Shemi @ Sohan vs State Of Kerala on 30 November, 2012

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Kerala High Court

Shemi @ Sohan vs State Of Kerala on 30 November, 2012

This appeal is filed by the accused in SC No.235/2009 challenging judgment dated 30/11/2012 by which the accused is found guilty and sentenced to undergo rigorous imprisonment for 6 months u/s 143 r/w 149 of Indian Penal Code (IPC), RI for two years u/s 147 r/w 149, 148 IPC, RI for 5 years and to pay fine of `10,000/- u/s 449 r/w S.149 IPC and in default to pay the fine, simple imprisonment for 1 year, imprisonment for life and to pay a sum of `25,000/- u/s 302 r/w 149 IPC and in default of payment of fine to undergo simple imprisonment for 2 years. The substantive sentence of imprisonment was to run concurrently.

2. This case was originally charge sheeted against 9 accused including the appellant in Crime No.51/1997 of Kanjiramkulam Police Station. Except the appellant, others went to CRA No.1478/12 -:2:- trial and accused 1 and 3 were convicted for the offence u/s 302, 449 r/w 34 IPC. Accused 2, 4 and 6 to 9 were found not guilty. The present appellant/accused was the 5th accused in the original chargesheet. He was absconding during trial and hence the case was split up and refiled.

3. According to the prosecution, a quarrel took place between two groups. One headed by the first accused Shibu and the other group headed by the deceased Madhu. On account of such disputes, the first accused was on inimical terms with deceased Madhu. On account of the enmity, accused 1 to 2 decided to do away with deceased Madhu and therefore they formed themselves into an unlawful assembly. They had the common object of causing death of the deceased. They came with deadly weapons such as sword, chopper and wild sticks at about 9.30 pm on 19/3/1997. Accused 1 to 4 trespassed into the house of CW12. 1st accused was carrying a sword with him. On seeing CW12, 1st accused uttered to kill CW12. On hearing this, he ran away from the scene. CW12 was chased by accused 1 to 4, but they could not get him. Accused thereafter went to the house of CW4, who was a friend of Madhu residing on the western side of CRA No.1478/12 -:3:- CW12's residence. On seeing accused 1 to 4, CW4 also left the scene. They entered into the house of CW4 and committed mischief causing a loss of `1,000/-.

4. At about 10.30 p.m on the same day, they trespassed into the courtyard of the tharavadu house of PW1. His house was on the western side of CW4's residence. Accused 1 to 4 trespassed into the front veranda of the house with swords, chopper and sticks. Madhu was sitting on the veranda of the house. A4 hit him with a wild stick. Thereafter, accused 1 to 3 dragged him to the courtyard of the house and all of them started beating him with wild stick on various parts of his body. First accused inflicted a cut injury with a sword on his leg and head. CW1 attempted to obstruct him. 2nd accused pushed him down. The accused together dragged Madhu to the eastern lane of the house. He was asked to get up and thereafter 1 and 3 inflicted injures on him with swords on his leg and head and he was brutally beaten up by all of them. They took Madhu to a place known as Pandarakuzhy puramboke and again he was brutally attacked. He was again taken to plavila road which was towards east of the said lane and he was laid in a motor cycle. Madhu fell CRA No.1478/12 -:4:- down from the motor cycle. First accused again asked him why he did not die and stamped him with his foot on his chest. Madhu was taken in the motorcycle. 3rd accused caught hold of him by sitting with him in the motor cycle and deceased Madhu was abandoned in the margin of Vizhinjam Poovar road at Marappalam near Qottara Sree Chidambaranath temple. Though he was taken to the Medical College hospital, he succumbed to the injuries at 12.30 in the night.

5. Crime was registered by the Station House officer, Kanjiramkulam police station as Crime No.51/1997 on the basis of the First Information Statement, lodged by CW1, Rema at 5 am on 20/3/1997. Investigation was taken over by Circle Inspector of Police, Poovar. He prepared the inquest report and seized the material objects found on the body of the deceased. Post mortem was conducted by the Deputy Police Surgeon attached to Medical College Hospital, Thiruvananthapuram. During investigation, all the accused were arrested and final charge was filed before the Judicial First Class Magistrate Court, Neyyattinkara. The case was committed to the Sessions Court, Thiruvananthapuram which was taken on file as SC No.315/1998 and made over to the Additional CRA No.1478/12 -:5:- Sessions Court. During the trial of the case, the 5th accused did not appear and therefore, his case was split up and proceedings were initiated u/s 82-83 of Cr.P.C. However, he surrendered on 31/12/2008. In the case against the 5th accused, prosecution examined 26 witnesses and marked Exts.P1 to P21. MO1 to MO15 were the articles produced and proved in the case. The fact that Madhu, the deceased in the case, had died on account of injury sustained by him on the said date is proved by the evidence of PW21, the Doctor who conducted postmortem examination. Ext.P13 is the postmortem certificate. Madhu sustained 75 ante- mortem injuries and the Doctor opined that deceased died on account of the injuries sustained by him. He also deposed that injury nos.40 and 63 were fatal injuries sufficient in the ordinary cause of nature to cause death. He had also stated that all the injuries could have contributed to the cause of death along with injury Nos.40 and 63. Injury Nos.40 and 63, being relevant, are extracted hereunder:-

