Kerala High Court
Razique Jalal @ Razee vs State Of Kerala on 30 May, 2019
Equivalent citations: AIRONLINE 2019 KER 177
Author: Ashok Menon
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
CRL.A.No. 87 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 24/2009 of ADDITIONAL SESSIONS
COURT - IV, KOTTAYAM DATED 15-01-2014
AGAINST THE ORDER/JUDGMENT IN CP 36/2008 of JUDICIAL 1ST CLASS
MAGISTRATE'S COURT, ERATTUPETTA
CRIME NO. 9/2008 OF THIDANADU POLICE STATION , KOTTAYAM
APPELLANTS/ACCUSED NOS.6 AND 8:
1 RAZIQUE JALAL @ RAZEE
S/O.JALAL, PUTHANPARAMBIL HOUSE, CHENNADU KAVALA,
THEKKEKKARA KARA, ERATTUPETTA VILLAGE.
2 SALIM BASHEER @ SALY
S/O.BASHEER, VALIYAPARAMBIL HOUSE, CHIRAPPARA,
THEKKEKKARA KARA, ERATTUPETTA VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
SRI.S.U.NAZAR, SR. PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2019,
ALONG WITH CRL. APPEAL NOS.91, 132, 238 AND 564 OF 2014, THE COURT
ON 30.05.2019 PASSED THE FOLLOWING:
CRL.As.87, 91, 132, 238 & 564/2014
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 5TH CHAITHRA, 1941
CRL.A.No. 91 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 24/2009 of ADDITIONAL
SESSIONS COURT - IV, KOTTAYAM DATED 15-01-2014
AGAINST THE ORDER/JUDGMENT IN CP 36/2008 of JUDICIAL 1ST
CLASS MAGISTRATE'S COURT, ERATTUPETTA
CRIME NO. 9/2008 OF THIDANADU POLICE STATION, KOTTAYAM
APPELLANT/ACCUSED NO.3:
AJMAL
S/O.THAJUDEEN,THADICKAPARAMBIL HOUSE,
MANTHAKKUNNU, THEKKEKKARA KARA, ERATTUPETTA
VILLAGE, (KOTTAYAM DISTRICT).
BY ADV. SRI.B.RAMAN PILLAI (SR.)
SRI.M.VIVEK
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.R.ANIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA.
BY ADV.S.U.NAZAR, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019 ALONG WITH CRL. APPEAL NOS.87, 132, 238 AND 564
OF 2014, THE COURT ON 30.05.2019 PASSED THE FOLLOWING:
CRL.As.87, 91, 132, 238 & 564/2014
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 5TH CHAITHRA, 1941
CRL.A.No. 132 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 24/2009 of ADDITIONAL
SESSIONS COURT - IV, KOTTAYAM DATED 15-01-2014
AGAINST THE ORDER/JUDGMENT IN CP 36/2008 of JUDICIAL 1ST
CLASS MAGISTRATE'S COURT, ERATTUPETTA
CRIME NO. 9/2008 OF THIDANADU POLICE STATION, KOTTAYAM
APPELLANT/ACCUSED NO.9:
SABEER
SON OF HANEEKUTTY RAWTHER, THUNDIYIL HOUSE,
CHENNADU KAVALA, THEKKEKKARA KARA, ERATTUPETTA
VILLAGE
BY ADV. SRI.S.RAJEEV
SRI.V.VINAY
SRI.D.FIROZE
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(CIRCLE INSPECTOR OF POLICE, ERATTUPETTA)
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKLULAM, KOCHI 682 031.
BY ADV.S.U.NAZAR, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, ALONG WITH CRL. APPEAL NOS.87, 91, 238 AND 564
OF 2014, THE COURT ON 30.05.2019 PASSED THE FOLLOWING:
CRL.As.87, 91, 132, 238 & 564/2014
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 5TH CHAITHRA, 1941
CRL.A.No. 238 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 24/2009 of ADDITIONAL
SESSIONS COURT - IV, KOTTAYAM DATED 15-01-2014
AGAINST THE ORDER/JUDGMENT IN CP 36/2008 of JUDICIAL 1ST
CLASS MAGISTRATE'S COURT, ERATTUPETTA
CRIME NO. 9/2008 OF THIDANADU POLICE STATION, KOTTAYAM
APPELLANT/2ND ACCUSED:
ASHIQUE SALAM
S/O.ABDUL SALAM, KOCHUVEETTIL HOUSE, CHENNADU
KAVALAS, THEKKEKKARA KARA, ERATTUPETTA VILLAGE.
BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.C.P.MOHAMMED NIAS
SRI.ABHISHEK KURIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 31.
BY ADV. S.U.NAZAR, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, ALONG WITH CRL. APPEAL NOS.87, 91, 132 AND 564
OF 2014, THE COURT ON 30.05.2019 PASSED THE FOLLOWING:
CRL.As.87, 91, 132, 238 & 564/2014
-5-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 5TH CHAITHRA, 1941
CRL.A.No. 564 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 24/2009 of ADDITIONAL
SESSIONS COURT - IV, KOTTAYAM DATED 15-01-2014
AGAINST THE ORDER/JUDGMENT IN CP 36/2008 of JUDICIAL 1ST
CLASS MAGISTRATE'S COURT, ERATTUPETTA
CRIME NO. 9/2008 OF THIDANADU POLICE STATION, KOTTAYAM
APPELLANT/ACCUSED NO.1:
BIJU
S/O. BALAKRISHNAN PILLAI, VIRIYANATTU HOUSE,
MUTTAM JUNCTION, THALAPPALAM KARA, ERATTUPETTA
VILLAGE.
BY ADV. SRI.M.SUNILKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031.
BY ADV. S.U.NAZAR, SR.PUBLIC PROSECUTOR
OTHER PRESENT:
SR.PP.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, ALONG WITH CRL. APPEAL NOS.87, 91, 132 AND 238
OF 2014,THE COURT ON 30.05.2019 PASSED THE FOLLOWING:
CRL.As.87, 91, 132, 238 & 564/2014
-6-
Crl. Appeal Nos.87, 91, 132, 238 and 564 of 2014
JUDGMENT
Ashok Menon, J.
Aggrieved by the findings of the Additional Sessions Court, Kottayam accused Nos.1 to 3 , 6, 8 and 9 are in appeal before us.
2. There were 10 accused in Crime No.9/2008 registered by the Thidanadu Police Station under Sections 143, 147, 148, 341, 323, 324, 427 and 302 read with Section 149 of the Indian Penal Code. Cognizance was taken by the Judicial First Class Magistrate, Erattupetta as CP 36/2008. After compliance with the provisions under Section 209 of the Code of Criminal Procedure, the case was committed to the Court of Sessions, Kottayam, which was taken for trial on file as SC 24/2009 before the Court of Additional Sessions Judge-IV, Kottayam, who acquitted accused Nos. 4, 5, 7 and 10 of all the charges and convicted the remaining accused and sentenced them to rigorous imprisonment for three months each under Section 143 read with Section 149 IPC; rigorous imprisonment for one year each under Sections 148 and 324 read with Section 149 IPC; simple imprisonment for three months each under Section 323 read with CRL.As.87, 91, 132, 238 & 564/2014 -7- Section 149 IPC; rigorous imprisonment for six months each under Section 427 read with Section 149 IPC; and imprisonment for life and a fine of Rs 50,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year more under Section 302 read with Section 149 IPC. The convicted accused are the appellants before us.
3. The prosecution case in brief is thus:
On 27.01.2008, there were feasts in the neighbouring churches at Thindanadu and Variyanikkadu. Deceased Varkeychen @ George Thomas and his friends, who are Pws 1, 2, 4 and CW4, went to Thidanad Church in the Scorpio car bearing Regn.No.KL-5-U 2799, driven by PW1 to attend a Ganamela ( music fest), in connection with the feast in the said Church. After having watched the programme for about half an hour, they proceeded towards Variyanikkadu Church to witness the programme there. At about 9 p.m. on reaching Chemmalamattom on their way back to Thidanadu Church, two bikes driven by A9 and A3, with A6 as the pillion rider behind A3, moving in front of their car, blocked their way. PW1, Saji Joseph, had a tiff with A3 regarding the bikes not giving way resulting CRL.As.87, 91, 132, 238 & 564/2014 -8- in an altercation. After the programme got over, by about 10.45 p.m; the friends were returning home. When the car reached the place called Veyilukanampara Junction in Thidanadu kara, they saw A9 lying in wait in his bike beside the road. Soon thereafter, the other accused also came in different bikes, formed an unlawful assembly and in prosecution of the common object of the said assembly, committed riot armed with deadly weapons like sticks and brick, and wrongfully restrained the aforementioned persons, and compelled them to alight from their vehicle.
