Kerala High Court
Anandu vs State Of Kerala on 10 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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CrlAppeal Nos.15, 92 and 95 of 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 10 DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.A NO. 15 OF 2019
CRIME NO.439/2010 OF Kollam East Police Station, Kollam
AGAINST THE JUDGMENT DATED 27.11.2018 IN SC NO.955 OF 2014
OF II ADDITIONAL SESSIONS COURT, KOLLAM ARISING OUT OF THE
JUDGMENT DATED IN CP NO.100 OF 2014 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II, KOLLAM
APPELLANTS/ACCUSED NOS.2, 4 AND 5:
1 ANANDU, AGED 26 YEARS
S/O.RAJENDRAN, VISHWAMBHAVAN, ODAPPURAMTHITTAYIL
PADINJATTATHIL, UDAYAMARTHANDAPURAM, MUNDAKKAL, FROM
KAMPIYITTAZHIKAM, THEKKEVILA CHERRY, MUNDAKKAL,
KOLLAM.
2 PRIYALAL, AGED 27 YEARS
S/O.SURYAPRABHAN, VISHWABHAVAN, ODAPPURAMTHITTAYIL
PADINJATTATHIL, UDAYAMARTHANDAPURAM, MUNDAKKAL.
3 BINU, AGED 26 YEARS
S/O.CHANDRA BHANU,VAYALIL PUTHEN VEEDU @ BHADRA HOTEL,
NEAR THUMBARA TEMPLE, UDAYAMARTHANDAPURAM, MUNDAKKAL.
BY ADVS.
SRI.R.ANIL
SHRI.M.SUNILKUMAR
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SHRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SHRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
SMT.MANJU E.R.
SRI.E.VIJIN KARTHIK
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI-682031.
ADV.RENJITH T R, SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2025, ALONG WITH CRL.A.95/2019, 92/2019, THE COURT ON
10.07.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 10 DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.A NO. 95 OF 2019
CRIME NO.439/2010 OF Kollam East Police Station, Kollam
AGAINST THEJUDGMENT DATED 27.11.2018 IN SC NO.955 OF 2014
OF II ADDITIONAL SESSIONS COURT, KOLLAM ARISING OUT OF THEJUDGMENT
DATED IN CP NO.100 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KOLLAM
APPELLANT/ACCUSED NO.3:
ROBSON @ ROBIN, AGED 27 YEARS
S/O.PETER SELVARAJ,
ANCHARANDI LINE HOUSE NO.6,
NEAR CHAYAKKADA MUKKU,
THEKKEVILA CHERRY, MUNDAKKAL VILLAGE,
PATTATHANAM,
VADAKKEVILA.
BY ADVS.
SHRI.CIMIL CHERIAN KOTTALIL
SMT.MINTU CHERIYAN
SMT.JUANITA ROCH
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RESPONDENT/STATE:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM- 682031, (CRIME NO.439/2010 OF KOLLAM POLICE
STATION, KOLLAM DISTRICT).
ADV.RENJITH T R, SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON23.06.2025,
ALONG WITH CRL.A.15/2019 AND CONNECTED CASES, THE COURT ON
10.07.2025 DELIVERED THE FOLLOWING:
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CrlAppeal Nos.15, 92 and 95 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 10 DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.A NO. 92 OF 2019
CRIME NO.439/2010 OF Kollam East Police Station, Kollam
AGAINST THE JUDGMENT DATED 27.11.2018 IN SC NO.955 OF 2014
OF II ADDITIONAL SESSIONS COURT, KOLLAM ARISING OUT OF THEJUDGMENT
DATED IN CP NO.100 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KOLLAM
APPELLANT/ACCUSED NO.1:
IMMANUEL @ TONY, AGED 27 YEARS
S/O. SEBASTIAN, OCC STUDENT R/AT-PALAZHIKAM VEEDU,
A.R.A NAGAR, UDAYAMARTHANDAPURAM CHERRY,
MUNDAKKAL, KOLLAM DISTRICT
(NOW LODGED AT POOJAPPURA CENTRAL PRISON,
THIRUVANANTHAPURAM).
BY ADVS.
SRI.RENJITH B.MARAR
SRI.SADCHITH.P.KURUP
SMT.LAKSHMI.N.KAIMAL
SRI.C.P.ANIL RAJ
SMT.SINDHU K.S.
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RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY KOLLAM EAST POLICE STATION,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM KOCHI-18.
ADV.RENJITH T R, SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2025, ALONG WITH CRL.A.15/2019 AND CONNECTED CASES, THE
COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
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'CR'
JUDGMENT
K.V. JAYAKUMAR, J.
These criminal appeals are preferred impugning the judgment of the
Additional Sessions Court-II, Kollam, in S.C.No. 955 of 2014. The appellant in
Crl.A.No.92 of 2019 is the 1st accused. The appellants in Crl.A.No.15 of 2019 are
accused Nos. 2, 4 and 5. The appellant in Crl.A.No.95 of 2019 is the 3rd accused.
The appellants/accused Nos. 1 to 5 faced the trial before the Sessions Court, Kollam
for the offences punishable under Sections 143, 147, 148, 341, 323 & 302 r/w 149
of the Indian Penal Code.
2. The learned Sessions Judge found the appellants guilty, convicted and
sentenced them. Accused Nos. 1 to 5 were sentenced to undergo imprisonment for
life and to pay a fine of Rs.25,000/- each and in default of payment of fine, shall
undergo rigorous imprisonment for a further period of 3 months each, for the
offence under Section 302 r/w 149 of IPC. They were also sentenced to undergo
imprisonment for various terms under Sections 143, 147, 148, 341, 323 r/w 149 of
IPC. However, accused No.1 was acquitted for the offence punishable under Section
147 IPC and accused Nos.2 to 5 were acquitted for the offence punishable under
Section 148 IPC.
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Prosecution case
3. The prosecution alleges that on 11.03.2010 at about 8.45 p.m.,
accused Nos. 1 to 5 formed themselves into an unlawful assembly armed with a
dagger and in furtherance of the common object of that assembly, intercepted the
motorcycle ridden by the deceased Sarath at Mythri Junction of Mundakkal Village,
on the Thumpara- Amruthakulam public road, along with PW12, Anu Joseph
Kuruvila and PW17, Vignesh as pillion riders, and attacked them. The prosecution
further alleges that when accused No.1, Immanuel @ Tony, attempted to inflict a
stab injury on PW12, the deceased swerved to obviate the attempt of stab. The
deflected dagger happened to hit on the right thigh of accused No.1, whereby he
sustained injury. In the meanwhile, accused No.1 chased Sarath and repeatedly
stabbed him in the back, as a result of which he succumbed to the injuries. It is
further alleged that all the appellants inflicted blows on the deceased Sarath, PW12,
and PW17, and thereby they alleged to have committed the offences
aforementioned. The motive alleged by the prosecution is that PW15, Kuruvila
John, the cousin of PW12, had eve-teased PW1 (Reshma) while she was returning
to her home riding a bicycle.
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Registration of the crime and investigation
4. PW13, Anoop Kumar, lodged Ext.P11 FIS before PW10, Sub-Inspector
of Kollam East Police Station. On the basis of Ext.P11 FIS, PW10 registered Ext.P9
FIR in crime No.439 of 2010 at 11 p.m. on 11.03.2010.
