Sasidharan Nambiar, J.@mdashAppellants in Crl. A. No. 587 of 2008 are accused 1 and 2 in S.C. No. 348 of 2004 before Ist Additional Sessions Court, Thodupuzha. Appellant in Crl. A. No. 608 of 2008 is the 3rd accused therein. The learned Additional Sessions Judge convicted accused 1 and 2 for the offences under Sections 143, 147, 148 and 302 read with Section 149 of the Indian Penal Code. They were sentenced to imprisonment for life and a fine of Rs. 20,000/- each and in default rigorous imprisonment for one year for the offence u/s 302 read with Section 149 IPC, rigorous imprisonment for six months and a fine of Rs. 1000/- for the offence u/s 143, rigorous imprisonment for two years and a fine of Rs. 2000/- for the offence u/s 147 and rigorous imprisonment for three years and a fine of Rs. 3,000/- for the offence u/s 148 IPC. Third accused was convicted for offences under Sections 143, 147, 148 and 324 read with Section 149 IPC. He was sentenced for the offence u/s 143 IPC, rigorous imprisonment for six months and a fine of Rs. 1000/-, for the offence u/s 147, rigorous imprisonment for one year and a fine of Rs. 1000/-, for the offence u/s 148, rigorous imprisonment for two years and a fine of Rs. 2000/- and for the offence u/s 324 IPC, rigorous imprisonment for two years and a fine of Rs. 2000/-. Accused 4 to 8 were convicted for offences under Sections 143, 147 and 323 read with Section 149 IPC and sentenced to a fine of Rs. 1000/- each. Accused 1 to 3 filed the appeals challenging the conviction and sentence. Accused 4 to 8 did not file an appeal. Prosecution case is that deceased Saji, PW7 Mohanan brother-in-law of deceased Saji, and PW8 Nibu M. Joseph are autorickshaw drivers. PW7 had earlier teased the sister of the first accused. At about 5 p.m. on 16.6.2002, when PW7 parked his autorickshaw at Pallikkunnu junction, all the accused, formed an unlawful assembly and the first accused pulled him out of the autorickshaw. Finding it PW8 Nibu M. Joseph, intervened and then the accused attacked him. Finding it, deceased Saji came there. He also intervened and the accused, attacked him. It is alleged that first accused with MO1 knife, attacked Saji and he caught hold of the knife with his left hand and sustained injuries on his left fingers and fearing further attack Saji ran and took shelter in the hotel of PW4 Joy.
But all the accused followed him and entered the hotel. It is alleged that PW8 also followed them and witnessed the incident that occurred inside the hotel. It is alleged that first accused inflicted an injury in between the eyebrows on the forehead of Saji with the knife. Second accused took MO2 filtering ladle, from the hotel, and with it inflicted injury on his right eye. The other accused beat him with their bare hands as well as a wooden log and on sustaining injuries Saji fell inside the hotel and declaring that Saji is no more, the accused left the place. The injured Saji was taken to Taluk Headquarters Hospital, Kanjirappilly by Manoj. PW12, the doctor, examined him at 7.30 p.m. and prepared Ext. P13 wound certificate. PW12 referred him immediately to the Medical College Hospital. Deceased Saji reached the Medical College Hospital, Kottayam on the same night and was examined by PW13. After examination finding that deceased Saji did not sustain serious injuries, warranting his treatment in the Medical College Hospital he was sent back to Taluk Headquarters Hospital, Kanjirappilly. Deceased Saji reached Taluk Headquarters Hospital only at 8.10 p.m. on 17.6.2002. Then PW12 examined him and admitted him as an inpatient. He was found missing at 7 p.m. on 18.6.2002. Deceased Saji reached District Hospital, Kottayam at 8.15 p.m. PW14, the doctor, examined him and admitted him as an inpatient. Saji breathed his last on 19.6.2002 at 8.30 p.m. due to meningitis. PW1, the then Head Constable, on getting information that the injured was admitted in Taluk Headquarters Hospital, Kanjirappilly reached there on 18.6.2002 and recorded Ext. P1 F.I. Statement of injured Saji at 6 p.m. He returned back to the police station. Based on Ext. P1 F.I. Statement, PW15, the Sub Inspector, prepared Ext. P17 F.I.R. and registered Crime No. 202 of 2002 of Peermade police station, against accused 1 to 4. Crime No. 201 of 2002 was earlier registered by PW15 in respect of the same incident, which is treated as the counter case. On recording the first information statement of the injured in this case, PW15 reached the scene of occurrence and prepared Ext. P11 scene mahazar, which is common to the counter case also. M02, filtering ladle, was also recovered from the scene of occurrence at