4. No sooner did the deceased and his friends alight from the vehicle, the accused attacked them. The first accused hit the deceased on the left side of his neck with MO2 stick, while the second accused hit him on the back of his neck with MO3 brick causing fatal injuries and he fell down on the road. The third accused beat PW1 with MO1 stick on his head and all over the body. Seeing the public gathering around, the accused decamped from there. The injured deceased was lifted into the car by his friends and they were proceeding towards the hospital, on reaching Chennadu Junction, they were again accosted by the accused, and A3 pelted CRL.As.87, 91, 132, 238 & 564/2014 -9- stones at the car causing the front wind screen glass to break, thereby resulting a damage worth Rs.8,000/- to PW1. The injured was first taken to IHM Hospital, Bharananganam, and from there he was referred to Medical College Hospital, Kottayam. His condition was deteriorating, and therefore, shifted to Medical Trust Hospital, Ernakulam. At about 4.45 a.m. on the following day, he succumbed to the injuries.
5. PW2, Peter, gave Ext.P1 FI statement to PW19, the Sub Inspector of Police at Thidanadu Police Station, who registered Ext.P18 FIR. Consequent to the death of the injured, the investigation was taken over by PW20, the Circle Inspector of Police, who prepared Ext.P2 inquest report, which was attested by PW3. The body was sent for autopsy to Medical College Hospital, Kottayam. PW13 is the Asst. Professor of Forensic Medicine and the Deputy Police Surgeon, who conducted Postmortem and submitted Ext.P10 report, which describes the ante mortem injuries sustained by the deceased as thus:
"1) Contusion of scalp 10x8 cm. involving the full thickness of left occipital region, its lower extent 3 cm, above root of neck and 2 cm. outer to midline.
2) Contusion of right cheek 5x4 cm.x0.5cm.
3) Abraded contusion 8x1 cm. - 2 cm.x1 cm. horizontally oblique CRL.As.87, 91, 132, 238 & 564/2014 -10- involving right side of neck and face, its lower outer extent 7 cm.
above root of neck and 10 cm. outer to midline.
The skull showed fissured fracture 8 cm. long involving the occipital bone of left side of posterrior cranial fossa, 1-1.5 cm. outer to midline, corresponding to injury No.1. Dura was intact had a bluish tint and tense, subdural clots were seen overlying right frontal and temporal lobe of brain with bilateral subarachnoid haemorrhage. The pons on sectioning showed haemorrhagic area 1.5x1 cm. The right frontal pole of brain had contusion 3x2x0.5 cm. Brain showed flattened gyri and narrow sulci. The anterior cranial fossa a right side showed fissured fracture 4 cm. long.
4) Contusion 5x4x0.5 cm. on back of right shoulder.
5) Abrasion 2x1 cm. on front of left knee."
According to PW13, injury No.1 stated above could be caused by hitting with MO3 brick and injury No.3 could be caused by hitting with a stick like MO2. and that both the aforesaid injuries were on the vital parts of the body, sufficient in the ordinary course of nature to cause death.
6. During the investigation, the statements of the witnesses were recorded. MO1 stick was recovered and seized by PW20 on the basis of Ext.P5(a) disclosure statement given by PW3 who was taken into Police custody on 08.02.2008, from the plantain cultivation of one Kaniyampadickal James as per Ext.P5 seizure mahazar attested by PW8.
7. The first accused was arrested on 31.01.2008 and he too was taken to police custody on 08.02.2008. He gave Ext.P5(a) disclosure statement to PW20 and MO2 stick was also recovered CRL.As.87, 91, 132, 238 & 564/2014 -11- from the plantain cultivation of Kaniyampadikkal James as per Ext.P4 mahazar attested by PW7.
8. The second accused gave Ext.P11 disclosure statement on 02.02.2008 which led to the recovery of MO3 brick from the courtyard of the house of Kochupurackal Tomy situated near the scene of occurrence, as per Ext.P11 mahazar, with PW14 as a witness.
9. Identification parade of all the accused was conducted on 04.03.2008 by PW17, the Judicial First Class Magistrate who filed Ext.P16 report of the identification parade. All the accused were identified by the witnesses.
