KOTIA PRAKASHAN AND ORS.versusSTATE OF KERALA

A                      KOTIA PRAKASHAN AND ORS.
                                          v.
                              STATE OF KERALA

                              DECEMBER 11, 1997

B               [M.K. MUKHERJEE AND K.T. THOMAS, JJ.)

          Penal Code, 1860 : Sections 149, 302/149 and 307/149.

           Group livaby---Riotous mob swrounded house of PW-7 and attempted
C   to commit murder of deceased and cause injwies to others-Subsequently,
    mob chased the deceased for about half a kilometer and killed him-17iere
    was no evidence to show that tlze five accused persons afro chased the
    deceased-Held: Person who ceases to be a member of the unlawful assemb-
    ly before commission of the offence, not liable for the offence with the aid of
D   S. 149 !PC--ln the circumstances of the case a conclusive inference that the
    five accused persons also continued to be the members of the unlawful
    assembly which killed the deceased, cannot be drawn--171ey are entitled to
    the benefit of reasonable doubt regarding their liability for murde1~Howeve1;
    they are liable for the offence under S.3071149.

E         The live appellants-accused were convicted and sentenced for offen-
    ces under Sections 143, 147, 447, 449, 324, 326 and 302 read with Section
    149 of the Penal Code, 1860. Th~ High Court upheld the convictions and
    sentences of the live appellants. Hence this appeal.

F       According to the prosecution, a riotous mob including the live
  accused persons surrounded the house of PW-7 and started pelting stones
  and hammering the windows of the said house. Realising that it was not
  safe to remafo there the deceased opened the door and ran for his life. The
  mob then chased the deceased for about half a kilometer to the house of
G one K where they killed the deceased. During the trial PW-2 had stated
  that all the persons who had surrounded the house of PW 7 did not follow
  the deceased to the house of K where the deceased met with his death.

           Disposing of the appeal, I.he Court

H          HELD : 1. To hold a person vicariously liable under Section 149 of
                                          408
                                                    '
         KOTIAPRAKASHAN v.STATE[M.K.MUKHERJEE,J.]                       409

the Indian Penal Code, 1860 for a particular offence committed by an           A
unlawful assembly it has to be conclusively proved that he was a member
of the unlawful assembly at the time of commission of that offence. In other
words, if the person arraigned ceases to be a member of the unlawful
assembly before commission of the offence he cannot be held liable for the
offence with the aid of Section 149 I.P.C. Since in the instant case the
                                                                               B
possibility that the appellants might not have chased the deceased, when
the other member of the mob went to the house of Kand killed him, cannot
be reasonably excluded, they are entitled to the benefit of reasonable doubt
regarding their liability for the murder, There is no evidence to show that
the five appellants also chased the deceased. Hence, a conclusive inference
that the five appellants also continued to be the members of the unlawful      c
assembly, cannot be drawn. [414-B-D]

       2. In the proved facts and circumstances, therefore, the only con-
clusive inference that can be drawn against the five appellants is that they
were the members of an unlawful assembly which had shared the common           D
object of committing the murder of the deceased and that in furtherance
of their c11mmon object they criminally trespassed into the house of PW-7
and attempted to commit his murder. Resultantly, the conviction of the
five appellants under Section 302/149 l.P.C. for the murder of the deceased
cannot be upheld, but they would be liable for the offence under Section
                                                                               E
307 read with Section 149 I.P.C. for attempting to commit the murder of
the deceased in the house of PW-7. [414-D-F]

      CRIMINAL APPELLATE JURISDICTION                     Criminal Appeal
Nos. 1947-1949 of 1996.
                                                                               F
     From the Judgment and Order dated 26.2.96 of the Kerala High
Court in Cr!. A. Nos. 334-36/94.

      Y.A. Arunachalam and R. Satish for the Appellants.

      G. Prakash for the Respondent.                                           G
      The Judgment of the Court was delivered by

      M.K. MUKHERJEE, J. Fourteen persons were tried by the Sessions
Judge, Thalassery for rioting, criminal trespass, murder and other CO!,'Ilate
offences. The trial ended in an order of acquittal of four of them and H
    410                   SUPREME COURT REPORTS [1997] SUPP. 6 S'.C.R.