5. On 12.03.2010, PW18, Sri. S. Vijayan, Circle Inspector, took up the
investigation. He conducted the inquest at about 8.30 a.m. and prepared Ext.P1,
Inquest Report, in the presence of the witnesses. He seized four material objects
during the inquest. Thereafter, he prepared Ext.P2, Scene Mahazar, in the presence
of the witnesses. The materials seized at the time of inquest were forwarded to the
Court. The samples collected from the place of occurrence were forwarded to the
Forensic Science Laboratory (FSL) as per Ext.P15, forwarding note. On the same
day, he arrested accused Nos.1 to 5 after preparing the arrest memo, Inspection
memo and arrest intimation.
6. PW18 has seized two mobile phones from accused No. 3. After
preparing Ext.P6, Inventory Mahazar, those mobile phones were forwarded to the
Court as per Ext.P24, property list. He questioned accused No.1 while in police
custody and recorded his confession. On the basis of the disclosure statement, he
recovered a shirt and pant allegedly worn by accused No.1 from the back side of
the birds nest of his house. PW18 has also recovered MO-3 dagger, from the
bushes near the property of accused No.1.
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7. PW18 questioned PW8, Dr. Philip K. Thomas, Chief Medical Officer,
Benziger Hospital, Kollam, who conducted the autopsy of the deceased Sarath, and
issued Ext.P10 postmortem certificate. PW18 completed the investigation and filed
the charge sheet before the Judicial First Class Magistrate Court-II, Kollam. The
learned Magistrate after completing the preliminary steps, committed the case to
the Sessions Court, Kollam. The Sessions Court, Kollam, made over the case to the
Additional Sessions Court-II, Kollam for trial and disposal.
Proceedings in the trial court
8. The trial court framed the charge, after hearing the prosecution and
the defence. When the charge was read over to the accused, they pleaded not
guilty and claimed to be tried.
9. In order to prove the prosecution case, PWs. 1 to 18 were examined
and Exts. P1 to P30 were marked. MOs. 1 to 12 were also identified and marked.
After the closure of the prosecution evidence, the accused were examined under
Section 313 (1)(b) of Cr.P.C. They denied the incriminating circumstances put to
them and maintained their stand of innocence. On the side of defence, Exts.D1 to
D3, the case diary contradictions were marked.
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The contentions of the appellants
10. The learned counsel for the appellants submitted that the impugned
judgment of the learned Sessions Judge is patently illegal and unsustainable. The
appreciation of evidence by the trial court is faulty.
11. The prosecution has failed to prove the motive which is the driving
force in a crime. The version of PWs. 12 and 17, the eyewitnesses lack credibility
and trustworthiness. The non-citing and non-examination of the material witnesses
constitute a serious lapse on the part of the Investigating Officer. PWs. 12 and 17
have not stated any names of the assailants to the doctor who examined the
deceased Sarath. It is further submitted that the blood-stained clothes of PWs. 12
and 17 were not seized by the police.
12. Adv. Renjith B. Marar, the learned counsel for accused No.1 submitted
that a counter case has also been registered on the basis of the complaint of the
accused and that was not properly investigated by the police. Accused No.1 also
sustained injury on his thigh. The wound certificate of accused No.1 was
suppressed by the prosecution.
13. The learned counsel further submitted that the recovery of MO1-
dagger is not properly proved by the prosecution. Placing reliance on the decision
in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh1, the learned
1
2022 KHC OnLine 7083
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counsel for the petitioner submitted that the recovery of MO1 dagger is not proved
by the prosecution.
The contentions of the Prosecution.
14. The learned Public Prosecutor submitted that the impugned judgment
of the learned Additional Sessions Judge is legally sustainable. The trial court
appreciated the evidence on record, both oral and documentary, and arrived at a
proper conclusion. No interference from this Court is warranted in this matter. The
version of the eyewitnesses, PWs.12 and 17 is reliable and trustworthy.
The compendium of prosecution evidence
15. The prosecution examined PWs. 1 to 18 and Exts. P1 to P30 were
marked. MOs. 1 to 12 were also identified and marked. PW1, Reshma, is the sister
of accused No.2 (Anandu). She turned hostile to the prosecution. She stated that
during the alleged time of occurrence, she was a student of 9th standard. She
stated that she never went to school along with one Tikku (PW15). PW2, Sunil is
the witness to Ext.P1 Inquest Report. PW3, Satheesh, is the witness to Ext.P2
Scene Mahazar. PW4, Stephen, is the witness to the seizure of the shirt and pant
allegedly worn by accused No.1 at the time of incident. PW5, Manu, is the witness
to the recovery MO-3, dagger. He admitted that he put his signature in the
recovery mahazar at the East Police Station, Kollam. But he does not know the
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contents of the mahazar.
16. PW6, Selvaraj, is the Head Constable, Eravipuram Police Station. He
was the witness to the seizure of nail clippings from the body of the deceased
through Ext.P5 seizure mahazar. On 13.03.2010 at about 11 a.m, he also
witnessed the seizure of MO1 and MO2 mobile phones from accused No.3
(Robinson) as per Ext.P6 seizure mahazar.
17. PW7, Johnson A., is the Village Officer who prepared Ext.P7 site plan.
PW8, Dr. Philip K. Thomas, examined the deceased (Sarath) on 11.03.2010 at
about 9.30 p.m., at Benziger Hospital, Kollam and issued Ext.P7 wound certificate.
He has noted multiple penetrating injuries on the back of chest of the deceased.
PW9, Raghunathapilla, was the ASI of Police, East Police Station, Kollam, who
discharged the scene guard duty. PW10, C. Sreekumar, is the SI of East Police
Station, Kollam, who registered Ext.P9 FIR on the basis of the information given by
PW13, Anoop Kumar. PW11, Dr. N.A. Balaram, conducted the autopsy of the
deceased Sarath on 12.03.2010, while he was working as the Assistant Professor,
Government Medical College Hospital, Thiruvananthapuram and issued Ext.P10
Postmortem certificate. In Ext.P10, he has noted as many as 12 injuries. The
injuries noted by PW11 are as follows:
1. Incised penetrating wound 4×1.5cm, obliquely placed on left side
of back of chest, its sharply cut upper inner end was 7cm outer to
midline 20cm below top of shoulder. Lower end was sqared. The
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wound was directed upwards, forwards, and to the right for a length
of 3cm through chest wall and entered chest cavity through a
wound 5.5×1.5cm in the ninth intercostal space, 2cm out to
vertebral margin, transfixed the lower lobe of left lung, cutting the
pericardium terminated in the back wall of left ventricle through a
wound 3.5cm long and 1cm deep, 5cm above apex. The wound
had minimum total depth of 7cm.
2. Incised penetrating wound 3.5x1cm, obliquely placed on left side
of back of chest, its squared upper inner end 3cm outer to midline,
28cm below root of neck. Its lower end was sharply cut. The
wound was directed upwards, forwards and to the right through
chest wall and entered left chest cavity just above attachment of
diaphragm and terminated to lower lobe of left lung at its back
aspect. The wound had a total minimum depth of 3cm left lung
collapsed.