10. In furtherance of the investigation, PW20 collected evidence. The dress worn by the deceased were collected as per Ext.P29. Likewise, the dresses worn by A1 to A10 were seized as per Exts.P19 to P28 respectively, which were later identified as MO4 series to MO13 series and produced before the Court vide Ext.P71. The mobile phones allegedly used by accused Nos,1, 3, 6, 7 and 8 were seized respectively vide Exts.37 to 39. Scooter and motorcycles used by accused Nos.1 to 3, 8 and 9 were seized vide CRL.As.87, 91, 132, 238 & 564/2014 -12- Exts.P30 to P34 respectively. The vehicles were all released as per Exts.P65 to 70 kychits. The arrest of the accused were recorded vide Exts.P45 to P64 arrest memos and intimations.
11. Exts.P40 and P41 are the scientific assistant's reports regarding collection of materials and Ext.P43 is FSL report, while the chemical analysis report is Ext.P44. The chemical analysis report would indicate that the materials collected had traces of human blood.
12. PW21, the Circle Inspector and Investigating Officer who succeeded PW20, completed the investigation and filed the final report.
13. The learned Sessions Judge examined PWs 1 to 21. Marked Exts.P1 to P74. Identified the material objects as MO1 to MO19. After closing the evidence for the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.PC regarding the incriminating circumstances against them. Finding that the accused could not be acquitted under Section 232 Cr.PC, they were directed to enter upon their defence. No defence evidence was adduced. However, Exts.D1 to D23 were marked to the prosecution case. CRL.As.87, 91, 132, 238 & 564/2014 -13- Based on the above evidence, the appellants were convicted and sentenced as stated earlier.
14. The learned counsel appearing for the defence would argue pointing to the frailties of the prosecution case. It is submitted that the FIR does not disclose the names of the accused persons, although PW1 and PW2 claimed that the accused were all known to them.
15. It is also submitted that the prosecution had failed miserably to establish that the accused were members of an unlawful assembly and had attacked the injured and the deceased in prosecution of the common object. It is also argued that the prosecution did not succeed in establishing that the common object of the unlawful assembly, if at all there was any, was to commit murder.
16. It is further submitted for the appellants that the test identification parade which was conducted on 04.03.2008 more than a month after the date of occurrence, could not be relied upon. Exts.D13 to D23 are the Dailies containing the pictures of the accused, and therefore, the identification of the accused in the TI CRL.As.87, 91, 132, 238 & 564/2014 -14- parade could not be relied upon. It is also submitted that in spite of the identification of the accused in the TI parade, the witnesses could identify only accused Nos.1 to 3, 6, 8 and 9 in the dock. PW2 did not identify A8 in the court, while he was identified by PW1 and PW4. The learned Sessions Judge concluded that accused Nos.4, 5, 7 and 10 were not identified by the witnesses and that is one of the reasons that ended in their acquittal. The learned defence counsel would conclude by stating that even if the entire incident as narrated by the witnesses, were true, it would only indicate that it is a chance encounter and not a pre-meditated act in prosecution of common object of the unlawful assembly. In the inquest report, which is prepared after the death of the injured, it is indicated that the assault was a result of a tiff between the injured witnesses and the deceased on one hand and about ten persons who were on bikes, on the other, regarding not allowing the car to overtake the bikes.
17. We heard Sr. Advocates, B.Raman Pillai, P.Vijaya Bhanu and Sri.K.Gopalakrishna Kurup; learned counsel Sri.S.Rajeev and Sri.M.Sunil Kumar appearing for the appellants and Sri.S.U.Nazar, learned Public Prosecutor appearing for the State. Records and CRL.As.87, 91, 132, 238 & 564/2014 -15- documents perused.
18. PWs. 1, 2 and 4 are the eye witnesses, who had testified regarding the occurrence. They were all allegedly beaten up with hands by the accused. The deceased, PW1 and PW3 were beaten up with sticks and brick too. Ext.P10 postmortem report which has been referred to by us earlier, specifies the injuries sustained by the deceased, out of which two injuries were particularly fatal and could, according to the PW13, be caused by MO-3 brick and MO-2 stick. PW11 is the Doctor who had examined the deceased at 11.25 p.m. on the date of occurrence at IHM Hospital, Bharananganam and Ext.P8 is the certificate issued by him. PW10 is the Doctor who treated and examined the deceased at Medical Trust Hospital, Ernakulam, and Ext.P7 is the certificate issued by him.
