LexKATTUKULANGARA MADHAVAN (DEAD) THR. LRS. versus MAJEED & ORS.
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[2017] 4 S.C.R. 658 A KATTUKULANGARA MADHAVAN (DEAD) THR. LRS. B v. MAJEED & ORS. (Criminal Appeal No.400 of2006 etc.) MARCH 30, 2017 [S. A. BOBDE AND L. NAGESWARA RAO, JJ.) Penal Code. 1860: s.302 rlw s.149 - Murder - Unlawful C assembly - 21 accused - Death caused by stabbing on account of political rivalry - Conviction by trial court set aside by High C.ourt - Appeal by complainant against acquittal - Held: PW3 who was an independent witness and was believed by both the lower courts had given a vivid description of incident - PW4 was an eye witness and was believed by trial court - High Court was not coaect in D holding that the evidence of PW4 could be used only for corroboration of PW3 s evidence - PW4 categoricalZv mentioned about involvement of A3, Al4, AJ5 and A18 and, therefore, the finding of the High Court that they were entitled for acquittal on the ground that PW3 did not speak about their presence is set aside • E - The evidence on record showed that the deceased and accused belong to two political parties opposed to each other - The.~e were three other incidents of clashes between the rival groups - On the fateful day, the accused along with others assembled and were searching for rival party workers travelling in the buses that were passing through the junction - The common object of the members F of the unlawful assembly was to attack any rival party supporter -who was passing through the junction - The deceased was iri the bus and he was killed in the attack - Finding of High Co1lrt that merely because the accused did not plan to murder the deceased, there was no common object is not sustainable - As regc.rds the G conviction u/ss.3021149, considering that the incident occurred in the year 1993, and that accused attacked the deceased with sticks causing simple injuries on non-vital parts, their conviction ulss.3261 149 meet the ends of justice -A3, A4, A14, Al 5 and AJ8 sentenced to 7 years imprisonment ulss.3261149 -Acquittal of A5 to All, A13, AJ6 ond A17 upheld. H 658 f KAT~UKULANGARA MADHAVAN (DEAD) THR. LRS. v. 659 MAJEED & ORS. s.149 - Common object - Presence of an accused as part of A an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly - When the prosecution establishes such presence, then it is the conduct of the accused that determines whether he continued to participate in the unlawful assembly with the intention to fulfill the B object of the assembly, or not - Prosecution is required to determine the point of time at which accused discovered that the assembly intended to kill the victim; having discovered that, if he made any attempt to stop the assembly from pursuing the object; if he did, and failed, did he dissociate himself from the assembZv by getting away - The answer to these questions would determine whether an C accused shared the common object in the assembly - In the in!':tant case, there was no evidence that having participated in the unlawful assembly which resulted in the death oft.he victim, A4 made any attempt to either stop the incident from taking place, or having found out that he could not prevent it, dissociated himself D from the assembly - Therefore, he was liable uls. 3261149. (Per S. A. Bobde, J.) Disposing of the appeals, the Court HELD: Per L. Nageswara Rao, J. 1. The High Court committed a serious error in not taking E into consideration the evidence of PW4. After recording a finding that the evidence of PW4 cannot be rejected only on the ground that he was not questioned by the police, the High Court proceeded to hold that the evidence of PW4 can be used only for F corroboration of PW3's evidence. The said finding was unreasonable and perverse. Unlike PW5 and PW6 who were cited as witnesses in the second list' of witnesses given by· the complainant five months after filing of the complaint, PW4 was named as a witness in the complaint. Further, his statement was recorded by the ·Magistrate under Section 20.2 Cr. P.C. The Trial G Court was right in relying upon testimony of PW4 and the High Court was not correct in holding that it can be used only for corroboration of PW3's evidence. The finding of the High Court that A3, A14, A15 and A18 were entitled for acquittal on the basis that PW3 did not speak about their presence is set aside as PW4 H 660 SUPREME COURT REPORTS [2017] 4 S.C.R. A had categoric
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