KOTIA PRAKASHAN AND ORS. versus STATE OF KERALA

Citation: [1997] SUPP. 6 S.C.R. 408 · Decided: 11-12-1997 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Disposed off
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Judgment (excerpt)

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 
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 
assembly, cannot be drawn. [414-B-D] 
B 
c 
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 
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. 
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. 
The Judgment of the Court was delivered by 
E 
F 
G 
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 Cou
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