minal Appeal No 237 of 1993
From the Judgment and Order dated 4991 of the Kerala High Court in Crl
A No 537 of 1988
MM Kashyap Sudhir Gopi AG Prasad and Roy Abraham for the Appellants
MT George for the Respondent
ANAND J On 931992 when this special leave petition directed against the judgment and order dated 4th September 1991 of the High Court of Kerala in Criminal Appeal No 537 of 1988 came up for preliminary hearing the following order was made Issue notice limited to the question as to the nature of offence and the quantum of sentence
89 No orders on bail Heard learned counsel for the parties
Leave is granted confined to the limited question on which notice was issued as referred to above
For an occurrence which took place on 24th December 1986 in which one Suku succumbed to the injuries as a result of the assault during the occurrence six accused persons were arrayed by the investigating agency for offences punishable under Sections 302 324 323 341 148 read with Section 149 IPC
They were put on trial and the prosecution sought to establish its case by examining as many as six eye witnesses besides other evidence documentary and oral
At the trial however four eye witnesses PW3 Devassykutty PWs 6 and 7 salesman and his assistant in the arrack shop and PW8 Unni  Velayudhan turned hostile and did not support the prosecution case
The prosecution case was sought to be proved by the ocular testimony of PW4 Biju and PW5 Anil both aged about 13 years at the time of occurrence and the other evidence
Both the eye witnesses supported their statements recorded under Section 161 Cr
PC during their testimony in court
The trial court on the basis of prosecution evidence found accused No 1 Subran guilty of an offence punishable under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life
Accused Nos 2 to 6 namely Rajan Preman Viswan Sura and Shajan were found guilty of an offence under Section 326149 IPC and each one of them was sentenced to undergo rigorous imprisonment for three years
Besides accused 1 to 4 were convicted for an offence under Section 148 and sentenced to suffer rigorous imprisonment for one year
All the accused were also convicted and sentenced to suffer rigorous imprisonment for six months each under Section 147 IPC
All the accused were also convicted for offences under Sections 143 341 323 324 read with Section 149 IPC but no separate sentences were awarded on any of those counts
On an appeal before the High Court the conviction and sentenced awarded to accused 1 to 3 and 5 were confirmed while accused 4 and 6 were acquitted and the conviction and sentence recorded against them by the learned Sessions Judge was set aside
In view of the limited notice issued by this Court we are relieved of the necessity to reappreciate the prosecution evidence in extenso and shall therefore confine ourselves to the determination of the nature of the offence and the award of appropriate sentence to the four appellants accepting as established the prosecution case against the four appellants beyond a reasonable doubt
90 According to the prosecution case all the six accused persons were armed with weapons like chopper iron rod knife cycle chain and torches
It is the prosecution case that the accused had held PW2 George and while the first accused kicked him the third accused inflicted injuries on him with a cycle chain
So far as Suku deceased is concerned according to the prosecution all the accused except the first accused caused him injuries with a torch a cycle chain and a knife
The first accused is alleged to have caught hold of Suku by the collar and inflicted injuries on his hands arms and legs with a chopper
The assault took place in front of an arrack shop
According to the prosecution case there was enmity between the two groups on account of illicit distillation and suspicion of information being passed on to the Excise officials
However no evidence was led in support of this allegation by the prosecution and no motive for commission of the crime was established at the trial
The postmortem on the deceased was conducted by Dr Sivasankara Pillai PW12
He had found as many as 38 injuries on the deceased
Most of the injuries found by him however were abrasions or contusions on different parts of the body though the deceased had also suffered stab wounds on the right upper arm and left forearm and sharp weapon injuries on his hands and legs
The bones of the legs and arm had been fractured
According to the medical witness death of Suku deceased was caused due to multiple injuries
According to the medical evidence there was no stab or incised wound inflicted on any of the vital parts of the body ie neck chest or abdomen
The Doctor has opined that the deceased had died due to multiple injuries and that the injuries could have been caused by beating him with torches knife iron rod cycle chain and the chopper
According to him the cumulative effect of all the injuries taken together had resulted in the death of the deceased
The doctor further stated that as a result of the chemical analysis of the viscera blood and urine there was indication that the deceased had consumed alcohol before he had been assaulted though he was unable to give the quality or quantity of liquor consumed by the deceased
From an analysis of the record of injuries as detailed in the post mortem report it transpires that there were 18 contusions of different dimensions but minor in their gravity on the body of the deceased
Eight of the injuries recorded out of the 38 in the post mortem report
 were abrasions on different parts of the body
According to the medical witness nine out 91 of those injuries could have been caused by a fall or the deceased coming into contact with any rough surface or area
Out of the remaining injuries seven were chop wounds while two were stab wounds besides three were incised injuries
it was the cumulative effect of the injuries which resulted in the death of the deceased and according to the doctor the injuries when taken together were sufficient to cause death in the ordinary course of nature
None of the injuries by itself was found to be sufficient in the ordinary course of nature to cause death of the deceased