3. Incised penetrating wound 4x 1.5cm, obliquely placed on right
side of back of trunk, its lower inner sharply cut end 1cm outer to
midline, 32cm below root of neck. Its upper end was rounded. It
showed tailing from its lower end directed horizontally to left side
across midline for a length of 6cm. The wound was directed
downwards, forwards and to the right through chest wall and
entered right chest cavity through eleventh intercostal space and
cutting the twelfth rib 8cm outer to vertebra margin. It had a total
minimum depth of 3cm.
4. Incised penetrating wound 2x1cm, horizontally placed on right
side of back of chest, its inner split end 7cm outer to midline, 30cm
below top of shoulder. Its outer end was sharp. Its inner end
showed tailing for a length of 1cm. The wound was directed
forwards and to the right through chest wall and entered right chest
cavity through tenth intercostal space 12cm outer to vertebral
margin. The wound had a minimum total depth of 3cm.
Right chest cavity contained 100ml blood.
5. Linear abrasion 3cm long, oblique on back of chest across
midline, its upper right end 29cm below root of neck and 2cm to
right of midline.
6 Abrasion 1×0.2cm on left side of front of abdomen, curved, with
convexity upwards, inner end 11cm outer to midline, 11cm above
top of hip bone.
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7. abrasion 1x 0.5cm on front of right leg just below knee.
8. Abrasion 1×0.5cm on front of right leg 9cm below knee.
9. Abrasion 1×0.8cm on front of left leg just below knee.
10. Abrasion 1x1cm on inner aspect of left ankle.
11. Superficial lacerated wound 1x1cm, with avulsion of the skin,
on sole of left foot near its inner border, at the level of root of big
toe.
12. Linear abrasion 2.5cm long on inner aspect of left elbow.
PW11 opined that the death was caused due to penetrating injury sustained to the
back of the chest. Such injuries could be caused using a sharp-edged weapon.
18. PW12, Anu Joseph Kuruvila, is an eyewitness to the incident. He
stated that the deceased, Sarath, was his friend. He testified that he along with
Sarath and PW17 (Vignesh) were travelling in a motorcycle through Amruthakulam
road on 11.03.2010. When they reached Mythrimukku at about 9 p.m., the
accused Nos. 1 to 5 were standing at that place. Upon seeing them, the accused
intercepted the motorcycle. Accused No.2, Anandu, told them that he would
retaliate PW15, Kuruvila John @ Tikku, who had allegedly eve-teased his sister.
PW12 told him that they want to move away from the place.
19. In the meantime, accused No.3 (Robson), accused No.4 (Priyalal),
and accused No.5 (Binu) beat the deceased Sarath and Vignesh (PW17). Accused
No.2, Anandu, beat PW12 on his chest, uttering the words that “he would kill him”.
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Then Anandu uttered the words "stab" and "kill", pointing towards him. In the
meanwhile, accused No.1, Immanuel @ Tony, took a dagger which was hidden on
the backside of his dress and attempted to inflict a blow on PW12. When Sarath
managed to escape the attempt to stab, the dagger hit the left thigh of accused
No.1.
20. When Sarath tried to flee from the scene, accused No.1, Immanuel @
Tony, chased him, holding the head under his armpit and inflicted stab injuries on
his back, three or four times. The deceased, Sarath, cried loudly. The blood was
oozed from the injuries. The other accused restrained PW17, Vignesh, and fisted
him. Hearing the cries, the neighbours rushed to the scene. At that time, the
accused ran towards Kallumkandam side. They took Sarath to Benziger Hospital,
Kollam. In the meantime, Sarath, breathed his last. The witness identified MO-3
dagger, and MO-4 the cover in which the MO-3 dagger was stored. He also
identified MO-5 and MO-6, the shirt and pant worn by Sarath. The witness also
identified MO-11 and MO-12, the shirt and pant allegedly worn by accused No.1,
Immanuel @ Tony.
21. In cross-examination, PW12 would say that accused Nos. 1 to 5
restrained him and fisted him. After the incident, some neighbours rushed to the
spot. The police has shown the shirt allegedly worn by accused No.1, Immanuel @
Tony, to him which contained bloodstains and a hole on the back side. Blood had
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also spilled on his motorcycle. He sustained injuries and swelling in the incident.
22. PW13, Anoop Kumar, lodged Ext.P11 FIS on 11.03.2010 at about 11
p.m. He is the brother-in-law of the deceased Sarath. He came to know about the
incident when his friend PW14, Innocent S., contacted him by phone. PW14 asked
him to come to Benziger Hospital.
23. PW14, Innocent S., is a neighbour of the deceased Sarath. He stated
that he is the owner of the motorcycle bearing No. KL-2AC-6707. He gave the
motor cycle to Sarath for his personal use. His friend PW17, Vignesh, called him
on 11.03.2010 at about 9.30 p.m. and informed him that Sarath sustained stab
injuries and asked him to inform the matter to PW13 (Anoop Kumar). The police
seized the records of the motorcycle as per Ext.P12 mahazar. PW15, Kuruvila John
@ Tikku, testified that the deceased Sarath was a friend of his brother PW12, Anu
Joseph Kuruvila. Sarath died on 11.03.2010. At that time, he was a student of 9th
standard. Accused No.2, Anandu, is his neighbour. PW1, Reshma, is the sister of
accused No.2. He and the said Reshma used to go to school together and they fell
in love. Their affair was known to accused No.4, Priyalal.
24. On 11.03.2010, while PW15 was playing cricket in the school ground,
four persons came in two motorcycles and they asked him to mount on the bike of
accused No.2. He identified those persons as accused Nos. 2 to 4. They took him
near to the house of one Earnest and accused No.2 hit him on his chest. Accused
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No.2 asked him that why he was disturbing his sister. Thereafter, he pushed him
down from the motorcycle. Accused No.2 told him that if he divulged the incident
to anyone, he would kill him. Later he came to know about the murder of Sarath.
25. PW16, Kuruvila Joseph, deposed that the deceased Sarath was a
friend of his younger brother PW12, Anu Joseph Kuruvila. When he was returning
to his house after purchasing a book on 11.03.2010 at about 9 p.m, he heard a
commotion. He stopped the vehicle and rushed to the spot where he saw PW12
and PW17 trying to lift the deceased Sarath. He had seen four large wounds on
the back side of the deceased Sarath. The blood was oozing from the wounds.
PW12 and PW17 took the deceased to Benziger Hospital. In cross -examination,
he would say that there are several houses at Mythri junction. He does not
remember whether several people had gathered at the place of occurrence.
26. PW17, Vignesh, has also travelled along with the deceased, at the
time of the incident. He deposed that the deceased Sarath was his friend. He
testified that while he was travelling in a motorcycle on 11.03.2010 at about 9 p.m
along with PW12, Anu Joseph Kuruvila and the deceased, and when they reached
Mythri Junction, accused Nos. 1 to 5 intercepted their vehicle. Thereafter, accused
No.2 (Anandu) told PW12 that he would retaliate for the eve-teasing of his sister by
PW15.
27. PW15 further added that accused No.1 attempted to inflict stab injury
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on PW12. But, PW12 swayed away and the dagger hit on the leg of accused No.1.