"40. Contusion 2x2x0.3cm on left side of trunk 15 cm below armpit in midaxillary line. On dissection, the 5th and 6th rib of left side was found fractured. The left chest cavity contained 30 ml. of blood stained fluid. The left lung was found partially CRA No.1478/12 -:6:- collapsed."

"63. Multiple small abrasions and abraded contusions over an area 22x9 cm on front of right chest and abdomen, 6 cm to right of midline and 1 cm below the costal margin. On dissection, the abdominal cavity contained 500 ml. Of fluid blood. The liver showed multiple superficial lacerations involving its right lobe."

6. Ext.P13 certificate clearly indicates how a human body had been attacked by a group of people armed with weapons, stick etc. It could be seen that they were in search of Madhu on account of previous enmity. Initially they had come to the house of CW12, who ran away from the scene. Then they came to the house of CW4, who also ran away from the scene and thereafter they came to the wife house of Madhu. They saw Madhu sitting in the veranda, caught hold of him and started beating him. He was dragged out of the house, taken to various places, inflicted with severe injuries and he died.

7. The complicity of accused 1 and 3 in the offence has already been proved and they were convicted.

8. The only question is whether the 5th accused in the crime, namely the accused/appellant herein, was responsible for CRA No.1478/12 -:7:- the aforesaid crime.

9. PW22 who was CW12 has deposed before Court about the aforesaid incident by which the mob namely the aforesaid 9 persons along with the 5th accused had attempted to kill him. He deposed that A1 to A4 chased him. But they could not locate him in the darkness. Thereafter, all the accused proceeded towards the house of CW4, who was a friend of deceased Madhu. He also deposed that the mob ransacked the house of CW4, who also ran away from the scene.

10. CW1 who had given the First Information Statement could not be examined as she was no more. The First Information Statement Ext.P16 was marked through the Head Constable PW23.

11. PW1 is the son of deceased. He is an eye witness to the incident. He supports the prosecution case and identifies the accused as one of the person who had attacked his father. PW1 was studying in the 3rd standard at the relevant time when the incident happened. He remembers the incident. In his deposition, he stated that at about 9.30 p.m, on the said day, they were at their mother's house. Father came at that time. He gave him two CRA No.1478/12 -:8:- packets and asked him to give one packet to his sister. He asked mother for dinner. At that time, 3 persons came inside the house. Father was taken outside. He refers to their names as Dasan, Shibu and Sivadasan. Some were standing outside. Father created a hue and cry. They took his "kaili" (dhothi) and tied his mouth. He was dragged near the fence. When PW1 tried to interfere, they took him and threw him. Mother also tried to interfere. They threw the mother also away. They started hitting and inflicting blows on his father. They took him and dragged him through the road. He was not permitted to go near them and they took his father in a bullet motor cycle. He went to the nearby relatives house. It was all ransacked. Then he went to mother's house and informed the situation. He and his grand mother came and looked near the temple. He saw his father lying dead near the bridge and under the steps. He says that he could identify the accused and he also identified the 5th accused. In cross examination, he stated that at the time when his father got injured, he was studying in the 3rd standard. At that time they were residing with the family along with the father. Father's mother had a separate residence which is = kms away. On the date of incident, they had gone to their CRA No.1478/12 -:9:- mother's house. When they had gone, father was not there. He had gone out. Father came back at about 9.30-10. He got injured around 10. Five minutes after father had come, the assailants had come to their house. He had given statement to the Police on the same night itself. He also deposed that father was not beaten inside the house. When he was confronted with a statement that he was beaten outside the house, he stated that he would have stated so. Another omission pointed out that was in regard to his statement that the kaili which the deceased was wearing was taken and his mouth was tied to prevent the deceased from making sounds. Yet another omission was in regard to the fact that father was taken in a bullet motorcycle and he was not permitted to go near them. The statement that the father was found near the bridge was also pointed out as an omission. He further deposed that he also had suffered injuries and the said fact was informed to the police. Though PW1 was cross examined at length, nothing has been brought out to discredit the fact on two aspects. One is the presence of the 5th accused among the gang and that his father was dragged and taken away by the said gang.