19. PW9 is the Doctor who examined PW1 at Marian Medical Centre, Arunapuram at 11.35 a.m. on 28.01.2008 and Ext.P6 is the certificate pertaining to the injuries which describes as thus:-
"Injury :-
(1) On the neck. He is conscious, oriented Lt.side µOßæµÞI¿ßºîÄßW µøáÕÞ{ߺî ÉÞ¿áµZ - 10 cm long - margins diffused
- pain - tenderness on the full width of neck. (2) Head - scalp - contusions = 3-4 number - കഴയടചതൽ. (3) Lt. fore arm - കഴയടചചതവ അടച പ ടകള . Abrasions + contusions + swelling.
CRL.As.87, 91, 132, 238 & 564/2014 -16- (4) Abdomen, Rt.Flank - അടചപ ടകൾ.
(5) Thighs - swelling - അടച പ ടകൾ. Swelling + tenderness + (6) on the Back - Full length of Lt.-Rt. Scapule - അടചപ ടകള നര "
According to PW-9, the injuries sustained by PW-1 could be caused by a stick like MO-1.
20. PW2 went to MES Hospital, Erattupetta for treatment and was examined by PW12 Doctor who issued Ext.P9 certificate indicating the injuries as thus:
"(1) Contusion over Rt. Knee.
(2) Contusion abrasion over left elbow (3 cm x 2 cm)"
According to PW12, the injuries like abrasion over the left elbow and contusion over the knee would be caused by a stick like MO1.
21. PW4 sustained only minor injuries and therefore did not seek medical assistance.
22. There is clear evidence regarding the deceased being attacked by A1 with MO2 stick and A2 with MO3 brick. There is also evidence regarding the A3 hitting PW1 and PW2 with MO1 stick . There is also the testimony of witnesses testifying regarding A3 pelting a stone at their vehicle causing the wind screen glass broken. Apart from the vague allegation regarding all the accused joined hands in beating up the witnesses and the deceased, there is no CRL.As.87, 91, 132, 238 & 564/2014 -17- specific allegation regarding the overt acts of the accused apart from A1, A2 and A3. Hence, it is important to consider whether all the accused could be found guilty by invoking the provisions under Section 149 of the IPC. It is true that prior intention in the sense of a meeting of the members of the unlawful assembly is not necessary and common object may form in the spur of the moment. It would be enough if it is adopted by all the members and is shared by all of them. A reading of Section 149 IPC would indicate that if persons armed with deadly weapons join together and go to a particular place either to take forcible possession of land or property or with the intention of accosting a person or a number of persons, it would be right to say that the members of that assembly knew that by their act, something is likely to be committed and that all the members of the unlawful assembly must be aware of that likelihood that they would be guilty under the second part of Section 149. The liability of common object could be fastened on the members of the unlawful assembly only if they knew that the offence actually committed was likely to be committed in the prosecution of the common object. Hence, the prosecution has the burden to prove that there was a CRL.As.87, 91, 132, 238 & 564/2014 -18- common object formed by the members of the unlawful assembly and that each one of them knew that the act actually committed by them was very likely to be committed. Even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such person vicariously liable for the act of the unlawful assembly. The words "in prosecution of common object" as appearing in Section 149 IPC have to be strictly construed as equivalent to "in order to attain the common object". Hence, it must be immediately connected to the common object by virtue of the nature of the object and that nature of the common object is a question of fact to be determined by considering the nature of the arms in the possession of persons, the nature of the assembly, the behavior of the members, the number and nature of the injuries sustained by the deceased or the injured etc. (See Ramachandran v. State of Kerala : (2011) 3 SCC (CRI) 677 : 2011(9) SCC 257).