that time, describing it in Ext. P11. PW16, the Circle Inspector, took over the investigation on 20.6.2002 as injured Saji died from the hospital. He prepared Ext. P2 inquest report and seized MOs 3 to 5 dresses and bed sheet describing them in Ext. P2. He arrested accused 2 and 3 on 23.6.2002 and accused No. 4 on 24.6.2002. Based on the investigation, finding that accused 5 to 8 are also involved and offences under Sections 143, 147, 148 and 302 read with Section 149 IPC were also involved, report was submitted before the court. He submitted necessary requisition for conducting autopsy. PW18 Dr. Abraham Daniel conducted the autopsy and prepared Ext. P26 postmortem certificate finding that death was due to meningitis developed consequent to the injuries sustained. PW16 arrested accused 1 and 5 on 26.6.2002, the sixth accused on 5.7.2002, 8th accused on 6.7.2002 and 7th accused on 8.7.2002. Based on the information furnished by the first accused, under Ext. P12 recovery mahazar MO1 knife was recovered from his house. After completing the investigation PW16 laid the charge before Judicial First Class Magistrate, Peermade, who committed the case to Sessions Court, Thodupuzha. The learned Sessions Judge made over the case for trial to First Additional Sessions Court, Thodupuzha. The accused were defended by counsel of their choice.
2. When charges for the offences under Sections 143, 147, 148, 323, 324 and 302 read with Section 149 IPC were framed and read over, the accused pleaded not guilty. The charge framed by the learned Additional Sessions Judge, in fact, shows that there was no charge for the offence u/s 302 read with Section 149 IPC. Instead charge was only for the independent offence u/s 302 IPC. So also, even though the charge shows that the accused formed an unlawful assembly, the common object of the unlawful assembly was nowhere shown in the charge framed by the learned Additional Sessions Judge. Instead of common object, it is alleged that injuries were inflicted in furtherance of the "common intention" for the offences under Sections 323 and 324 IPC. There was no charge with the aid of Section 149 IPC for the offence under Sections 323 and 324 IPC also.
3. The prosecution examined 18 witnesses, marked 26 exhibits and identified six material objects. At the time of cross examination of PW16 Ext. D1 final report submitted in Crime No. 201 of 2002, the counter case, was marked by the defence. When the accused were questioned u/s 313 Cr.P.C., after closing the prosecution evidence, they denied the incriminating evidence put to them and additionally contended that they are innocent and accused 2 to 8 were not present at the scene of occurrence. First accused additionally stated that on the date of the incident, he was walking towards the autorickshaw stand and then deceased Saji approached him. First accused asked deceased Saji why he teased his sister and there was a push and pull between Saji and his friends, the autorickshaw drivers. Then a police constable reached there and dispersed the crowd. In the incident first accused sustained an injury on his head and he was taken to the hospital and no incident occurred inside the tea shop of PW4. Saji died due to the negligence shown in his treatment by the doctor and not on account of any act of the accused.
4. Though the accused were called upon to adduce defence evidence they did not adduce any evidence. The learned Additional Sessions Judge, on the evidence, found that PW7 and deceased Saji were attacked by the accused, who are members of an unlawful assembly, without specifically finding what was the common object of the unlawful assembly. It was found that an unlawful assembly was formed at the spot and it was in furtherance of the common object, deceased Saji and PW7 were attacked. Still, on the finding that the injuries were inflicted by accused 1 and 2 alone, they were convicted for the offences under Sections 143, 147, 148 and 302 read with Section 149 IPC for murdering deceased Saji. Finding that the third accused was armed and also inflicted an injury on the shoulder of deceased Saji with a dangerous weapon, he was convicted for the offences under Sections 143, 147, 148 and 324 with the aid of Section 149 IPC, though none of the other members of the alleged unlawful assembly were convicted for the offence u/s 324 read with Section 149 IPC. Accused 4 to 8 were convicted for the offences u/s 143, 147 and 323 read with Section 149 IPC finding that they voluntarily caused hurt to deceased Saji. Accused 1 to 3 filed these appeals challenging the conviction and the sentence. Accused 4 to 8 did not prefer any appeal.