CRA No.1478/12 -:10:-

12. PW2 is one Vijayan. He deposed that while he was watching a drama during the festival, he saw somebody proceeding in a bullet along with another person. It was driven by Shibu. Person sitting behind was Das and they were carrying the deceased Madhu. Madhu was laid in the middle of the bike. After some time, he saw Madhu under the bridge, blood soaked. Later he had come to know that Madhu was taken to the hospital. When he was asked whether KRH 938 was the number of the motor cycle, he said it is possible. He is also a witness to Ext.P1 mahazar by which a sword was recovered.

13. PW3 is Vijayamma. She deposed that all the accused in the case had come in search of her brother Aji @ Appunni. That was about 9 -9.30. They were armed with sword and other weapons. Shibu told her that he would like to see Aji. Aji and Saji were having their dinner. On coming to know about their arrival, they ran away. The assailants also ran behind them. After sometime, she heard a hue and cry in the road. She thought that it was Aji crying. But it was Madhu. They went to verify and saw Madhu lying there inflicted with injuries and blood oozing from his mouth, leg etc. She saw Das, Shibu and Sivadasan. Two persons CRA No.1478/12 -:11:- took Madhu in a motorcycle. Initially, when they took him in motorcycle, he fell down and Madhu cried aloud. Then they started stamping and hitting him and asked him why he did not die. Again, they carried him in the motorcycle. She further deposed that the accused was also one among the assailants. She has also identified MO1 series swords used for the crime.

14. PW4 is Sunitha. She also deposed about the incident on the said day and she saw a group of persons dragging Madhu through the pathway and he was taken in a scooter. Madhu was bleeding. Thereafter Madhu was found near the bridge. Thereafter, she knew that Madhu had died. She had also spoken to about the incident that they had come in search of Aji who ran away from the scene.

15. PW6 has given evidence stating that he had seen the accused along with Das going towards the house of Madhu. They were going in a bullet. They came back in the bullet. At that time, Shibu and Das were also there. In the middle of the bike, a person was laid. He heard that it was Madhu who was lying in the middle of the bike.

16. PW8 deposed that on hearing about the incident, he CRA No.1478/12 -:12:- had gone near the wooden bridge and found Madhu lying in the ash. Police came. It was found that Madhu was breathing. Car was called and he was taken to the hospital. Doctor came and examined him at the Medical College Hospital. Doctor told that Madhu had died.

17. PW11 is a witness to the scene mahazar. PW12 is a witness to Ext.P7 mahazar of vehicle KRH 0938. PW13 is a witness to Ext.P1 mahazar by which the 3rd accused had taken a sword in the presence of police. PW14 is the Village Officer who had prepared the scene plan.

18. PW15 is the Assistant Director, FSL, Thiruvananthapuram. He was asked to examine a vehicle involved in the crime. It was an Enfield bullet motorbike with Regn.No.KRH 0938. He had obtained light brown and dark brown stained blood on the seat cover. Blood was also traced on the tool box on the right side namely cover of the tool box on the left side, in the silencer, pillion rider's foot rest on the right side, the seat cover and swabs taken from the cover of the toolbox on the right side were collected, packed and sealed and handed over to the investigating officer. Ext.P9 is the said report prepared by CRA No.1478/12 -:13:- him. The FSL report was also marked as Ext.P10. Items 1 and 3 to 6 contained human blood belonging to Group O. Item No.2 contained blood which was insufficient for determining the origin and group. Item Nos. 1 was taken from the seat cover, item No.3 from the metallic sword with wooden handle and item No.4 from the soil. Human blood was belonging to the Group O.

19. PW17 and PW18 are witnesses to Ext.P12 inquest report. PW19 was a Police Constable who was on duty at the time of inquest.