He would also state that accused No.1 restrained Sarath and inflicted four stab
injuries on his back. Hearing the hue and cry the neighbours rushed to the spot.
He identified MO-3 dagger and MO-4 its cover. In cross-examination, he would say
that the blood was spilled on his body, shirt and motorcycle. There was swelling on
his body and it was not treated. After the incident, several people gathered at the
place of occurrence. He identified MO-3 dagger in the police station during the
investigation. He stated that the father of PW12 is a leader of Congress party.
Defence Version
28. The defence version is that, on 11.03.2010 at about 8 p.m., while
accused Nos.1 to 5 were returning after attending tuition and reached at Mythri
Junction, PWs.12, 17 and the deceased abused and attacked them and there was a
commotion. The accused are innocent and they were falsely implicated due to
political enmity.
The cause of death – whether homicidal
29. The learned Sessions Judge after evaluating the evidence of PW11,
Dr.N.A Balaram, who conducted the autopsy and PW12 and PW17 eye witnesses
concluded that the death of Sarath is homicidal. PW11 (Dr.N A Balaram), has
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noted, as many as, 11 injuries in the postmortem certificate. He opined that the
cause of death was the penetrating injuries sustained on the back of chest. PWs.12
and 17, the eye witnesses, categorically stated that the deceased sustained several
injuries in the incident. On a careful evaluation of evidence of PW11, PW12 and
PW17, we find no reason to disagree with the conclusion of the learned Sessions
Judge that the death in the instant case was homicidal.
30. The first submission by the learned counsels for the appellants is that
PWs.12 and 17 are interested witnesses. It is submitted that PWs.12 and 17
admitted their enmity towards the accused and hence, their evidence cannot be
relied on without corroboration. It is pointed out that, even though PWs.12 and 17
claimed to be the injured witnesses, they did not go to the hospital and treated.
Adv.Renjith B. Marar, learned counsel for the appellant in Crl.Appeal No.92/2019
placed reliance on the judgment in Nand Lal v. State of Chattisgarh2 . In Nand
Lal‘s case (supra), it was held that, in cases of interested witnesses, the Court is
required to be circumspect or separate the chaff from the grain and seek further
corroboration from reliable testimony, direct or circumstantial. Paragraphs 27 and
35 of the Nand Lal‘s case reads as follows:
“27. Undisputedly, in the present case, the injuries sustained by
Accused 11 Naresh Kumar cannot be considered to be minor or
superficial. The witnesses are also interested witnesses, inasmuch as2
2023(10) SCC 470
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they are close relatives of the deceased. That there was previous
enmity between the two families, on account of election of sarpanch,
has come on record. As observed by this Court in Ramashish Rai v.
Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 :
2005 SCC (Cri) 1611] , previous enmity is a double-edged sword. On
one hand, it can provide motive and on the other hand, the
possibility of false implication cannot be ruled out.
35. As already discussed hereinabove, the names of Nand Lal,
Bhagwat and Ramdular are not mentioned in the merg report, which
was lodged prior to the lodging of FIR, so also their names are not
found in the inquest panchnama and spot panchnama. Taking into
consideration the delay in lodging the FIR, with the circumstance of
their names not being mentioned in the contemporaneous
documents, the possibility of the said accused being falsely
implicated cannot be ruled out. In our view, the conviction of these
accused purely on the basis of oral testimony of the interested
witnesses, without sufficient corroboration, would not be
sustainable.”
31. In Aslam Alias Imran v. State of Madhya Pradesh3, the Hon’ble
Apex Court observed that, no doubt that merely a witness being an interested
witness cannot be a ground for discarding his testimony. However, the evidence of
such a witness is required to be scrutinized with greater caution and
circumspection.
32. In Sarwan Singh and Others v. State of Punjab4, the Apex Court
held that evidence of an interested witness does not suffer from any infirmity as
3
2025 KHC 6275
4
(1976)4 SCC 369
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CrlAppeal Nos.15, 92 and 95 of 2019
22
such, but the Courts require as a rule of prudence, not as a rule of law, that the
evidence of such witnesses should be scrutinized with a little care.
33. In State of U.P. v. Ballabh Das and Others5, the Hon’ble Apex
Court held that, what the law, requires is that where the witnesses are interested,
the Court should approach their evidence with care and caution in order to exclude
the possibility of false implication. The evidence of interested witnesses, is not like
that of an approver which is presumed to be tainted and requires corroboration but
the said evidence is as good as any other evidence.
34. In State of Andhra Pradesh v. S. Rayappa and others6, the
Supreme Court observed as under:
“Testimony of a witness otherwise inspiring confidence cannot be
discarded on the ground that he being a relation of the deceased is
an interested witness. A close relative who is a very natural witness
cannot be termed as an interested witness. The term interested
postulates that the person concerned must have some direct interest
in seeing the accused person being convicted somehow or the other
either because of animosity or some other reasons.”
35. In Kartik Malhar v. State of Bihar7, the Hon’ble Supreme court
observed that the term “interested” postulates that the witness must have some
direct interest in having the accused somehow or the other convicted for some
5
(1985) 3 SCC 703;1985 SCC (Cri) 452
6
(2006) 4 SCC 512
7
(1996) 1 SCC 614
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CrlAppeal Nos.15, 92 and 95 of 2019
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animus or for some other reason.
36. Now we shall proceed to evaluate the evidence of PW12 and PW17,
bearing in mind the law laid down in the aforementioned cases.
37. PW12, Anu Joseph Kuruvila, is an eyewitness to the incident. He
stated that the deceased, Sarath, was his friend. He testified that he along with
Sarath and PW17, Vignesh, were travelling in a motorcycle through Amruthakulam
road on 11.03.2010. When they reached Mythri Junction at about 9 p.m., the
accused Nos. 1 to 5 were assembled at that place in unison. On seeing them, the
accused intercepted the motorcycle. Accused No.2, Anandu, told them that he
would retaliate PW15, Kuruvila John @ Tikku, who had allegedly eve-teased his
sister. PW12 replied that they want to move away from the place.
38. In the meantime, accused No. 3-Robson, accused No. 4-Priyalal, and
accused No. 5-Binu beat the deceased Sarath and Vignesh (PW17). Accused No.2,
Anandu, beat him on his chest, uttering the words that ‘he would kill him.’ Then
Anandu uttered the words “stab” and “kill”, pointing towards him. In the
meanwhile, accused No.1 (Immanuel @ Tony), took a dagger which was hidden on
his backside of his dress and attempted to inflict a blow on him. Sarath swerved
and managed to escape the attempt to stab and as a result, the dagger fell on the
left thigh of accused No.1.
39. When Sarath tried to flee from the scene, accused No.1, Immanuel @
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CrlAppeal Nos.15, 92 and 95 of 2019
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Tony, chased him, holding the head under his armpit and inflicted stab injuries on
his back, three or four times. The deceased, Sarath, cried loudly. The blood came
oozing from the injuries. The other accused restrained PW17, Vignesh and fisted
him. Hearing the cries, the neighbours rushed to the scene. At that time, the
accused ran towards Kallumkandam side. They took Sarath to Benziger Hospital,
Kollam. In the meantime, Sarath breathed his last. The witness identified MO-3
dagger.