A conviction and sentence of the other ten under Sections 143, 147, 447, 449,
    427, 324, 326 and 302 read with Section 149 I.P.C. Against their convictions
    and sentences the ten convicts filed separate appeals in the High Court.
    While disposing of the appeals by a common judgment, the High Court
    acquitted five of them, but upheld the convictions and sentences of the five
    appellants before us (who were arrayed as Al, A4, A6, A7 and AS in the
B
    trial Court and hereinafter will be so referred to).

          2. Briefly stated, the prosecution case is as under :-

          (a) Vishwanathan (the deceased) was a member of'the Rashtrya
C Sewak Sangh (RSS) whereas the appellants are the sympathisers of the
    Communist Party (Marxist), (CPM). These two parties have a long stand-
    ing political rivalry and it has percolated down to students of some schools.
    On August 3, 1989, around 9 AM. a group of students belonging to Kerala
    Students Union, (KSU) and Akhil Bhartiya Vidya Parishad (ABVP)
D   (which own allegiance to RSS) of Government High School, Aroli in
    Pappinissery, resorted to strike as a mark of protest against the inadequate
    facilities given to the students of the local Government Engineering Col-
    lege. Another group of students, who were sympathisers of CPM and
    members of its students' wing, namely the Students Federation of India
    (SFI), resisted the strike. Over that issue there was an exchange of blows
E   between the two groups. Following the rumpus, some outsiders belonging
    to CPM including the appellants, came to the school compound and beat
    some of the students belonging to ABVP.

         (b) A little later Vishwanathan (the deceased), a local leader of RSS,
F along with Kauprath Rajesh (P.W.5) came there and openly gave out that
  if any body dared to attack students of ABVP he would be taught a good
  lesson and then left the place. Muralidharan (P.W.2), Pramod (P.W.3) and
  some other students of their group then proceeded to Keecheri Hills where
  RSS have a Sakha, (a place where RSS workers meet for their organisa-
  tional activities). On the way they met Rajendran and Jayarajan (P.W.4),
G two other RSS workers, who also accompanied them. When, reaching
  there, they were discussing with Vishwanathan and Rajesh about the
  necessity of taking the injured to the hospital for treatment, a mob of 15/20
  persons, including the appellants, came there armed with daggers, sticks,
  iron rods and stones and attacked them. On being so attacked they ran for
H their life in different directions. While P.W. 4 rushed into the house of
         KOTIAPRAKASHAN v. STATE[M.K.MUKHERJEE,J.]                       411

Santha (P.W.6), which is near the Sakha, deceased Viswanathan, P.W.2           A
and Rajendran took shelter in the neighbouring house of Parvathi (P.W.7)
and Kunhiraman (P.W.8). The other RSS workers escaped to the nearby
jungle. In chasing them the riotous mob came to the house of P.W.7 and
surrounded it. The mob then started pelting stones towards and hammering
the windows of the house. Probably, realising that it was not safe to remain
there Vishwanathan opened tlie door and ran for his life. The mob then
                                                                               B
chased Vishwanathan who, finding no other alternative, e~red the house
of one Kumaran, which was at a distance of half a kilometre from the house
of P.Ws. 7 & 8. The mob followed him there and after killing him brutally
disappeared from the scene.
                                                                               c
      (c) Ashraf (P.W.1), a resident of the neighbourhood, went to
Valapattanam Police Station and lodged a report about the incident. On
that report a case was registered by S.I. Domminic (P.W.19), against
unknown members of CPM. Shri P. Jayaraj (P.W.21), Circle Inspector of
Police, took up investigation of the case and first went" to the house of      D
Kumaran, held inquest over the dead body of Vishwanathan and sent it for
post mortem examination. After completion of investigation he initially
submitted a charge sheet against eight of the accused persons and
thereafter supplementary charge sheets against the other six.

     3. The appellants denied their involvement in the offences alleged
                                                                               E
and contended that they had been fahely implicated due to political rivalry.

