85, wherein it was observed:

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

(emphasis supplied)

The aforesaid proposition was further reiterated in the case of  

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Chanda Vs. State of U.P., (2004) 5 SCC 141:

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

17. In  the  present  case  we  are  unable  to  accept  the  

submission  that  the  appellants  were  perhaps  unaware  

that the murderous assault, intended to be committed by  

them,  would,  in  all  probability,  cause  the  death  of  

Kochukuttan.  We have earlier noticed that both the trial  

court  as  well  as  the  High  Court  have  considered  the  

specific  injuries caused by the appellants with swords.  

As noticed above, there were 20 ante mortem injuries on  

the deceased. According to the opinion of the doctor, the  

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death was due to injuries caused on the chest and on the  

left palm. It is further observed that the death could also  

have  resulted  from  the  cumulative  effect  of  all  other  

injuries.  Therefore,  there  is  no  manner  of  doubt  that  

Kochukuttan died as a result of  injures caused by the  

appellants along with the other accused.  

18. We  also  do  not  find  any  substance  in  the  

submission of the Learned Counsel of the appellant that  

since all  the other co-accused have been acquitted;  on  

the ground of parity the appellants herein also deserve to  

be acquitted. It is always open to a court to differentiate  

the accused who had been acquitted from those who had  

been convicted. Both the Courts below have applied the  

aforesaid  principle  in  distinguishing  the  case  of  the  

appellants herein from those who have been acquitted.  

To  remove  any  doubt  we  may  emphasize  that  the  

appellants  herein  were  known  to  be  associates  of  the  

deceased. They had previous social interaction. For some  

time they had been having differences of  opinion.  This  

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had led to an assault by the deceased and his companion  

Murali (CW11) on the appellants herein, namely, Prathap  

(A1)  and Devakumar (A2).  Consequently  the appellants  

herein had wanted to settle the score with the deceased.  

They had a clear motive. This apart, PW1 and PW2 not  

only identified the appellants herein as assailants with  

swords but also indicated the injuries inflicted by them  

on the deceased. On the other hand the accused persons  

who  had  been  acquitted  were  not  known to  PW1 and  

PW2.  In  fact  PW1  in  the  evidence  had  categorically  

admitted  that  the  other  accused  were  not  from  the  

locality  but  were  sometimes  seen  at  the  Veliyam  

Junction.  

19. In our opinion the Courts below rightly declined to  

acquit  the  appellants  on  the  principle  of  parity.  The  

power of the Courts to distinguish the cases of  one or  

more of the accused(s)  from the other(s)  is far too well  

recognized to need reiteration. Still,  we  may  notice  the  

principle  as  stated in  the  case  of  Gangadhar Behera  

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Vs. State  of  Orissa,  (2002)  8 SCC 381  wherein  this  

Court observed as follows:  

“Even if a major portion of the evidence is found to be  deficient, in case residue is sufficient to prove guilt of  an accused, notwithstanding acquittal of a number of  other  co-accused  persons,  his  conviction  can  be  maintained. It is the duty of the court to separate the  grain  from the  chaff.  Where  chaff  can  be  separated  from the grain, it would be open to the court to convict  an accused notwithstanding the fact that evidence has  been  found  to  be  deficient  to  prove  guilt  of  other  accused persons.”

20. In  our  opinion  the  trial  court  as  well  as  the  

High Court rightly convicted the appellants  as the facts  

and circumstances of the case unequivocally  prove the  

existence of the common object of the appellants. They  

had come looking  for  Kuchukuttan armed with  deadly  

weapons  with  the  intention  of  causing  grievous  bodily  

injuries.  There  was  a  preplanned  attack.  They  located  

him and caused serious injuries with swords, choppers  

and other weapons, which led to his death. Thus they  

were  rightly  convicted  and  sentenced  for  the  offence  

under Section 302/149 IPC.

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21. We  are  also  of  the  considered  opinion  that  the  

concurrent views taken by the trial court as also the High  

Court  cannot  be  said  to  be  either  clearly  illegal  or  

manifestly erroneous and do not call for any interference  

under Article 136 of the Constitution of India.  

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

dismissed.  

…………………………….J.              [B.Sudershan Reddy]

..……………………………J.              [Surinder Singh Nijjar]  

NEW DELHI, AUGUST 27, 2010.

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