40. In cross examination, PW12 stated that blood of the deceased Sarath
was spilled on his body and on the motorcycle. He has not stated this fact to police
in his previous statement. The bike covered with blood was not produced before
the police. Moreover, the swelling and the marks of injury were not shown to police.
He added that he did not take the injuries seriously.
41. On hearing their cries, the neighbours gathered at the place of
occurrence and at that time, the accused escaped from the scene. He clarified that
the police never asked him about the bike or his blood stained dress. He was not
treated for the minor injuries caused to him.
42. PW12 in cross examination stated that four accused persons
restrained him and inflicted blows on him. The swelling and marks of injuries were
shown to the police during the investigation. On hearing their hue and cry, the local
people gathered at the place of occurrence. During the investigation, MO-5 shirt
2025:KER:50362
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worn by the deceased Sarath was shown to him in the police station. It contained
blood stains and a hole indicating the stab injury. The blood fell on the motorcycle.
He denied the suggestion that the accused were falsely implicated in this case.
43. PW17, Vignesh, also travelled along with the deceased in the motor
cycle at the time of the incident. He deposed that the deceased Sarath was his
friend. He testified that while he was travelling on a motorcycle along with PW12,
Anu Joseph Kuruvila and the deceased on 11.03.2010 at about 9 p.m, and when
they reached Mythri Junction, accused Nos. 1 to 5 intercepted their vehicle.
Thereafter, accused No.2, Anandu told PW12 that he would retaliate for the
eve-teasing of his sister by PW15.
44. He further testified that accused No.1 attempted to inflict stab injury
on PW12. But PW12 swayed away and the dagger hit on the leg of accused No.1.
He would also state that, accused No.1 restrained Sarath and inflicted four stab
injuries on his back. Hearing the hue and cry, the neighbours rushed to the spot.
He identified MO-3 dagger and MO-4 its cover.
45. The learned counsel for the appellants pointed out that there are
material contradictions and omissions in the testimony of PW17. Three
contradictions were put to the witness and proved through the Investigating Officer
as Exts.D1 to D3.
46. Ext.D1 contradiction is that, PW17 deposed in Court that he never
2025:KER:50362
CrlAppeal Nos.15, 92 and 95 of 2019
26
stated to the police that he had previous acquaintance with the accused. Likewise,
he has not stated to the police that there was a prior incident with respect to the
eve-teasing of Reshma, sister of accused No.2. The witness further added that he
has nothing to say if police recorded in his previous statement that he, along with
Sarath and Anu (PW12) went to the stadium to play. These contradictions were
marked as Exts.D1 to D3 respectively.
47. The learned counsel for the appellants had also pointed out certain
omissions in the evidence of PW17. PW17, in cross examination stated that he has
not shown the blood stained clothes, and the swelling on his body to the police. He
added that the police never made such a question to him. PW17 further stated that
he has not shown the motorcycle on which blood had fallen to the police. The
discrepancies and contradictions pointed out by the learned counsel for the
appellants are irrelevant, immaterial and insignificant, in our view.
48. We have carefully scrutinized and reassessed the evidence of PW12
and PW17 who are the eye witnesses in this case. Their version appears to be
natural, consistent and truthful.
49. The learned counsel further argued that the FIR in this case was
registered 23 hours after the FIS given by PW13, who was not an eyewitness and
whose statement was based entirely on hearsay information. The FIR reached the
Court with considerable delay ie., 3 p.m on the next day. The delay caused in
2025:KER:50362
CrlAppeal Nos.15, 92 and 95 of 2019
27
reaching the FIR indicates the possibility of manipulation. It is urged that, FIR is a
valuable piece of evidence and the immediate lodging of the FIR removes suspicion
with regard to false implication of the accused and their role.
50. In this case, the date of occurrence is about 9 p.m. on 11.03.2010.
The FIR was registered on the basis of the information given by PW13 at 11p.m.,
which reached the Court at 3 p.m on the next day. Practically, there is no delay in
the registration of the FIR or forwarding it to the jurisdictional court. Therefore, we
are unable to accept the aforementioned contention of the learned counsel for the
appellants.
51. The learned counsel for the appellants further submitted that there is
no evidence for proving the common object of the appellants for the alleged
commission of the crime. It is urged that apart from the interested testimony of
PWs.12 and 17, there is nothing on record to prove the common object of the
appellants. Even according to the prosecution, the accused no.2 was questioning
the teasing of his sister by PW15.
52. The next submission by the learned counsel for the appellants is that
the recovery of MO3 dagger is not believable and not in accordance with Section 27
of the Indian Evidence Act. In order to fortify this contention, the learned counsel
for the appellants has placed reliance on the judgments in Ramanand(supra),
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CrlAppeal Nos.15, 92 and 95 of 2019
28
Babu Sahebagouda Rudragoudar v. State of Karnataka8 , Varkey Joseph
v. State of Kerala9 and Sonvir v. State of (NCT Delhi)10.
53. In Babu Sahebagouda Rudragoudar‘s case (supra), the Apex
Court held that, the conviction of the accused purely on the basis of oral testimony
of the interested witnesses, without sufficient corroboration, would not be
sustainable. Further, the mere marking of the recovery mahazar is not sufficient to
sustain the conviction. If the independent witnesses to the recovery mahazar do
not testify as to what was spoken by the accused in disclosure statement, the same
will not be admissible in evidence. In Varkey Joseph‘s case (supra), the Apex
Court observed that if the independent witnesses do not support the prosecution
case with respect to the recovery of the weapon and merely put their signatures in
the mahazar, such evidence is not legally acceptable to sustain conviction. In
Sonvir‘s case (supra), the Apex Court opined that the incongruity and
contradictions in the prosecution evidence would make the recovery under Section
27 of the Indian Evidence Act unbelievable.
54. PW5, Manu, is the witness to recovery of MO3 dagger. Even though
he admits his signature in the recovery mahazar, he would say that he is not aware
of the contents of the mahazar. PW18 is the Investigating Officer who recovered
8
2024 KHC Online 6222
9
1933Supp(3)SCC 745
10
(2018)8 SCC 24
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CrlAppeal Nos.15, 92 and 95 of 2019
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MO3 dagger on the basis of the disclosure statement of accused No.1. As led by
accused No.1, he recovered MO3 dagger and its cover MO4 from the bushes of a
vacant plot near the place of occurrence. Ext.P4(a) is the confession statement of
the accused No.1. and Ext.P4 is the recovery mahazar.
55. On scanning the evidence adduced in this case in the light of the law
laid down in the above referred cases, we are of the view that the recovery of MO3
dagger was not properly proved by the prosecution. PW5, though admitted his
signature in the recovery mahazar has not spoken about the particulars of the
recovery. The recovery effected by the Investigating Officer in this case would not
be of much help in sustaining conviction against the appellants.
56. The next contention of the appellants is that the prosecution has
concealed the genesis of the incident. Even though PW18, the Investigating Officer
admits that Crime No.440/2010 was registered, in which, accused No.1 was the
victim, nothing was brought on record to explain the injury caused to accused No.1.