       4. In support of its case the prosecution examined twenty one
witnesses and defence one. Of the witnesses examined by the prosecution,
Ashraf (P.W.1), Santha (P.W.6), Smt. Parvathi (P.W.7), Kunhiraman              F
(P.W.8) and Smt. Sudha (P.W.9), daughter of Kumaran, in whose house
Vishwanathan ultimately met with his death, turned hostile and did not
support its case. The prosecution, therefore, rested its case upon the
evidence of Muraleedharan (P.W.2), Pramod (P.W.3), Jayarajan (P.W.4),
Rajesh (P.W.5) and Prasad (P.W.13) to prove the incident and the               G
participation of the persons arraigned in it.

      5. On a detailed discussion of the evidence adduced during trial,
including that of Unnikrishnan (D.W.l), the trial Court recorded the
following findings :-                                                          H
    412                   SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A           (i)    in the morning of August 3, 1989 there was a fracas between
                   the students of the two rival groups, one, owning allegiance
                   to RSS and the other to CPM in the Government High
                   School, Aroli in which some outsiders belonging to the latter
                   took sides;

B           (ii) on hearing about the incident the deceased Vishwanathan, a
                 leader of RSS, came to the school and hurled threats and
                 abuses on the sympathisers of the rival group;

            (iii) a few hours later when. Vishwanathan along with P.Ws. 2, 3,
c                 4, 5 ai.d some other students of the school and one Rajendran
                  were confabulating al their Sakha, 15/20 CPM workers,
                  armed with deadly weapons including daggers, sticks, iron
                  rods and stones, came there and attacked them. Owing to
                  such attack P.W. 4 sustained grievous injuries, including frac-
                  ture of the left upper incisor and left canine, and P.Ws. 2, 5
D                 and Rajendran sustained simple injuries;

            (iv) on being so attacked when Vishwanathan, P.W.2 and
                 Rajendran took shelter in the nearby house of P.W.7 the mob
                 trespassed there and started pelting stones and breaking the
                 doors and windows to compel them to come out of the house;
E
             (v)   when apprehending danger to his life, Vishwanathan darted
                   out of the house of P.W.7 and took shelter in the house of
                   Kumaran, the mob chased him there and beat him mercilessly
                   causing sixty two bodily injuries, which resulted in his instan-
F                  taneous death; and

          (vi)     ten of the accused persons, including the five appellants, were
                   members of the riotous mob which committed the above
                   offences.

G        5. In re-appraising the evidence, the High Court found that the
   evidence of P.W.13, who claimed to have seen the riotous mob to bring the
   dead body of Vishwanathan from inside the house of Kumaran and keeping
   the same on its verandah, was umeliable and accordingly left it out or'its
   consideration. However, relying upon the ocular evidence of the other four
H- eye-witnesses, namely, P. Ws. 2, 3, 4 and 5, the doctor and the Investigating
          KOTIAPRAKASHAN v. STATE [M.K MUKHERJEE, J.]                    413

  Officer, the High Court concurred with all the above findings of the trial    A
  Court qua the five appellants, giving benefit of doubt of the other five
· convicts regarding their participation.

       6. From the above quoted findings it is obvious that the incident that
 took place in the. school in the morning coupled with the role that
 Vishwanathan played immediately thereafter operated as the motive to the
                                                                                B
 group of CPM workers to attack RSS workers in general, and
 Vishwanathan in particular, at the Saleha. In that background when the
 weapons they were carrying and the manner in which they started beating
 the RSS workers, chased them from one house to another where they took
 shelter and ultimately hacked Vishwanathan to death are considered, there      c
 cannot be any manner of doubt that their common object was to commit
 his murder and cause injuries to his followers and that in prosecution of
 that common object they committed the murder and caused injuries to
 P.Ws. 2, 4 and 5.
                                                                                D
       7; The next and the crucial question is whether the concurrent
 findings of the Courts below that the appellants were guilty of the above
 offences is proper or not. To seek an answer to this question it will be
 necessary to refer to the evidence of the four eye-witnesses, namely, P.Ws.
2, 3, 4 and 5 which was found by the Courts below to be reliable. Of them
                                                                             E
P.Ws. 3, 4 and 5 identified all the five appellants as the members of the
mob which attacked and assaulted two of them (P.Ws. 4 and 5) and
 Rajendran at the Shaka. They however could not throw any light as to what
happened thereafter as they fled away. Therefore, to prove the later part
of the incident, the prosecution fell back upon the evidence of P.Ws. 2 and
13. As the evidence of P.W. 13 was found unreliable by the High Court (in F
our opinion for justified reasons) we leave his evidence out of our
consideration. That brings us to the evidence of P.W.2, on whom both the
Courts relied, more so, as he was one of the persons who sustained injuries
at the hands of the mob. After having gone through his evidence we also
find no reason to disbelieve him. His evidence fully corroborates the G
evidence of P. Ws.3, 4 and 5 that all the appellants were members of the
unlawful assembly which attacked them at the Shaka, and further proves
that they chased him, Vishwanathan and Rajendran (who could not be
examined as he had left the place and his whereabouts were not known)
to the house of P.W.7, ransacked it, and pelted stones towards them and H
      414                   SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