23. The learned Sessions Judge in the impugned judgment, would find that the entire occurrence, which is actually in three parts at three places namely at Chemmalamattom, Veyilukanampara Junction and thereafter at Chennadu Junction, would indicate that CRL.As.87, 91, 132, 238 & 564/2014 -19- the first part of the occurrence resulting in an altercation between PW1 and A3 formed an intention on the mind of the accused to retaliate, in consequence of which the second part of the occurrence took place at Veyilukanampara. The witnesses would testify that A9 was lying in wait with the intention to waylaid the deceased and the others in the scorpio car and that would also suggest their motive to wreak vengeance. The justification of the learned Sessions Judge is that in spite of the fact that they were not armed with deadly weapons prior to the arrival of the deceased and the injured in the scorpio car, accused Nos.1 to 3 laid their hands on MOs 1 to 3 which were available at the scene of occurrence, and A3 had proclaimed by calling for a kill and as an after math, all the accused who came in bikes joined to assault the witnesses and the deceased, and these actions on the part of the accused would indicate that common object was formed at the spur of the moment. The common object of the accused is further fortified by the fact that even though the accused had decamped from the scene of occurrence, a second part of the occurrence took place. They waited for the injured at Chennadu junction with the specific intention to thwart the attempt in removing CRL.As.87, 91, 132, 238 & 564/2014 -20- the injured/deceased to the hospital on time. The learned Sessions Judge has also noticed that the assailants had while decamping from the scene of occurrence had shouted "one has fallen". All these put together, would indicate that the accused were all acting in prosecution of the common object to commit murder.
24. The learned Public Prosecutor argues that the findings of the learned Sessions Judge in this regard are perfectly justifiable and there is absolutely no reason for this Court to interfere with that findings.
25. In 2017 KHC 6233 [Kattukulangara Madhavan (dead) thr. Lrs. v. Majeed and Others], it was held that participation in assembly by accused with intention to fulfill the object, depends on conduct of accused attempting to prevent assembly from accomplishing unlawful object and disassociating from assembly inferences inculpatory participation.
26. In (2012) 3 SCC 221 [Roy Fernandes v. State of Goa and Others], it was held that in the absence of any evidence, leave alone credible evidence, it is not possible to hold that the accused persons had come to the place of occurrence with the common CRL.As.87, 91, 132, 238 & 564/2014 -21- object of killing the deceased. The commission of offence of murder of the deceased itself was not the common object of unlawful assembly.
27. We have no dispute with the proposition that common object may be formed at the spur of the moment, and that prior meeting of minds or a formal assembly consisting of the members of the unlawful assembly to commit a particular crime may not be essential. The precedent on the point referred to earlier would indicate that the knowledge of the members of the assembly that the act which actually occurred was very likely to be caused by their acts, is sufficient to make them vicariously liable for the ultimate consequences. But, in the instant case, what we see from the evidence is that the first part of the occurrence at Chemmalamattom was only an altercation between PW1 and A3 in the presence of A6 and A9 with regard to the bikers not giving way and passage to the car driven by PW1 for overtaking. The altercation also did not last long enough so as to form a vengeance in the mind of A3, A6 and A9 so as to garner support of the remaining accused to form an unlawful assembly with the common object of committing murder, particularly CRL.As.87, 91, 132, 238 & 564/2014 -22- of the deceased, because the altercation was only with A3 and PW1, and the deceased had nothing to do with the altercation. Under the circumstances, we are of the opinion that the accused definitely did not have a common object of murdering the deceased. It is also relevant to note that had the accused entertained the common object to commit murder or even previous act, they would have been lying in wait for the scorpio car armed with deadly weapons. None of the prosecution witness has a case that the accused had accosted them at the scene of occurrence armed with deadly weapons. It is only after the witnesses alighted from the car, PW1 had a conversation with A9 and accused Nos.1, 2 and 3 picked up the weapons which were available there and attacked the passengers in the car, including the deceased. Even if A3 had called for others to kill, it could not have been the deceased because he only had a vengeance against PW1, and therefore, the entire occurrence as appeared to us from the oral testimony of witnesses would indicate that it is only a chance encounter without any premeditated motive in prosecution of common object.