According to the learned counsel for the appellants, this would cut the very root of
the prosecution case and makes the prosecution story unbelievable. In order to
buttress this contention, the learned counsel relied on the decision in Lakshmi
Singh and Others v. State of Bihar11 , wherein, it was held that, where the
prosecution fails to explain the injuries sustained to the accused, two results may
11
(1976)4 SCC 394
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CrlAppeal Nos.15, 92 and 95 of 2019
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follow.
1) The evidence of the prosecution witness is untrue.
2) that the injuries probabalize the plea taken by the accused.
57. It is submitted that the non explanation with regard to the outcome of
the crime registered at the instance of accused No.1 is fatal to the prosecution
case. PW18, the Investigating Officer in his evidence, made it clear that crime
No.440/2010 registered at the instance of accused No.1 was referred by him as it
was false. Hence we are unable to accept the contention of the appellants as to the
suppression of the genesis of the incident.
58. The next argument advanced by the learned counsel for the
appellants is that the court charge is too vague and not precise as it does not
specify the overt act of each of the accused.
59. Before proceeding further, it would be apposite to quote sections 215
and 464 of the Code of Criminal Procedure.
S.215:- No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to state the
offence or those particulars, shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such error
or omission, and it has occasioned a failure of justice.
S.464- Effect of omission to frame, or absence of, or error in,
charge
(1)No finding sentence or order by a Court of competent jurisdiction
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31
shall be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the
charge including any misjoinder of charge, unless, in the opinion of
the Court of appeal, confirmation or revision, a failure of justice has
in fact been occasioned thereby.
(2)If the Court of appeal, confirmation or revision is of opinion that
a failure of justice has in fact been occasioned, it may
a) in the case of an omission to frame a charge, order that a charge
be framed and that the trial be recommenced from the point
immediately after the framing of the charge.
b) in the case of an error, omission or irregularity in the charge, direct
a new trial to be had upon a charge framed in whatever manner it
thinks fit;
c) Provided that if the Court is of opinion that the facts of the case are
such that no valid charge could be preferred against the accused in
respect of the facts proved, it shall quash the conviction.
60. On a bare reading of Sections 215 and 464 Cr.P.C., it is discernible
that an error or omission in stating the offence or particulars thereof shall not be
regarded as material, unless failure of justice has been occasioned thereby.
61. In Central Bureau of Investigation v. Narottam Dhakad12 , the
Hon’ble Apex Court held that no error in the charge shall be regarded at any stage
of the case as material unless the accused was in fact misled due to error or
omission and it has occasioned a failure of justice. The Apex court further held that,
even if the charge was not framed in the language of the Court, it shall not be
material unless it is shown that the accused was misled and it resulted in failure of
12
2023 KHC 6805
2025:KER:50362
CrlAppeal Nos.15, 92 and 95 of 2019
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justice.
62. In Abdul Sayeed v. State of M.P 13, the Apex Court opined that
unless the accused is able to establish that the defects in framing charges has
caused real prejudice to the accused: that he was not informed as to what was the
real case against him or that he could not defend himself properly, no interference
is required on mere technicalities.
63. The Apex Court in Willie (William) Slaney v. State of M.P.14
observed as under:
“20. Now there is no doubt that a charge forms the foundation of
a sessions trial and is a most important step in it. The accused must
know and understand what he is being tried for and must be told in
clear and unambiguous terms: Section 271(1). There can be no
shirking that or slurring over it, and this must appear on the face of
the record. It cannot be established by evidence taken after the trial.
But there is, in our opinion, equally no doubt that the Code expressly
deals with this and expressly provides that no error, omission or
irregularity in the charge, or even total absence of a charge, shall
vitiate a trial unless prejudice to the accused is shown. This is
repeatedly reiterated in a number of sections. The whole question
therefore is whether the “charge” must be formally reduced to writing
and expressed as a ritualistic formula in order to save the trial from
the fundamental defect of an incurable illegality or whether the
information that is the substance of the matter can be conveyed in
other ways. The question is whether we are to grasp at the substance
or play hide and seek among the shadows of procedure.
21.First of all, Sections 221 to 223 of the Code, which undoubtedly
13
(2010)10 SCC 259
14
1955 SCC OnLine SC 34
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envisage a formal written charge, set out what a charge must contain.
A perusal of them reveals the reasons why a charge is required. It
must set out the offence with which the accused is charged and if the
law which creates the offence does not give it any specific name, so
much of the definition of the offence must be stated “as to give the
accused notice of the matter with which he is charged”. The charge
must also contain such particulars of date, time, place and person “as
are reasonably sufficient to give the accused notice of the matter with
which he is charged”; and Section 223 says:
“When the nature of the case is such that the particulars
mentioned in Sections 221 and 222 do not give the accused
sufficient notice of the matter with which he is charged, the
charge shall also contain such particulars of the manner in
which the alleged offence was committed as will be
sufficient/for that purpose.”
22.It is clear to us that the object of the charge is not to introduce a
provision that goes to the root of jurisdiction as, for example, the
requirement of previous sanction under Section 197, but to enable the
accused to have a clear idea of what he is being tried for and of the
essential facts that he has to meet. But there are other ways of
conveying this information. For example, in summons cases no formal
charge is required: all that is necessary is to tell the accused the
substance of the accusation made against him (Section 242). The
whole question is whether, in warrant cases and in sessions trials, the
necessary information must be conveyed in one way and one way
only, namely in a formal charge in order that the entire trial may not
be ipso facto vitiated because of an incurable illegality, or whether that
can be done in other and less formal ways, provided always that it is
in fact conveyed in a clear and unambiguous manner and in
circumstances that the court will regard as fair and in substantial, as
opposed to purely technical, compliance with the requirements of the
Code. The law could have provided one way as easily as another, but
what it has chosen to do is set out in the following sections.”
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64. In Kamil v. State of U.P.15 , the Apex Court held in paragraph 17 as
under:
“17. The following principles relating to Sections 212, 215 and 464
of the Code, relevant to this case, become evident from the said
enunciations:
(i) The object of framing a charge is to enable an accused to have a
clear idea of what he is being tried for and of the essential facts that
he has to meet. The charge must also contain the particulars of date,
time, place and person against whom the offence was committed, as
are reasonably sufficient to give the accused notice of the matter with
which he is charged.
(ii) The accused is entitled to know with certainty and accuracy, the
exact nature of the charge against him, and unless he has such
knowledge, his defence will be prejudiced. Where an accused is
charged with having committed offence against one person but on the
evidence led, he is convicted for committing offence against another
person, without a charge being framed in respect of it, the accused
will be prejudiced, resulting in a failure of justice. But there will be no
prejudice or failure of justice where there was an error in the charge
and the accused was aware of the error. Such knowledge can be
inferred from the defence, that is, if the defence of the accused
showed that he was defending himself against the real and actual
charge and not the erroneous charge.
(iii) In judging a question of prejudice, as of guilt, the courts must act
with a broad vision and look to the substance and not to the
technicalities, and their main concern should be to see whether the
accused had a fair trial, whether he knew what he was being tried for,
whether the main facts sought to be established against him were
explained to him fairly and clearly, and whether he was given a full
and fair chance to defend himself.”