20. PW20 is Gopalakrishnan. He deposed that he knew the deceased Madhu. At the time when Madhu died, the witness was in his courtyard. He saw his brother in law Aji. Some persons from the nearby family house was running towards Ajayan. He ran away. Before Ajayan running away, the assailants cornered him and asked him whether he was not the friend of Aji and Madhu and they started to manhandle him. Immediately his family members intervened and asked him not to create any problem. He further deposed that on the previous day of Madhu's death, he had gone to see the festival. He saw three persons coming to see Aji. They were Shibu, Das and Santhosh. He asked him why they CRA No.1478/12 -:14:- wanted to create a problem. Santhosh (A7) slapped him on his face. Others asked him not to do anything and that he is innocent. He therefore went home. Next day, when he went home a little late, he saw his wife and children in a gloomy situation. When asked they said that Das, Shibu and Thambu had come with chopper, sword, etc. They came in search of Aji and Aji ran away. At that time, his wife and sister went towards the road. He went behind. He saw a person taken in the back seat of a motorbike. The said person fell down. The first accused asked whether he had not died and stamped him on his chest. It was Madhu who was taken in the bike and Madhu was taken by Shibu. Dasan was sitting behind holding Madhu. There were other persons, Sivadasan, Sasi, Mohanan and Thambu. They went behind the bike. Mohanan who is the accused was also along with them. They were holding weapons, chopper, sword, sticks etc. He also identified MO1 series, the sword and MO2 series wooden sticks. He also deposed that Mohanan was carrying a wooden stick. Later he noticed that Madhu had died. The omission pointed out was that when he had given statement to Police, he did not mention that the accused was having a stick with him.

CRA No.1478/12 -:15:-

21. PW22 is Ajikumar. He had given evidence stating that on 19/3/1997, at about 9.30 night, he reached his house. When he was having his porridge, Shibu, Das, Shivadas and Thambu along with the accused, who were about 8 to 9 persons came. He heard a dog barking. His sister asked them who was coming. Shibu identified himself and when asked he said Madhu and the witness was stating something false which they will not permit. When they reached the house, he could see them properly. He ran through the kitchen door. The assailants ran behind him for some time. He ran inside the family house of Madhu. He was told that Madhu had gone to his wife's house. Madhu's brother Anilkumar alone was there. He informed him that they were trying to attack him. He and Anilkumar took shelter in a nearby place. After sometime, they came to Anilkumar's house and ransacked the entire area. He came to know about that from Madhu's wife and mother. They were hiding behind the kavu at the time when Madhu was being attacked. He heard Madhu being attacked by all the persons including the accused and he was dragged.

22. PW25 is Mythili. She is the mother of Rema (CW1). She deposed that the incident happened in her house on 19/3/1997 at CRA No.1478/12 -:16:- 10.30 p.m. She stated that she could identify the person who had attacked Madhu. She deposed that the accused is a person who had come to their house and he had beaten Madhu with a wooden stick. He had hit him on his head. They have hit him and inflicted injuries with a sword and she can identify every person. When she was asked why the name of Mohanan was not mentioned in the statement given to the police, she had no answer.

23. PW26 is Sakunthala. She also deposed that on a particular night when Madhu died, at about 10 p.m, she heard a sound. She came out. She saw 4-5 persons hitting and inflicting injuries on Madhu. When she lighted her torch, she was abused. She was told that unless she goes into the house, she will be beaten. She went into the house and looked through the window and saw that Madhu was dragged and taken. Some of the sticks which were carried by the assailants were seen on the road next day. She knew some of them who were the assailants. She was declared hostile by the prosecution.

24. The aforesaid evidence clearly proves the fact that Madhu was dragged by few people. He was hit with sticks. They inflicted cut injuries with sword, chopper etc. The injuries were 75 CRA No.1478/12 -:17:- in number. A group attack and a terror situation is evident. They dragged him from his house through the pathway and inflicted severe injuries on him. His body was taken in a motor bike. Proceeding on the belief that he died, it was stashed away near a wooden bridge.

25. These facts are rather clear from the evidence including the scientific evidence that is proved by the prosecution.

26. The only attempt of the learned counsel for appellant is to contend that the accused was not involved in the crime. But it could be seen that PW1, PW20 and PW25 had identified the presence of the accused along with the assailants. They had also stated that he was holding a stick with which he had hit the accused. The fact that the assailants had a common intention to commit murder is clear from the fact that they were carrying deadly weapons with them and all of them were armed with sticks. The fact that the deceased was having 75 ante-mortem injuries would prove the nature of attack on the body of a person. Such gruesome and brutal attack cannot go unpunished.

27. Learned counsel for the appellant submitted that the CRA No.1478/12 -:18:- accused has not committed any overt act. But in the evidence of PW24, she says that she saw the accused beating Madhu with a stick. However, the said fact was not mentioned in the 161 statement given by her to the police. Even assuming that the accused has not committed any overt act, still, when the evidence discloses that he also participated in the incident and the witnesses had identified him, the case would clearly come within the scope of S.147 of the IPC. It is true that some of the accused had been acquitted and therefore there cannot be any punishment for unlawful assembly.