28. It is also pertinent to note that PW1 had testified that he CRL.As.87, 91, 132, 238 & 564/2014 -23- had a very friendly conversation with A9 in the beginning after he alighted from the car at the scene of occurrence. It is also testified that when the accused went to attack the passengers of the car, including PW1, A9 had prevented others from causing injuries. This particular statement in the testimony of PW1 clearly exonerated A9 of the allegations of having acted in prosecution of common object of committing murder. He was not even wielding any weapon in his hands. In fact, except A1, A2 and A3, none of the other accused had picked up any weapon from the scene of occurrence. Even A1 and A3 had picked up sticks, which were hanging at the scene of occurrence as part of the decoration done in connection with the Church festival. MO3 brick was picked up by A2 from the side of the road abruptly during the scuffle that ensued in consequence of the passengers of the car alighting. Under the circumstances, we are of the considered opinion that apart from A1, A2 and A3, none of the other accused could be guilty for attacking the deceased, PW1 and PW2. The prosecution has not succeeded in establishing that there was formation of an unlawful assembly acting in furtherance of common object. The finding of the learned Sessions Judge roping in CRL.As.87, 91, 132, 238 & 564/2014 -24- all the appellants resorting to Section 149 is therefore not held good. It is also pertinent to note that none of the accused were earlier armed with deadly weapons and therefore it cannot be said that they were guilty of committing riot armed with deadly weapons, an offence punishable under Section 148 of the IPC.
29. The next point that arises for consideration before us is regarding the identity of the accused in consequence of the test identification parade.
30. In 2004 (3) KLT 282 [Rasi v. State of Kerala], a Division Bench of this Court has held that test identification parade held after the pictures of the accused appeared in newspapers cannot be relied on to determine the identity of the accused.
31. In 1998 SCC (Cri) 1527 [Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra and Others], it was held that identification in TI parade and in the court became worthless when the photographs of the suspects were shown to the witnesses before the TI parade.
32. In 1999 SCC (Cri.) 378 [Vijayan v. State of Kerala], it was held that the test identification parade was rightly disbelieved by CRL.As.87, 91, 132, 238 & 564/2014 -25- the trial Judge when not only the photograph of the accused was shown to the witness but also in all local newspapers his photograph was published.
33. In AIR 2007 SC 1729 [Ravi @ Ravichandran v. State Rep. By Inspector of Police], it was held that in cases where FIR is registered against unknown persons, an identification parade should be held as early as possible, so as to exclude the possibility of the accused being identified either at the Police Station or some other place by the concerned witnesses or with reference to the photographs published in the newspaper.
34. It is pertinent to note that the test identification parade was conducted more than a month after the date of occurrence which by itself would plant a question mark on the identity established by virtue of Ext.P16. Exts.D13 to D23 indicate that the pictures of all the accused had appeared in the Dailies of the locality, opening up the opportunity for the witnesses to identity the accused.
35. Moreover, only PW-1 alone has testified about knowing all the accused even prior to the occurrence, though not by their names. PWs 2 and 4 did not know them at all. Therefore, the CRL.As.87, 91, 132, 238 & 564/2014 -26- identification of the appellants before the court by PWs1, 2 and 4 is something which cannot be entirely relied upon. It is also pertinent to note that PW2 did not even identify A8 in the court. The argument of the learned counsel for the appellants that the FIR does not disclose the names of the accused is not of much importance because PW2 who has given Ext.P1 FI statement, admits that he only knew some of the accused by sight and that it was PW1 who knew all of them, and that he had ascertained their names and other details from PW1 at a later point in time.
36. In view of our findings that Section 149 is not attracted, the prosecution case of the accused forming an unlawful assembly under Section 143 and committing the consequential offence under Sections 147 and 148 would all fall to ground, and the only conviction that can be sustained is one under Sections 341, 323, 324, 427 and 302 read with Section 34 IPC as against A1, A2 and A3. A6, A8 and A9 will have to be acquitted under Section 235 Cr.PC.
37. In the result, Criminal Appeal No. 87 of 2014 filed by A6 and A8, and Criminal Appeal No. 132 of 2014 filed by A9 are allowed and they are found not guilty of the entire accusation against CRL.As.87, 91, 132, 238 & 564/2014 -27- them, and acquitted. The bails bonds executed by them shall stand cancelled. They are set at liberty.
Criminal Appeal Nos. 564 of 2014, 238 of 2014 and 91 of 2014 filed by accused 1 to 3 respectively, are allowed in part. The conviction of these appellants under Sections 143, 147, 148 r/w Section 149 is set aside and accused Nos.1, 2 and 3 are found guilty of having committed offences punishable under Sections 341, 323, 324, 427 and 302 r/w Section 34 IPC and convicted there under. The findings of conviction of the court below as regards accused Nos.1 to 3 stands modified. The sentence awarded to them by the learned Sessions Judge for the offence for which they are found guilty appears to be reasonable, which we do not intend to interfere. Steps shall be taken against them to make them undergo the remaining part of the sentence. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON JUDGE jg