Ali Fawas v. State of Kerala

Crl.A.No.313/2017 has been filed by accused Nos.1, 3, 6 and 7 in S.C.No.680/2014 on the files of the Additional Sessions Court-II, Kozhikode, challenging judgment dated 28.03.2017 in the above case. Similarly, Crl.A.No.317/2017 has been filed by the 5^th accused and Crl.A.No.397/2017 has been filed by accused Nos.2 and 4, challenging the above judgment.

2. Heard the learned counsel for the appellants/accused Nos.1 to 7 and the learned Public Prosecutor in detail. Perused the judgment under challenge and the available records.

3. Here, the prosecution allegation is that the accused persons in this crime formed into unlawful assembly with deadly weapons, with knowledge that they were all members of the said assembly, with intention to do away with PW6, PW7 and PW8. In pursuance of the said common object, they assaulted them and caused multiple serious injuries to them, though they survived. This is the base on which the prosecution alleges commission of offences punishable under Sections 143 (now BNS 189), 147 (now BNS 191), 148 (now BNS 191), 447 (now BNS 329), 323 (now BNS 115(2)), 324 (now BNS 118(1)) and 307 (now BNS 109) r/w. 149 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by accused Nos. 1 to 7/the appellants.

4. The learned Additional Sessions Judge framed charge for the said offences and proceeded with trial. During trial, PW1 to PW12 were examined, Exts.P1 to P10 and MO1 and MO2 were marked on the side of the prosecution. No evidence was let in on the side of the defence.

5. On appreciation of the evidence, the learned Additional Sessions Judge found that the appellants/accused Nos.1 to 7 had committed the offences punishable under Sections 143 (now BNS 189), 144 (now BNS 189), 147 (now BNS 191), 148 (now BNS 191), 447 (now BNS 329), 323 (now BNS 115(2)), 324 (now BNS 118(1)) and 307 (now BNS 109) r/w. 149 of IPC. Accordingly, they were convicted for the said offences and sentenced as under:

“In the result of the accused are sentenced to undergo rigorous imprisonment for 2 months each and to pay a fine of Rs.2000/- each in default of payment of fine they shall undergo simple imprisonment for one month each for the offence under section 143 r/w.149 IPC.

The accused are further sentenced to undergo rigorous imprisonment for 6 months each and to pay a fine of Rs.3000/- each in default of payment of fine they shall undergo simple imprisonment for 2 months each for the offence under section 144 r/w. 149 IPC.

Further the accused are sentenced to undergo rigorous imprisonment for 6 months each and to pay a fine of Rs.3000/- each in default of payment of fine they shall undergo simple imprisonment for 2 months each for the offience under section 147 r/w.149 IPC.

Further the accused are sentenced to undergo rigorous imprisonment for 1 year each and to pay a fine of Rs.5000/- each in default of payment of fine they shall undergo simple imprisonment for 3 months each for the offence under section 148 IPC.

Further the accused are sentenced to undergo rigorous imprisonment for 2 months each and to pay a fine of Rs.1000/- each in default of payment of fine they shall undergo simple imprisonment for 1 month each for the offence under section 447 r/w 149 IPC. Further all the accused are sentenced to undergo rigorous imprisonment for 4 months each and to pay a fine of Rs.1000/- each in default of payment of fine they shall undergo simple imprisonment for 1 month each for the offence under section 323 r/w 149 IPC.

Further the accused are sentenced to undergo rigorous imprisonment for 1 year each and to pay a fine of Rs.3000/- each in default of payment of fine they shall undergo simple imprisonment for 3 months each for the offence under section 324 r/w 149 IPC.

Further the accused are sentenced to undergo rigorous imprisonment for 5 years each and to pay a fine of Rs.10000/- in default of payment of fine they shall undergo rigorous imprisonment for 6 months each for the offence under section 307 r/w 149 IPC.

These accused are entitled to get set off under section 428 Cr PC. The substantive terms of sentence shall run concurrently. If the fine amount is realised a sum of Rs.50000/- shall be given to PW6 as compensation under section 357(1)Cr.PC. Further the accused are acquitted tinder section 235(1) Cr.PC for the offence punishable under section 294(b) r/w 149 IPC. MO1 and 2 will be destroyed”

6. The learned counsel for the appellants would submit that the entire case is the outcome of political rivalry between the accused persons and the injured persons. He also submitted that the injuries sustained by the injured persons, viz., PW6, PW7 and PW8, were trivial in nature. Therefore, the learned Additional Sessions Judge went wrong in finding that accused Nos.1 to 7 had committed offences punishable under Sections 143 (now BNS 189), 144 (now BNS 189), 147 (now BNS 191), 148 (now BNS 191), 447 (now BNS 329), 323 (now BNS 115(2)), 324 (now BNS 118(1)) and 307 (now BNS 109) r/w. 149 of IPC. According to him, in order to prove Ext.P7, the accident register-cum-wound certificate of PW6, PW11 examined was not the doctor who had issued the same. It is pointed out that when evaluating the entire evidence, false implication of the appellants in this crime due to political rivalry could be discernible and in such view of the matter, the appellants are entitled to acquittal, enlarging the benefit of doubt.