· · A that when Vishwanathan darted out of the house, they followed him. In .
    cross-examination, however, he stated that all the persons who had
    surrounded the house of P.W. 7 did not follow Vishwanathan to the house
    of Kumaran where, as already noticed, Vishwanathan met with his
    gruesome death. In view of the above statement of P.W. 2 a conclusive
  B inference that the five appellants also continued to be members of the
    unlawful assembly which proceeded to the house of Kumaran and killed
    Vishwanathan cannot be drawn. To hold a person vicariously liable under
    Section 149 l.P.C. for a particular offence committed by an unlawful
    assembly it has to be conclusively proved that he was a member of the
  C unlawful assembly at the time of commission of that offence. In other
    words, if the person arraigned ceases to be a member of the unlawful
    assembly before commission of the offence he cannot be held liable for the
    offence with the aid of section 149 l.P.C. Since in the instant case the
    possibility that the appellants might not have chased the deceased, when
     the other members of the mob went to the house of Kumaran and killed
  D him, cannot be reasonably excluded (in view of the earlier mentioned
    statement of P.W.2) they are entitled to the benefit of reasonable doubt
     regarding their liability for the murder. Jn the proved facts and
     circumstances, therefore, the only conclusive inference that can be drawn
     against the appellants are that they were the members of an unlawful
  E assembly which had shared the common object of committed the murder
     of Vishwanathan and assaulting other RSS workers and that in furtherance·
     of their common object they crimin:illy trespassed into the house of P.W.
     7 and attempted lo commit his murder. Resultantly, the conviction of the
     appellants under Section 302/149 l.P .C. for the murder of Vishwanathan
  F cannot be upheld, but they would be liable for the offence under Section
     307 read with Section 149 l.P.C. for attempting to commit the murder of
      Vishwanathan in the house of P.W.7.

            8. As regards their other convictions, the trial Court - and, for that
     matter, the High Court also - ought to have held, having regard to the fact
   G that the appellants were guilty of the offences under Sections 147 and 449
     I.P.C., the question of convicting them under Sections 143 and 447 I.P.C.
     which were minor offences in relation to the former two offences respec-
     tively, did not arise. However, the convictions of the appellants under
     Section 427/149 l.P.C. for causing mischief to the house of P.W.7, under
   H Section 324/149 l.P.C. for causing hurt to P.W. 5 with sharp cutting
            KOTIAPRAKASHAN v. STATE[M.K.MUKHERJEE,J.]                   415

instrument, and 326/149 l.P.C. for causing grievous in.jury to P.W.4 with      A
lethal weapons must be upheld.

       9. On the conclusions as above, we set aside the convictions and
sentences of the apptllants under Sections 143, 447 and 302 read with
Section 149 I.P.C. but convict all of them under Section 307/149 I.P.C. and
sentence each of them to suffer rigorous imprisonment for 7 years. We also     B
maintain their convictions and sentences under Sections 147, 324/149,
427/149 and 449/149 I.P.C. All their substantive sentences shall run concur-
rently.

         10. The appeals are, thus, disposed of.
                                                                               c
v.s.s.                                                Appeals disposed of.




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