5. Learned counsel appearing for the appellants and the learned Public Prosecutor were heard.
6. At the outset itself, it is to be noted that unfortunately the learned Additional Sessions Judge grossly erred in appreciating the ingredients of Sections 143, 147 and 149 of Indian Penal Code. Section 143 provides the punishment for being a member of an unlawful assembly. Unlawful assembly is defined u/s 141 of Indian Penal Code. The essential ingredients to constitute an unlawful assembly are:-
(1) an assembly of five or more persons
(2) they must have a common object and
(3) the common object must be one of the five specified in the section.
The common object required by the section is to be established with reference to the evidence in each case. The illegal object which the members have in common, must be one of those specified in the Section, if the object does not fall under either of those clauses, it is not illegal and if the object is not illegal, there can be no unlawful assembly. Therefore to constitute an offence u/s 143 the prosecution has to prove that there was an assemblage of at least five persons, that the object of the meeting was any of the five objects mentioned in Section 141 and that the accused shared that object with at least four others of the meeting and the accused intentionally joined the meeting either having knowledge of its object or continued therein after having that knowledge. The charge framed by the court should specify the unlawful common object of the assembly. Section 147 provides the punishment for rioting. The points required to be proved are :-
(1) that five or more persons were assembled
(2) that they constitute an unlawful assembly within the meaning of Section 141 IPC.
(3) that the accused was a member of that assembly
(4) that force or violence was used by any member of that assembly
(5) that it was used in prosecution of its common object.
Section 148 provides that whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished as provided therein. The ingredients are possession of a deadly weapon, in addition to the ingredients provided u/s 147. Section 149 which is wide in its sweep requires deep scrutiny and detailed and specific proof, for holding that the accused persons were members of an unlawful assembly with a common object with particular reference to the part played by each of the accused persons who constituted the unlawful assembly. It is to be born in mind that Section 149 is a distinct offence, and deals with vicarious liability of the members of the unlawful assembly for the acts done in prosecution of the common object and for such offence as its members knew to be likely to be committed in prosecution of that common object. It must be proved that such objects were common to all the members of the assembly and the accused joined and continued as a member of the assembly. The common object provided u/s 149 and the common intention provided u/s 34 of IPC are not synonymous. As observed by the Privy Council in
(1) that there was an unlawful assembly
(2) that the accused was a member thereof, at the time of committing the offence.
(3) that he intentionally joined or continued in the assembly
(4) that he knew of the common object of the assembly.
(5) that an offence was committed by a member of such assembly.
(6) that it was either committed (a) in prosecution of the common object of the assembly or (b) was such as the members of the assembly knew to be likely to be committed in prosecution of their common unlawful object.
7. The Constitution Bench in Mohan Singh v. State of Punjab (AIR 1963 SC 174) which holds the field till date enunciated the principles as follows:-
8. The true legal position in regard to the essential ingredients of an offence specified by S. 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any, member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assemblies knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must have been committed by any member of an unlawful assembly, and S. 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made S. 141 inapplicable which inevitably leads to the result that S. 149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons, if that be so, as soon as two of the five named persons are acquitted the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.
Holding that before a court convicts any person or persons with the aid of section 149, there should be a clear finding regarding the common object assembly, a three Judge Bench of the Supreme Court in
Before recording a conviction u/s 149 of the Indian Penal Code, the essential ingredient of Section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. In the instant case there is neither any evidence nor any finding that any of the ingredients of Section 149 have been established by the prosecution.