15 (2019)12 SCC 600 2025:KER:50362 CrlAppeal Nos.15, 92 and 95 of 2019 35 65. In State v. Anup Kumar Srivastava16 , the Apex Court held that
framing of charge is the first major step in a criminal trial where the court is
expected to apply its mind to the entire record and documents placed therewith
before the court.
66. The Apex Court in V. C. Shukla v. State through C. B. I17 held
that, there can be no doubt that the stage of framing of the charges is an important
stage and the Court before framing the charge has to apply its mind judicially to the
evidence or the material placed before it in order to make up its mind whether
there are sufficient grounds for proceeding against the accused.
67. The learned counsel for the appellant, Sri.Raman Pillai further
submitted that the overt acts against the accused No.2 to 5 were not specifically
stated in the charge. In the instant case, charge was written in vernacular, not in
the language of Court. The framing of charge form the foundation of a sessions
trial and is a most important step in it. It is not an empty formality. While framing
the court charge, the Sessions Court is expected to apply its mind to the entire
record and documents placed before the Court.
68. The Sessions Judge is required to scrupulously follow the provisions of
Chapter XVII (Sections 211 to 224) of the Code of Criminal Procedure or Chapter
16
(2017) 15 SCC 560
17
1980 Supp SCC 92
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CrlAppeal Nos.15, 92 and 95 of 2019
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XVIII of Bharatiya Nagarik Suraksha Sanhita (Sections 234 to 247). The very
purpose of framing of charge is to give the accused notice of the matter with which
he is charged.
69. Giving notice, affording an opportunity to both the sides and passing
of speaking orders are the three foundational aspects on which the entire structure
of the adjudication is built. If there are any flaws or lapses in any of these basic
things, it would, indeed, cause miscarriage of justice or failure of justice. On going
through the charge written in vernacular language, it could be seen that, there are
omissions and errors in framing the court charge. It appears that the charge is not
framed by separate heads for each distinct and separate offence. It appears that
the charge was framed without proper application of mind and we find that quite
disturbing. However, there is nothing on record to show that, due to an error or
omission in framing the charge, failure of justice was occasioned to the accused.
70. In the instant case, the appellants have no case that opportunity was
denied to them for defending the case effectively. The mere omission or error that
by itself is not a ground to set aside the sentence or order passed by a Court of
competent jurisdiction. Therefore, we are unable to accept the said argument
advanced by the learned counsel for the appellants.
71. The next contention advanced by the learned counsel for the
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appellants in Crl.Appeal 15/2019, Sri.Raman Pillai is that, the non-citing and
non-examination of material witnesses are fatal to the prosecution story. The
counsel pointed out that, even though there are several persons gathered at the
place of occurrence, none of them were cited and examined to prove the fact in
issue. The appellants were falsely implicated in this case.
72. In Vadivelu Thevar v. State of Madras18, the Apex Court observed
that it is the quality of the evidence and not the quantity which is relevant for the
adjudication of the fact in issue. The evidence of the eye witnesses inspires the
confidence of the Court, the non-examination of one or more other witnesses has
no relevance at all.
73. The learned counsel for the appellants in Crl.Appeal No.95/2019,
Adv.S.Rajeev submitted that accused No.2 to 5 were roped in this case only with
the aid of S.149 of the Indian Penal Code. The prosecution has no case that any of
them were carrying weapons and no overt acts are alleged against the accused
Nos.2 to 5. In the absence of such evidence, the conviction against accused Nos.2
to 5 cannot be sustained.
74. Before further discussion, it may be useful to extract Sections 141 and
149 of the Indian Penal Code.
“141. Unlawful assembly.–
18
AIR 1957 SC 614
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An assembly of five or more persons is designated an “unlawful
assembly”, if the common object of the persons composing that
assembly is–
First.–To overawe by criminal force, or show of criminal force, 11[the
Central or any State Government or Parliament or the Legislature of
any State], or any public servant in the exercise of the lawful power
of such public servant; or
Second.–To resist the execution of any law, or of any legal process;
or
Third.–To commit any mischief or criminal trespass, or other offence;
or
Fourth.–By means of criminal force, or show of criminal force, to any
person, to take or obtain possession of any property, or to deprive
any person of the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession or enjoyment,
or to enforce any right or supposed right; or
Fifth.–By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do.
Explanation.–An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly.
149 – Every member of unlawful assembly guilty of offence
committed in prosecution of common object.–
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 the committing of that offence, is a member of the same
assembly, is guilty of that offence.”
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CrlAppeal Nos.15, 92 and 95 of 2019
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75. In Yunis @ Kariya v. State of Madhya Pradesh19, the Supreme
Court reiterated that, even if no overt act is imputed to a particular person, when
the charge is under S.149 IPC, the presence of the accused as part of unlawful
assembly is sufficient for conviction.
76. In Krishnappa and Others. v. State of Karnataka by
Babaleshwara Police Station20, the Supreme Court reiterated the principle of
vicarious liability. Relevant paragraphs are extracted hereunder:
“20. It is now well settled law that the provisions of S.149 IPC
will be attracted whenever any offence committed by any member of
an unlawful assembly in prosecution of the common object of that
assembly, or when the members of that assembly knew that offence
is likely to be committed in prosecution of that object, so that every
person, who, at the time of committing of that offence is a member,
will be also vicariously held liable and guilty of that offence. S.149
IPC creates a constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to the
common object by any other member of that assembly. This principle
ropes in every member of the assembly to be guilty of an offence
where that offence is committed by any member of that assembly in
prosecution of common object of that assembly, or such members or
assembly knew that offence is likely to be committed in prosecution
of that object. [Lalji v. State of U.P., 1989 (1)SCC 437; Allauddin Mian
v. State of Bihar, 1989 (3)SCC5; Ranbir Yadav v. State of Bihar, 1995
(4) SCC392]. The factum of causing injury or not causing injury
would not be relevant, where accused is sought to be roped in with
the aid of S.149 IPC. The relevant question to be examined by the
court is whether the accused was a member of an unlawful assembly
and not whether he actually took active part in the crime or not.
19
2003(1) SCC 425
20
AIR 2012 SC 2946
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[State v. Krishna Chand, 2004 (7)SCC629; Deo Narain v. State of
Uttar Pradesh, 2010 (12)SCC298].
21. We have carefully perused the relevant records and
statements of the eye witnesses in the case. In our opinion, the
prosecution has clearly established with ample evidence that accused
– A13 and A14 had murdered the deceased. We are in agreement
with the view taken by the Trial Court and High Court. Therefore, the
High Court is right in dismissing the appeal against the order of
conviction passed by the learned Sessions Judge.
22. We are also of the opinion that accused – A1, A15, A16 and
A21 were members of the same assembly which has caused the
murder of the deceased, in terms of S.149 IPC, as they had dragged
the deceased after first assault and contributed in preventing the
deceased from escaping the assault of A13 and A14. Therefore,
accused A1, A15, A16, A21 are guilty of murder along with A13 and
A14 under S.302 read with S.149 IPC.
23. We are afraid that the decisions relied on by Shri. Doabia,
learned Senior Counsel would not come to assist the accused, as in
the present case, there is clear evidence of overt act on the part of
the accused – A1, A15, A16 and A21 who dragged the deceased and
prevented him from escaping the fatal assault to his body.”
