LexSHAJI AND ORS. versus STATE OF KERALA
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A B [2011) 6 S.C.R. 210 SHAJI AND ORS. v. STATE OF KERALA (Criminal Appeal No. 1618 of 2005) MAY 3, 2011 [P. SATHASIVAM AND H.L. GOKHALE, JJ.] Penal Code, 1860: c s. 302 rlw s. 149 - Murder - Common object - Unlawful assembly armed with deadly weapons - Six accused - A-1 inflicted three cut injuries on head of victim-deceased with a ~ chopper - A-5 and A-6 acquitted - Other four accused (A-1 to A-4) convicted - They filed appeals before Supreme Court 0 - Appeal as regards A-1 dismissed as not pressed - Whether prosecution established the conviction of A-2 to A-4 under s.302 rlw s.149 - Held, No - All the eye-witnesses identified and attributed only A-1 for commission of offence and made no reference to the role of the other accused - Even the E Investigation Officer did not mention anything about the role of the other accused except A-1 - Inasmuch as s. 149 creates a specific offence and deals with punishment of that offence, in order to convict a person or persons with the aid of s. 149, a clear finding regarding common object of the assembly must be available and the evidence discussed must show not F only the nature of the common object but also that the object was unlawful - In the case on hand, these ingredients were not fulfilled or established by the prosecution insofar as the accused other than A-1 - Mere fact that they were armed not sufficient to prove common object - Even the Doctor opined G that the injury sustained on the head of victim-deceased was sufficient to cause death in the ordinary course of nature - The Head injury was caused by A-1 which is also clear from the evidence of the PWs - In view of the same, the trial Court H 210 ,. SHAJI AND ORS. v. STATE OF KERALA 211 and the High Court erred in convicting A-2 to A-4 under s.302 . A with the aid of s. 149 - Their conviction and sentence set aside. s. 149 - Murder - Unlawful assembly - S/x accused ..:. Two acquitted - Conviction of the other four accused with aid of s. 149 - Scope - Whether in order to bring home a charge under s. 149 it is nec~ssary that five or more persons must 8 necessarily be brought before the court and convicted - Held, No - Constitution Bench decision in· Mohan Singh's case followed - On facts, prosecution well within its jurisdiction to establish the charge under s.149 even after acquittal of two members of the unlawful assembly. C s. 149 - Applicability of - Held: In order to attract s. 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely o to be committed in prosecution of the common object. According to the prosecution, the accused persons formed themselves into an unlawful assembly and came in a van armed with deadly weapons with the common object of doing away with PW-1 's cousin brother; that all E the accused persons attacked him and finally, A-1 inflicted three cut injuries on his head with a chopper; that at the time of occurrence, PW-1 and PW-2 were also present there and that PW-1 along with PW-5, who came there, took the victim to the nearest hospital where he was declared brought dead. F The trial court held A-1 to A-4 guilty of the offences punishable under Sections 143, 147, 148, 342, 449 and 302 read with Section 149 of IPC and sentenced them to G undergo rigorous imprisonment for six months under Section 143, for one year under Section 148, for another term of six months under Section 342, again for two years under Section 449 and to undergo life imprisonment under Section 302 read with Section 149 H 212 SUPREME COURT REPORTS [2011) 6 S.C.R. A IPC and acquitted Accused Nos. 5 & 6. No separate sentence was awarded under Section 147 IPC. Challenging the judgment of the trial court, accused Nos. 1-4 filed criminal appeal before the High Court. The High Court dismissed the appeal and confirmed their 8 conviction and sentence. c Aggrieved, A-1 to A-4 (the appellants) preferred the instant appeal. However, in view of the order of the State Government for pre-mature release of A-1/appellant No.1, the appeal as regards A-1 was not pressed. The conviction of A-2 to A-4/ appellant nos. 2 to 4 was challenged on the ground that the trial Court and the High Court committed error in convicting them under Section 302 by applying the provision of Section 149 IPC o particularly, when there was no material
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