8. In order to render a person liable for his constructive criminality, the terms of the section must be strictly fulfilled. As stated earlier, even though charges were framed for the offences under sections 143, 147 and 148 and also for the offences under sections 323, 324 and 302 read with section 149 IPC, the charge does not disclose what was the common object of the unlawful assembly. Accused 1 and 2 were convicted for the offences under sections 143, 147, 148 and 302 read with section 149 IPC. None of the other six accused were convicted for the offence u/s 302 read with section 149 IPC. If that be so, there cannot be a conviction of two accused alone, with the aid of Section 149 IPC, when there is no finding that apart from accused 1 and 2 there was any other member, either identified or unidentified, in the unlawful assembly. The two accused by themselves cannot constitute an unlawful assembly. Therefore there cannot be a valid conviction of accused 1 and 2 alone for the offence u/s 302 with the aid of Section 149 IPC, when there is no finding that apart from the two accused there were three more other persons, either identified or unidentified, as members of the said unlawful assembly. Similarly, the third accused was convicted for the offences under sections 143, 147, 148 and 324 read with section 149 IPC. There cannot be unlawful assembly with such a common object, involving the third accused alone. If there was an unlawful assembly and the other accused were members of the unlawful assembly, if the third accused is to be convicted for the offence u/s 324 read with section 149 IPC, necessarily the remaining accused should also be convicted for the said offence. Accused 4 to 8 were convicted only for the offences u/s 143, 147 and 323 read with section 149 IPC. If the common object of the unlawful assembly was to inflict a hurt attracting an offence u/s 323, the other accused who are the members of the unlawful assembly should also be convicted for the said offence. Therefore there cannot be a valid conviction of accused 4 to 8 alone for the said offence. True, even if prosecution has a case that all the accused are members of an unlawful assembly with a particular common object and on the evidence the court finds that the common object was not the one alleged by the prosecution but committing a lesser offence and one or two members of the unlawful assembly committed the said offence they could be independently convicted for the said offence committed by them. But if they are to be convicted for the said offence, with the aid of Section 149, there should be a finding that in addition to the said accused there are some other persons who together form five or more persons to constitute an unlawful assembly and when there is no such finding, there cannot be a valid conviction with the aid of section 149 IPC. Unfortunately this material aspect was omitted to be appreciated by the learned Additional Sessions Judge. The judgment of the Additional Sessions Judge establish that what was the common object of the ''unlawful assembly'' was not specifically considered or decided. We find no specific finding as to what was the common object of the unlawful assembly.
9. The learned Additional Sessions Judge accepted the evidence of PWs 7 and 8, to find that all the accused formed an unlawful assembly and accused 1 and 2 committed the murder by inflicting injuries on deceased Saji, which caused meningitis later while being treated at the hospital and convicted accused 1 and 2 for the offence u/s 302 read with Section 149 IPC, without taking note of the fact that there was no specific charge for the offence u/s 302 read with Section 149 IPC. It was relying only on the evidence of PWs 7 and 8, accused 3 to 8 were also convicted as stated earlier.
10. The learned Additional Sessions Judge, unfortunately, omitted to appreciate the evidence in the proper perspective. The evidence of PW16 with Ext. D1 final report in Crime No. 201 of 2002 establish that in respect of the very same incident, the said crime was registered on 17.6.2002, earlier to the registration of Crime No. 202 of 2002. The evidence also establish that as the scene of occurrence in both the cases is one and the same, Ext. P11 the common scene mahazar was prepared in both the crimes. The evidence of PW16 conclusively establish that Crime No. 201 of 2002 was the counter case of Crime No. 202 of 2002. Even though in such an event, prosecution is bound to produce copy of the F.I.R., the final report and the wound certificate of the counter case in the main case, prosecution failed to produce them. Ext. D1, the final report in Crime No. 201 of 2002 in fact was produced by the accused and got marked when PW16 was cross examined. When there is a contradictory version with regard to the very same incident in the counter case, prosecution is expected to bring to the notice of the court the said version also by producing the said relevant records in the counter case. Unfortunately, it was not done. Whatever it would be, the question is whether on the evidence on record, evidence entered by PWs 7 and 8 could be believed and relied upon, as has been done by the learned Additional Sessions Judge.
11. Ext. P1 is the first information furnished by deceased Saji while he was being treated at Taluk Headquarters Hospital, Kanjirappilly. Though the defence has a case that Ext. P1 was not recorded on 18.6.2002 as deposed by PW1, the Head Constable, and it was not signed by Saji and was created later, on the evidence, we find no reason to suspect the genuineness of Ext. P1. Ext. P1 is thus definitely the first version of the prosecution in this case, if the version given by the injured in Ext. P1 is true, the incident occurred not in the manner alleged by the prosecution or deposed by PW7 or PW8. As per the version in Ext. P1, deceased Saji, an autorickshaw driver, reached Pallikkunnu junction by about 5 p.m. on 16.6.2002. The accused seeing him, rushed towards him asking why he had teased the two sisters of accused No. 8. Saji was attacked. When Saji caught hold of the knife, he sustained injury on the fingers of his left hand. He ran and took shelter in the tea shop of PW4. Accused followed him and inflicted the injuries. Injured Saji was taken to Kanjirappilly hospital and was being treated there, if this is the true version, the origin and genesis of the incident is the attack against deceased Saji and that too for teasing the sisters of accused No. 8.