According to the medical opinion about the cause of death deceased died due to multiple injuries
From the above analysis of injuries it cannot be said that any one of the four appellants who alone stand convicted by the High Court had inflicted injuries intending to cause death or such bodily injury as is sufficient in the ordinary course of nature to cause death
As already noticed six accused persons had been charged by the investigating agency for offences punishable under Sections 143 147 148 341 323 324 326 and 302 read with Section 149 IPC and put on trial
The trial court convicted accused 2 to 6 under Section 326 IPC with the aid of Section 149 IPC
It convicted accused No 1 for an offence under Section 302 IPC
While convicting accused 2 to 6 for the offence under Section 326149 IPC the trial court came to the conclusion that the accused did not share the common object to murder Suku and that the common object was only to cause grievous hurt  to the deceased
Being of the opinion that accused No 1 had caused injuries with a chopper and those injuries could have resulted in the death of the deceased he was convicted for an offence under Section 302 IPC
The High Court acquitted two of the accused and convicted the remaining four only
The High Court found that clear evidence of the eye witnesses was only against accused Nos 2 3 and 5 besides appellant No 1
The participation of the 6th accused and the role assigned to him by the prosecution was doubted by the learned Judges of the High Court and he was given the benefit of doubt and acquitted
Similarly the High Court disbelieved the role assigned to accused No 4 and doubted his participation in the commission of the crime
He was also  given the benefit of doubt and acquitted
While setting aside the conviction and sentence of the said two accused the High Court did not hold that beside the four accused convicted by it there were some other known or unknown accused who had also been a party to the commission of the crime
It is in this above background that we have to consider the nature 92 of the offence committed by the four appellants
Admittedly none of the accused persons individually had been charged for the substantive offence of murder under Section 302 IPC
In the trial court all the six accused were charge sheeted for an offence under Section 302 read with Section 149 IPC
Other charges were also framed against the accused but only with the aid of Section 149 IPC
After the acquittal of the two accused could the High Court convict appellant No 1 for the substantive offence under Section 302 IPC with which he had not been charged and the appellants 2 to 4 for an offence under Section 326149 IPC  Section 141 IPC defines an unlawful assembly to be an assembly of five or more persons where the common object of the persons comprising that assembly is to commit any of the acts enumerated in the five clauses of that Section
Section 149 IPC reads as under Sec 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
 A combined reading of Section 141 and Section 149 IPC supra show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot therefore form the basis for conviction for an offence with the aid of Section 149 IPC
The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly
Thus only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC
The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC
Where the existence of such an unlawful assembly is not 93 proved the conviction with the aid of Section 149 IPC cannot be recorded or sustained
The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC
Consequently the conviction of appellants 2 to 4 for an offence under Section 326149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also
Since appellant No 1 Subran had not been charged for the substantive offence of murder under Section 302 IPC even the trial court which tried the six accused persons was not justified in recording a conviction against him for the substantive offence of murder punishable under Section 302 IPC after framing a charge against him for the offence under Section 302 read with Section 149 IPC only
A person charged for an offence under Section 302 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law
Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC
Appellant No 1 Subran was never called upon to meet a charge under Section 302 IPC simplicitor and therefore in defending himself he can not be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses
Therefore the conviction of the first appellant for an offence under Section 302 was not permissible
That apart according to the medical evidence none of the injuries allegedly caused by this appellant was either individually or taken collectively with the other injuries caused by him sufficient in the ordinary course of nature to cause death of Suku
Medical evidence is clear on this aspect of the case and it is not possible to say that the injuries inflicted by the first appellant with the chopper were inflicted with the intention to cause the death of Suku
The High Court failed to draw the distinction between an offence under clause b and c of Section 299 IPC and the one falling under clause 3 of  Section 300 IPC
The intention to cause murder of Suku deceased could not be attributed to him and the medical evidence also shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause death of the deceased
The conviction of appellant No 1 Subran for the substantive offence under Section 302 IPC is therefore 94 unwarranted and cannot be sustained
That Suku deceased died as a result of injuries inflicted on him by all the four appellants is not a matter which is in doubt
From the ocular evidence read with the medical evidence it stands established that the injuries on the deceased had been caused by all the four appellants and that the death of Suku had occurred due to receipt of multiple injuries
What offence can then be said to have been committed by the four appellants  According to the medical evidence the injuries caused were cumulatively sufficient to cause death and the death had occurred due to multiple injuries which were found sufficient in the ordinary course of nature to cause death