28. Learned Public Prosecutor placed reliance upon the following judgments:-

(i) Khujji alias Surendra Tiwari v. State of M.P. [(1991) 3 SCC 627]. This judgment is cited for the proposition that even in a case where a fatal blow which caused the injury was given by one of the accused, when more than one person participated in the commission of the crime, the conviction can be sustained with the aid of S.34 IPC. The contention urged in that case was that when two persons are charged with commission of offence with the aid of S.34 IPC and one of them is acquitted, CRA No.1478/12 -:19:- whether the other can be convicted with the aid of S.34. The question was whether the conviction of the appellant for the substantive offence of murder can be sustained in the absence of a finding that fatal injury No.1 was caused by the appellant.

When the appellant argued on the basis of various judgments that if named accused are acquitted, except one of them, the latter cannot be convicted with the aid of S.34 or 149 IPC. On the other hand, counsel for State submitted that if the court on a reappreciation of the evidence comes to a conclusion that more than one person, may be six or seven or them had launched an attack on the deceased, he can certainly be convicted with the aid of S.34 or 149 IPC. Reference was also made to the judgment in Brathi v. State of Punjab [(1991) 1 SCC 519]. An argument was raised that the judgment in Brathi (supra) must be taken to be per incuriam since it had failed to notice Five Judge Bench decision in Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). After considering the various judgments, it was held that Brathi's case (supra) is not per incuriam and the Bench agreed with the law explained in Brathi's case (supra).

(ii) Another judgment relied upon in Masalti v.State of CRA No.1478/12 -:20:- U.P. (AIR 1965 SC 202). This judgment has been cited to emphasise the legal position that the proof that is required to allege that a person is a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined under S.141 IPC. It was held that an assembly of 5 or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of S.141, is an unlawful assembly. The crucial question would be whether the assembly consisted of 5 or more persons and whether the said persons entertained one or more of the common objects as specified by S.141. It is further held that S.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing that offence, is a member of the same assembly, is guilty of that offence and that emphatically brings out the principle that the punishment prescribed by S.149 is in a sense vicarious and does not always proceed on the basis CRA No.1478/12 -:21:- that the offence had been actually committed by every member of the unlawful assembly.

(iii) Yet another judgment relied upon is Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381] wherein also the Apex Court considered as to what amounts to common object of an unlawful assembly. Para 23 to 28 are relevant, which reads as under:-

"23. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the CRA No.1478/12 -:22:- Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti.

24. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to CRA No.1478/12 -:23:- how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, CRA No.1478/12 -:24:- offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore.)

25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge Bench of this Court in Masalti case observed as follows: (AIR p. 210, para 15) "15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful CRA No.1478/12 -:25:- assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not."

26. To similar effect is the observation in Lalji v. State of U.P. It was observed that: (SCC p. 441, para 8) "Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case."

27. In State of U.P. v. Dan Singh it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji case where it was observed that: (SCC p. 442, para

9) "While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149."

28. Above being the position, we find no substance in the plea that evidence of eyewitnesses is not sufficient to fasten guilt by application of Section

149. So far as the observations made in Kamaksha Rai case are concerned, it is to be noted that the CRA No.1478/12 -:26:- decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (see Padma Sundara Rao v. State of T.N.). It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial, as was observed in Krishna Mochi case."

29. From the legal as well as factual issues involved in the case, it is rather clear that the accused had the common intention to commit the crime. Madhu was dragged from his house and he was inflicted with grievous injuries resulting in the death of the deceased. The total number of injuries came to 75 and deadly weapons were used along with sticks. The accused was also identified by the eye witnesses as being part of the unlawful assembly. Under such circumstances, there is no escape from the liability cast upon for committing the murder. However, in so far as in an earlier proceedings, the other accused had been acquitted and only two of the accused had been convicted, it may not be appropriate to sentence the appellant under Sections 143, CRA No.1478/12 -:27:- 147 and 149 of IPC. Further, the evidence indicates that the appellant was wielding a stick and there is no evidence regarding the accused using a deadly weapon. Therefore, Section 148 IPC will not be attracted. He can only be convicted and sentenced for the offence punishable under Section 302 read with Section 34 IPC.

Accordingly, the appeal is partly allowed setting aside the conviction and sentence for offence under Section 143 read with Sections 149, 147 read with Sections 149 and 148 and Section 449 read with Section 149 IPC and sustaining the sentence and punishment for offence under Section 302 read with Section 34 IPC.

Sd/-

A.M. SHAFFIQUE, JUDGE Sd/-

P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge

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