12. But, as per the final report, prosecution case is that the genesis of the incident is not as disclosed in Ext. P1. As per that version PW7 had teased the sister of the first accused. It was questioned by the accused and it was the origin of the incident, if the evidence of PW7, who is none other than the brother-in-law of deceased Saji, is to be believed, the incident occurred when he reached Pallikkunnu junction in his autorickshaw at about 5 p.m.. The first accused along with other accused, rushed towards him. First accused pulled him, out of the autorickshaw and asked him why he teased his sister. According to PW7, finding it PW8 intervened. Then the accused turned against PW8. It is his version that finding that PW8 was being attacked, deceased Saji came there and intervened. Then he was attacked. When deceased Saji caught hold of the knife in the hands of the first accused, he sustained injury on the fingers of his left hand. Saji ran and got into the tea shop of PW4. According to PW7, he did not follow either Saji or the accused due to fear. If that evidence of PW7 is believed, the version of PW8 cannot be true. The evidence of PW8 is that he found the accused beating PW7. It is pertinent to note that even PW7 has no case that he was beaten by any of the accused. According to PW8, finding PW7 being beaten, he intervened and then he was attacked by the accused. It is his case that finding it, deceased Saji reached there asking why the accused attacked his brother-in-law, evidently not PW8 but PW7. If this is the true origin and genesis of the incident, the evidence of PW7 can never be true, if the evidence of PW7 is to be believed, the evidence of PW8 cannot be true. PW7 has no knowledge as to what occurred inside the tea shop as according to him, he did not enter the hotel or witnessed what transpired inside the hotel.
13. If the evidence of PW8 is to be believed, he was attacked by the accused and then deceased Saji intervened and Saji was attacked and first accused had even attacked Saji with a knife and Saji sustained injury on the fingers of his left hand and he took shelter in the hotel of PW4. If that be so, it cannot be believed that PW8 who was earlier allegedly attacked by the accused would follow the accused to witness what transpire inside the shop. PW8 was specifically asked whether he offered any help to the injured Saji either by deed or word. He said, he did not offer any help. Though PW8 deposed that he got into the tea shop to offer him help, his evidence establish that he did not offer any help. That is not the conduct expected of PW8 if he entered the hotel to help Saji. In such circumstances, it is not possible to believe the evidence of PW8 that he was present inside the tea shop and witnessed the incident as narrated by him.
14. As against these three versions, Ext. D1 final report establish that there is a fourth version on the origin and genesis of the incident. The evidence of PW8 in cross examination shows that first accused was hit on his head with a stone by Saji. If the version given by PW7 or PW8 is true, there is no possibility for any such an incident. PW8 also deposed that he was slapped by the first accused and he in turn slapped the first accused. If the version of PWs 7 and 8 is true, there is no possibility for any such an incident. According to PW8, who is also an accused in the counter case, that incident occurred subsequent to the first incident. But that is also not possible as according to the version of PW8, deceased Saji fell sustaining the injury and he was taken to the hospital, if so, there is no possibility for Saji hitting on the head of the first accused subsequent to the first incident. It is thus clear that the evidence of PWs 7 and 8 on the origin and genesis of the incident can never be believed. The question then is whether on the evidence of PWs7 and 8 the accused could be found guilty as has been done by the learned Additional Sessions Judge. When the evidence of PW7 and PW8 are unreliable, as we have already found, the answer can only be negative. The incident occurred inside the hotel of PW4. PW4 was present in the hotel. PW4 turned hostile. He deposed that he witnessed a quarrel between a group of people consisting of 10-15 members, who entered his tea shop and found injured Saji subsequent to the incident. The evidence of PW4, if believed, would show that more than ten persons had entered the tea shop and the injuries were inflicted by some of them. By no stretch of imagination it could be said that the accused had a common object of attacking Saji and inflicting injuries, much less to cause his death. On a proper appreciation of the entire evidence, when the prosecution failed to unveil the true origin and genesis of the incident and evidence of PWs 7 and 8 establish that they are not trustworthy witnesses and they did not disclose the true incident and there is no other reliable evidence it is not possible to find the accused guilty, as has been done by the learned Additional Sessions Judge. On the facts, evidence and circumstances, appellants are at least entitled to the benefit of reasonable doubt.
The appeals are allowed. Conviction of the appellants/the accused 1 to 3 in S.C. No. 348 of 2004 of Ist Additional Sessions Court, Thodupuzha, for all the offences are set aside. They are found not guilty of the offences charged. They are acquitted. It is submitted that the appellants have executed bonds and were released on bail as directed by this Court. In such circumstances, the bail bonds executed by the appellants stand cancelled and they are set at liberty.