According to the ocular testimony of witnesses namely Biju PW4 and Anil PW5 who have been believed by both the courts below and with which finding we have no reason to differ all the four appellants had caused those injuries
It is therefore necessary in a case like this to determine as to which of the accused is guilty of a particular offence
On a consideration of the circumstances of the case the type of weapons with which they were armed and nature and seat of the injuries it is not possible to hold that all the four appellants had shared the common intention of causing such bodily injuries on the deceased as were likely to cause the death of Suku or were sufficient in the ordinary course of nature to cause his death
The appellants would therefore be liable for the offence com mitted individually by each one of them
As already noticed though it may not be possible to attribute to appellant No 1 Subran the necessary intention to cause death of Suku so as to hold him guilty of an offence of murder under Section 302 IPC since the injuries inflicted by him were not found to be sufficient in the ordinary course of nature to cause death of Suku but looking to the weapon with which he was armed and the nature number and seat of injuries inflicted by him though not on any vital part he can certainly be attributed with the knowledge that with those injuries it was likely that death of Suku may be caused and therefore he can be cloathed with the liability of causing culpable homicide not amounting to murder
The case of the first appellant therefore falls within Section 299 IPC punishable under Section 304 Part 1 IPC
We accordingly convict him for the said offence and sentence him to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs 2000 two thousand and in default of payment of fine suffer further rigorous imprisonment for one year
Fine if realised shall be paid 95 to the heirs of the deceased
Coming now to the case of the other three appellants
Since their conviction for an offence under Section 326 with the aid of Section 149 is not sustainable in law we set aside their conviction under Section 326149 IPC
They would be responsible for their individual acts
The injuries caused by Rajan and Preman appellants 2 and 3 were with a torch iron rod and a cycle chain
None of the injuries caused by them according to the postmortem report were on any vital part of the body though some of the injuries caused by blunt weapons were grievous in nature
We therefore convict each of the two appellants Rajan and Preman for an offence under Section 325 IPC and sentence them to suffer rigorous imprisonment for two years each
So far as the fourth appellant Sura Surendran is concerned he caused grievous injuries to the deceased with a knife
His offence would therefore fall under Section 326 IPC and convicting him for the said offence we sentence trim to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs 500 five hundred
In default of payment of fine he shall further suffer rigorous imprisonment for a period of three months
Fine if realised shall be paid to the heirs of the deceased
The conviction of all the appellants for the offence under Section 324 as recorded by the learned Judges of the High Court as also for the other offences are maintained but without the aid of Section 149 IPC
In view of the sentences recorded for offence under Section 304 Part I against the first appellant Subran Section 325 IPC against appellants 2 and 3 Rajan and Preman and Section 326 IPC against Sura Ca Surendran appellant 4 no separate sentence are recorded for the other offences
The appeal is accordingly partially allowed and disposed of in the above terms
NVK Appeal allowed partially


Summary:
The appellant A 1 his wife A 2 and his brother s wife A 3 were prosecuted under Sections 30234 and 20134 of the Indian Penal Code
Ile entire case was based on the circumstantial evidence  a the deceased had illicit relations with A 2 and A 3 b the deceased was last seen on the night when he went to sleep in his house and thereafter his dead body was found buried in the house of A 1 3 during interrogation A 1 made a disclosure statement and consequently lead the police party to his sitting room where he pointed out a spot covered by a cot and thereafter he dug the floor and the dead body of the deceased was recovered from a five feet deep pit and 4 recovery of doe woodcutter from his possession bearing the same human blood group as that of the deceased
Relying upon these circumstances the trial court convicted A 1 and A 2 on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count but acquitted A 3 Me High Court dismissed the appeal of A 1
However it acquitted A 2 on the ground that there was no evidence to connect her with the commission of the murder but maintained her conviction and sentence under sections 20134 on the ground that she being the inmate of the house was in the know of the fact that the dead body was burried in the house with a view to causing the disappearance of evidence and she must have been necessarily involved in the process of digging a grave of five feet deep the filling of the grave and erasing the traces etc
Both the accused filed appeals in this Courts
Dismissing the appeal of A 1 and allowing the appeal of A 2 this Court 66 HELD 1
The chain of circumstances relied upon by the prosecution and accepted by the Courts below leaves no manner of doubt that A 1 committed the murder
Accordingly his conviction and sentence is upheld
68B 2
There is not an iota of evidence on the record not even a whisper to the effect that it was A 2 who helped in concealing or causing the evidence of the commission of the offence to disappear
Simply because she is the wife of A 1 and as such is supposed to be living in the same house It cannot be assumed that she was guilty of the offence under section 20134
A 1 may or may not have taken help of his wife in concealing the dead body
Her being wife of A 1 by itself is not sufficient to prove the charge under section 20134
She is accordingly acquitted of that charge
68H 69A B