77. In Nitya Nand v. State of UP21, the Apex Court explained the
principle of constructive or vicarious liability. S.149 creates a constructive or
vicarious liability of the members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other member of that assembly.
By application of this principle, every member of an unlawful assembly is roped in
to be held guilty of the offence committed by any member of that assembly in
21
2024 KHC 6476
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CrlAppeal Nos.15, 92 and 95 of 2019
41
prosecution of the common object of that assembly. The factum of causing injury or
not causing injury would not be relevant when an accused is roped in with the aid
of S.149 IPC. The question which is relevant and which is required to be answered
by the Court is whether the accused was a member of an unlawful assembly or not
whether he actually took part in the crime or not. The Apex Court further observed
that for mulcting liability on the members of an unlawful assembly under S.149 , it
is not necessary that every member of the unlawful assembly should commit the
offence in prosecution of the common object of the assembly. Mere knowledge of
the likelihood of the commission of such an offence by the members of the
assembly is sufficient.
78. In Suresh Dattu Bhojane v. State of Maharashtra22, the Apex
Court held that the presence of the accused as part of unlawful assembly with
common object is sufficient for conviction under Section 149, even without active
participation in crime or specific role assigned to them. The relevant paragraphs
reads thus:
“27. The aforesaid accused persons may not be armed and may
not have been assigned any specific role but nonetheless their
presence at the scene of the crime along with other accused persons
is duly established. They were held to be part of the unlawful
assembly with common object. The evidence of Nandkumar Mungase22
2024 KHC 8258
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(PW-5) proves the presence of Suresh (A – 5) and Anna (A – 6) He
has also stated that they were armed with swords at the material
time. They were likely to strike him with sword but was timely saved
by Savita (PW-4). The testimony of Savita (PW-4) also speaks about
the armed presence of both the above accused and that they have
gheraoed the deceased Mohan Mungase. The evidence of both the
above eye-witnesses clearly proves that both of them were present at
the scene of the crime and were having the common object to kill
Mohan Mungase. All of them had joined together and have come to
the house of Mama Bhojane after a quarrel was picked up with the
deceased Mohan Mungase earlier to the incident at the shop of Shiva
Chougale situate in the village.
28. The accused A – 5 and A – 6 are undoubtedly part of unlawful
assembly and were having the common object viz the killing of
deceased Mohan Mungase and his brother Nandkumar Mungase.
They had a clear motive for the above purpose as the country liquor
shop which was settled in favour of A – 1 was subsequently entrusted
to the deceased and his brother by the owner Mama Bhojane. The
accused A – 5 and A – 6 were present even at the time when the
deceased was threatened with dire consequences while he was sitting
on the platform of a shop just before the fatal incident. They both
were present in the house of Mama Bhojane when the crime took
place. The assembly of all the accused persons in the house of Mama
Bhojane with the deadly weapons was apparently for the purposes of
teaching a lesson to the deceased and his brother to settle the score
arising from the entrustment of the country liquor shop. Therefore,
both A – 5 and A – 6 were certainly part of the unlawful assembly
having the common object and as such are guilty of the offence as
envisaged under S.149 of the IPC.
29. The accused A – 5 and A – 6 have been charged under S.149 IPC.
Therefore, their presence with the other co- accused amounted to an
unlawful assembly which is sufficient for conviction, even if they may
have not actively participated in the commission of the crime. It goes
without saying that when the charge is under S.149, the presence of
the accused as part of the unlawful assembly itself is sufficient for
conviction (Yunis alias Kariya vs. State of Madhya Pradesh, AIR 2003
SC 539).”
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79. In the case on hand, learned Sessions Judge after a detailed
evaluation of evidence has arrived at a conclusion that accused nos.1 to 5 had
formed themselves into an unlawful assembly, shared the common object of that
assembly and the offences were committed, in furtherance of the object of the
unlawful assembly.
80. A reassessment and a close scrutiny of the evidence of PW12 and
PW17 would clearly establish that accused nos.1 to 5 were assembled together in
unison at the place of occurrence and waited for the arrival of the deceased, PW12
and PW17. Accused no.1, Tony @ Immanuel inflicted repeated stab injuries on the
deceased after locking his head in the armpit. At that time, accused no.2 uttered
the words ‘stab and kill’. Accused nos.3 to 5 inflicted blows on various parts of the
body of the deceased, PW12 and PW17. The available evidence would convincingly
establish the participative presence of all the accused in the incident. It is pertinent
to note that all the accused waited till they ensured the death of the deceased
Sarath. PWs.12 and 17 vividly spoke about the role of each of the appellants in the
incident.
81. On a careful evaluation of evidence, we do not find any reasons to
disagree with the conclusion of the learned Sessions Judge on this point also.
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Conclusion
We have carefully and meticulously evaluated the evidence on record, both
oral and documentary and considered the rival submissions. On such evaluation,
reassessment, weighing and testing of the evidence on record, we do not find any
illegality or infirmity in the findings of the learned Sessions Judge as to the guilt,
and conviction. The prosecution has succeeded in proving the charge against the
appellants beyond reasonable doubt. We are in agreement with the conclusions
arrived at by the learned Sessions Judge. The appeals are devoid of any merit and
only to be dismissed, in our considered view.
In the result,
1) Crl.Appeal Nos.15/2019, 92/2019 and 95/2019 are dismissed
2) The finding of guilt, conviction entered and the sentence passed by the
learned Sessions Judge are confirmed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
msp/Sbna
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APPENDIX OF CRL.A 92/2019
PETITIONER ANNEXURES
Annexure U A TRUE COPY OF THE MEDICAL CERTIFICATE OF
THE PETITIONER’S BROTHER-IN-LAW, MR. SHAMEER
DATED 04.01.2024
ANNEXURE D DEPOSITION OF PW3.
ANNEXURE E DEPOSITION OF PW4
ANNEXURE A COPY OF THE JUDGMENT IN S.C. NO. 955 OF 2014
DATED 27.11.2018 ON THE FILES OF THE COURT
OF THE IIND ADDITIONAL SESSIONS JUDGE AT
KOLLAM DISTRICT.
ANNEXURE B DEPOSITION OF PW1.
ANNEXURE C DEPOSITION OF PW2.
ANNEXURE F DEPOSITION OF PW5
ANNEXURE G DEPOSITION OF PW6
ANNEXURE H DEPOSITION OF PW7.
ANNEXURE 1 DEPOSITION OF PW8
ANNEXURE R DEPOSITION OF PW17.
ANNEXURE K DEPOSITION OF PW10.
ANNEXURE L DEPOSITION OF PW11.
ANNEXURE M DEPOSITION OF PW12.
ANNEXURE N DEPOSITION OF PW13.
ANNEXURE O DEPOSITION OF PW14.
ANNEXURE P DEPOSITION OF PW15.
ANNEXURE Q DEPOSITION OF PW16.
ANNEXURE S DEPOSITION OF PW18.
ANNEXURE T COPY OF THE 313 STATEMENT WITH WRITTEN
STATEMENT.
ANNEXURE J DEPOSITION OF PW9.