7. The learned Public Prosecutor opposed the contentions raised by the learned counsel for the appellants. According to him, PW6 sustained very serious injuries and multiple fractures on vital parts, as discernible from the evidence of PW11 and Ext.P7, though PW7 and PW8 did not sustain very serious injuries, as discernible from Ext.P1, supported by the evidence of PW1 and Ext.P8, supported by the evidence of PW11. According to the learned Public Prosecutor, on evaluating the evidence, the ingredients for the offences could be found, and in such a case, there is no necessity to interfere with the verdict impugned.

8. Having addressed the rival arguments, the points arise for consideration are;

1. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 143 (now BNS 189) r/w. 149 of IPC?

2. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 144 (now BNS 189) r/w. 149 of IPC?

3. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 147 (now BNS 191) r/w. 149 of IPC?

4. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 148 (now BNS 191) r/w. 149 of IPC?

5. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 447 (now BNS 329) r/w. 149 of IPC?

6. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 323 (now BNS 115(2)) r/w. 149 of IPC?

7. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 324 (now BNS 118(1)) r/w. 149 of IPC?

8. Whether the trial court went wrong in holding that the accused persons committed offence punishable under Section 307 (now BNS 109) r/w. 149 of IPC?

9. Whether the trial court verdict requires interference?

10 The order to be passed.

9. Point Nos.1 to 10:

Here, the injured persons are PW6, PW7 and PW8, as already mentioned. PW6 examined in this case is the de-facto complainant as well as one of the injured witnesses. He deposed that, at about 8.00 pm on 11.04.2013, when the local committee meeting was going on in the party office at Payimbalassery, he heard some tumult and annoyance from outside. He came out of the party office to see what was going on outside. All of a sudden, a mob consisting of these accused persons attacked him. He further deposed that the first accused, Ali Fawas, who carried an iron rod, beaten on his head. The second accused, Ali Jaseel, hit him with a piece of stone on his head. Then the 7^th accused kicked him. In the meantime, Ali Fawas was shouting to "kill him". PW6 further deposed that Bhaskaran and Irshad (PW8 and PW7 respectively) came to his rescue. But they were also beaten by the mob. Thereafter, he was taken to the road by Sreedharan and Bhaskaran and then to the Medical College Hospital by Abdurahiman, PW10. He further deposed that all of these accused were the members of the said mob and they were holding deadly weapons. He testified that he had prior acquaintance with these accused persons. According to him, he gave Ext.P5 statement to the police while he was undergoing treatment pursuant to the injuries sustained in this occurrence. He had identified MO1 and MO2, used by accused Nos.1 and 2 respectively.

10. Another injured witness examined is PW7. He deposed that at the time of incident, he was in front of the party office. Hearing hue and cry from the party office, he rushed there and then he found PW6 was laying in front of the courtyard of the party office. When he attempted to take care of him, he was also beaten by these accused. He further deposed that Ali Fawas (A1), Ali Jaseel (A2), Navas (A3), Shanif (A4), Aboobacker Siddick (A5), Ramees (A6) and Uvaise (A7) were in the mob of assailants and they were holding iron rods and stones. He was beaten by Navas (A3) with an iron rod. He would further depose that two days prior to the occurrence, there was an incident in which he sustained injuries, in the said incident also, some of these accused were involved. In paragraph No.18 of the judgment, the learned Additional Sessions Judge was not inclined to accept the evidence of PW7, holding that his evidence would be against the natural human conduct.

11. Supporting the evidence of PW6 and PW7, PW8, Sri.Bhaskaran, who also sustained injuries in this occurrence as on 11.04.2013, gave evidence. According to him, when he had reached the market, he heard a cry from the party office and found PW6, Sri.Balan lying on the veranda of the office and he tried to lift him. While he was doing so, a group of persons attacked him, and they included Shanif (A4), Navas (A3) and Ramees (A6). Consequently, he fell down and then they kicked him. His version further is that he had sustained injuries in this occurrence. He deposed that when more persons reached the place, the accused persons ran away. He identified Navas (A3) and Ramees (A6) at the dock. Similarly, while evaluating the evidence of PW8, in paragraph No.19, the learned Additional Sessions Judge found that the ocular testimony of PW8 also not safely be reliable.

12. Even ignoring the evidence given by PW7 and PW8, for the reasons extracted in the judgment, the learned Additional Sessions Judge believed the evidence of PW6 to find commission of offences under Sections 143 (now BNS 189), 144 (now BNS 189), 147 (now BNS 191), 148 (now BNS 191), 447 (now BNS 329), 323 (now BNS 115(2)), 324 (now BNS 118(1)) and 307 (now BNS 109) r/w. 149 of IPC by the accused. In this context, the medical evidence regarding the treatment underwent by PW6 soon after the occurrence also is very relevant. PW11, Dr.Chandrasekharan S., testified that while he was working as Assistant Professor in General Surgery at the Government Medical College Hospital, Kozhikode, he worked along with Dr.T.V.Murali for the same period and was familiar with the handwriting and signature of Dr.T.V.Murali. According to him, Dr.T.V.Murali was not working in the Medical College Hospital during the period of his examination and was doing higher studies. Thus his presence for examination could not be secured. He deposed that at 9.00 p.m. on 11.04.13, Dr.Murali examined one Balan (PW6) on the allegation that

ഒരു കൂട്ടം ആളുകൾ ആക്രമിച്ച് ഉണ്ടായ പരിക്ക് മടവൂർ പൈമ്പാലശ്ശേരി 8.30 pm ന് on 11.04.2013

and he had noted the following injuries sustained to Balan.

Injuries 6 x .5 x .5 cm lacerated wound frontal region. Left eye, black eye / hematoma. C.T. Scan showed linear hematoma. Fracture orbit medial wall, fracture frontal wall. Fractural left maxillary sinuses fracture through thread sinuses.

It was through him, the certificate issued by Dr.T.V.Murali which would bear his signature got marked as Ext.P7. According to him, these injuries caused could be possible as alleged. PW1 deposed further that on the same day at 10 p.m., Dr.T.V.Murali examined Irshad, 24 years old male, came with same allegation. He deposed further that the injury is soft tissue contusion right flank abdomen. No other injury. The wound certificate issued by Dr.T.V.Murali, which would bear his signature, got marked as Ext.P8. He opined that “injuries mentioned in Ext.P7 are grievous in nature and might have resulted in death, if not medically attended properly”.

13. During cross-examination, possibility of sustaining injuries by other means was also suggested and got answered in the affirmative. On going through the evidence of PW11, supported by PW6, very serious injuries, including multiple fractures on the head and maxilliary region, to be found as far as PW6 is concerned. Thus the evidence of PW6, supported by the medical evidence, would establish the prosecution case.

14. In addition to that, PW1, Dr.Balaji Scaria, who had examined PW8, also supported issuance of Ext.P1 wound certificate. According to him, PW8 sustained injuries to the left shoulder and arm. The patient was conscious and oriented at the time of examination. During cross-examination, he stated that X-ray did not show any bony injury. During further cross-examination, he testified that the patient had made only complaints of pain. It is true that, as far as the injuries sustained by PW8 are concerned, the same are not serious injuries.

15. Now, it is necessary to address the ingredients required to attract the offences under Sections 324 (now BNS 118(1)) and 307 (now BNS 109) of IPC. Section 324 (now BNS 118(1)) of IPC reads as under:

“S.324 – Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting. stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

16. The ingredients for the offence punishable under Section 324 (now BNS 118(1)) of the IPC are as under:

“(i) That the accused voluntarily caused hurt to another person;

(ii) That such a hurt was in exception to cases provided under section 334;

(iii) That such hurt was caused

(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or

(b) by means of fire or any heated substance, or

(c) by means of any poison or any corrosive substance, or

(d) by means of any explosive substance; or

(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or

(f) by means of any animal. Evidence.- To bring home an offence punishable under section 324, the prosecution is to prove: (a) that the accused caused hurt i.e., caused bodily pain, or disease or infirmity (vide section 319 of the Indian Penal Code, 1860) to another; (b) that it has been caused voluntarily i.e., with knowledge or intention to cause; (c) that it has been caused by any instrument for shooting, or stabbing or cutting, or by any instrument which qua weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deleterious to the human body to inhale to swallow or to receive into blood or by means of any animal, and (d) that the offence does not attract section 334 IPC.”

17. Section 307 (now BNS 109) of the IPC reads as under:

“307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

18. Similarly, the ingredients for the offence punishable under Section 307 (now BNS 109) of the IPC are as under:

“(i) That the accused did an act;

(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury a is likely to cause death; and

(iii) That the accused had no excuse for incurring the risk of causing such death or injury. In other words, the ingredients are;

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:

(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life.”

19. Coming to the offence under Section 149 (now BNS 190) of the IPC, Section 149 (now BNS 190) of the IPC provides as under:

“S.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 committing of that offence, is a member of the same assembly, is guilty of that offence.”

20. In order to constitute the offence provided under Section 149 (now BNS 190) of the IPC, the following essentials have to be established.

“1. There must be unlawful assembly.

2. Commission of an offence by any member of an unlawful assembly.

3. Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.”

In Debashis Daw v. State of West Bengal [(2010) 9 SCC 111 : AIR 2010 SC 3633 : 2010 (9) SCR 654], the Supreme Court, after referring to the decision in Akhtar Alam v. State of West Bengal [(2009) 7 SCC 415 : 2009 (6) Scale 745) observed that the prosecution is required to establish whether the accused persons were present and whether they shared a common object. The relevant question to be examined by the court is the common object of the assembly. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object. The common object has to be definitely found and has not to be a matter of conjecture or inference.

It is not correct to say that section 149 of the IPC does not constitute a substantive offence, that it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate Court to conviction for direct liability, though there was an acquittal by the trial Court of the direct liability of the offence. There is a legal distinction between a charge under section 302 IPC and a charge of constructive liability under sections 302/149 IPC i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased. Section 149 (now BNS 190) was certainly not otiose, for in any case it created a specific and distinct offence. It postulated an assembly of five or more persons having a common object, as named in section 141 of the IPC and then the commission of an offence by one member of it in prosecution of that object. Nor it is correct to say when dealing with an offence under section 149, that all the persons must combine together or help one another at the time of the assault.

Section 149 (now BNS 190) requires presence of unlawful assembly of five or more persons with any of the five objects enunciated in section 141 of the IPC. Even if any of the members of unlawful assembly commits an offence in prosecution of the common object of the assembly, every member of such assembly is guilty of such offence.

Section 149 incorporates the principle of vicarious liability. The section is declaratory of the circumstances under which that principle could be applied. As per this Section, the liability of the members other than the principal offender rests upon the fact whether those members knew that the offence actually committed was likely to be committed in prosecution of its common object, the knowledge which they had of the purpose for which an unlawful assembly was formed, the conduct of its members, the nature of arms with which they armed themselves and whether the common object underwent any change prior to or at the time of occurrence. If such knowledge may not reasonably be attributed to other members of the assembly, their liability for the offence committed during the occurrence does not arise.

21. Here, the specific allegation of the prosecution is that accused Nos.1 to 7 formed into unlawful assembly, armed with deadly weapons, with knowledge that they are all members of the said assembly, sharing a common object to do away with PW6 and assaulted him with the said intention. The evidence of PW6 would go to show that he was attacked at 8.00 p.m. on 11.04.2013 by the accused persons, who had formed unlawful assembly, armed with deadly weapons, and spoke about the overt acts done by them with common object being part of the unlawful assembly. Even though the learned Additional Sessions Judge disbelieved the evidence of PW7 and PW8, PW7, another injured person, who came to rescue PW6, deposed that A1 – Ali Fawas, A2 – Ali Jaseel, A3 – Navas, A4 – Shanif, A5 – Aboobacker Sidheekh, A6 – Remees and A7 – Uvaise were members of the unlawful assembly and out of which the 3^rd accused beat him by using an iron rod. Coming to the evidence of PW8, he deposed that among the unlawful assembly of seven accused persons, Shanif (A4), Navas (A3) and Ramees (A6) attacked him, and in consequence thereof, he fell down after identifying them. Serious injuries were sustained to PW6 and the injuries sustained to PW7 and PW8 were extracted to corroborate the evidence of PW1. The learned Additional Sessions Judge was not inclined to accept the evidence of PW7 and PW8, but their evidence would suggest that they also sustained injuries in this occurrence.

22. Thus, even ignoring the evidence of PW7 and PW8, it is held that the prosecution has succeeded in establishing that accused Nos.1 to 7 formed into unlawful assembly with knowledge that they are all members of the said assembly, after sharing common object and intention to do away PW6 and thus they attacked PW6 to do away with him, though PW6 survived. On evaluating the evidence discussed in detail, with the necessary ingredients to prove the offences alleged to be committed, this Court is of the view that the learned Additional Sessions Judge is right in finding that accused Nos.1 to 7 had committed offences punishable under Sections 143 (now BNS 189), 144 (now BNS 189), 147 (now BNS 191), 148 (now BNS 191), 447 (now BNS 329), 323 (now BNS 115(2)), 324 (now BNS 118(1)) and 307 (now BNS 109) r/w. 149 of the IPC. therefore, the conviction is liable to be confirmed.

23. Coming to the nature and circumstances of this case, the sentence imposed against the accused persons is found to be very reasonable. In such view of the matter, no interference in the sentence also is warranted. Therefore, the verdict impugned is liable to be confirmed.

In the result, these appeals fail and the same are dismissed.

The orders suspending sentence and granting bail to the accused persons stand cancelled and the bail bond executed by the accused persons also shall stand cancelled. The appellants/accused Nos.1 to 7 are directed to surrender before the Additional Sessions Court, forthwith to undergo the sentence, failing which, the Additional Sessions Judge is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Additional Sessions Court, forthwith, without fail, for information and compliance.