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CASE NO.: Appeal (crl.)  359 of 2007

PETITIONER: Mummidi Hemadri and Ors

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 16/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.2060 of 2006)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered  by a Division Bench of the Andhra Pradesh High Court  which upheld the conviction of the appellants for the  offence punishable under Sections 148 and 302 read with  Section 149 of the Indian Penal Code, 1860 (in short the  ’IPC’).

In all, six accused persons faced trial. The present  appeal is by accused 2, 3 and 6 (in short described as A-2,  A-3 and A-6). It is to be noted that the present special  leave petition so far as it relates to accused 1, 4 and 5 (in  short described as A-1, A-4 and A-5) was dismissed by  order dated 21.4.2006 while  A-4 and A-5 were convicted  for the offence punishable under Section 302 IPC, A-1, A- 2, A-3 and A-6 were convicted for offence punishable  under Section 302 read with Section 149 IPC and each of  the accused persons were convicted for the offence  relatable to Section 148 IPC, for which they were  sentenced to suffer rigorous imprisonment for one year  and to pay a fine of Rs.100 each with default stipulation.  In respect of offence punishable under Section 302 read  with Section 149 IPC each accused was sentenced to  undergo imprisonment for life and to pay a fine of  Rs.300/- with default stipulation.  

Prosecution version as unfolded during trial is as  follows:

On 21.10.1997 at about 5 O’clock near old K.B.S.  Office at Chinthareddipalem Donka, Stone Housepet,  Nellore, the accused persons formed an unlawful assembly  and in pursuance of their common object, they caused the  death of one Nellisetti Venu (hereinafter referred to as the  ’deceased’) by stabbing with knives.  

According to the prosecution, PW-2 is the paternal  uncle’s son of the deceased. The deceased and the  material witnesses were living in Wood House Sangham in  Nellore whereas the accused persons were living in

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different localities in Nellore Town. A-1 was doing business  in gunny bags at Wood House Sangham and accused Nos.  2 to 6 were working as coolies. One week before the  incident, accused No.1 harassed PW-6, who is the  daughter in law of PW-7. On 20.10.1997 at about 3.00  p.m. PWs 1, 8, 10 Kapu Subba Rao (the husband of PW-6)  and the deceased went to the shop of A-1 and chastised   A-1 for spreading  rumours that PW-6 was having illicit  intimacy with one painter.  On 21.10.1997 at about 3.30 p.m. a mediation was  held at the shop of A-1 in the presence of mediators PW-9  and one Mekala Ramaiah. Both the elders advised the  parties to settle the dispute amicably. However, A-1 did  not listen to the said advice, while the deceased stated  that it is proper to abide by the advice of the elders. Since  the mediation failed, both the parties left the place.  Subsequently, PWs 1 to 5 and the deceased together  joined at Bhaskar’s Tea Stall for discussion about the  mediation. Then the deceased told them that he had to  talk to one Gas Dealer near Sivalayam and he started to  go to that place. PWs 1 to 5 accompanied him. On  reaching near KBS office, they saw the accused persons.  A-1 instigated the other accused persons to attack them.  Then all the accused persons surrounded them with  weapons. A-2, A-3 and A-6 caught hold of the deceased. A- 4 dealt two blows with a knife on the back of the deceased.  A-5 stabbed the deceased with a knife on the left side of  chest below the ribs and also on the right thigh. Seeing  this PW’s 1 to 5 raised cries. On hearing their cries,  number of people gathered there and upon their arrival,  the accused persons went away. Thereafter, PW’s 1 to 5  shifted the deceased to Government Head Quarters  Hospital in an auto rickshaw.  The Doctors examined the  deceased and declared him as dead. After 20 minutes, the  Sub-Inspector of Police, on receipt of telephonic  information, came to the hospital and examined PWs 2 to  5. On the same day at about 6.45 p.m. PW-1 gave a report  (Ex.P1) to PW-18 whereupon he registered a case in Crime  No.135 of 1995 under Sections 147, 148, 302 and 506  read with Section 149 IPC and recorded FIR in Ex.P 9. At  about 7.30 p.m. PW-19 the Circle Inspector of Police took  up investigation, visited the scene of offence and recorded  the statements of PW’s. PW-19 conducted inquest over the  dead body of the deceased in the presence of PW-14 and  another. During the course of inquest, PW-19 seized M.Os.  4 to 7 from the dead body of the deceased. At about 1.30  p.m. PW-17 the Civil Assistant Surgeon, Government  Maternity Hospital, conducted autopsy over the dead body  of the deceased and opined that the cause of death was  due to shock and hemorrhage due to multiple injuries as  per the post mortem report (Ex.P 7). On 8.11.1997, PW-19  arrested the accused persons at Ayyappa Swamy Temple,  Nellore. Later PW-21 the Circle Inspector of Police sent the  material objects to FSL who submitted the report (Ex.P24).  On completion of investigation PW-21 filed charge sheet.   The plea of the accused was that of total denial.      Twenty one witnesses were examined to further the  prosecution version. PWs 1 to 5 were claimed to be eye- witnesses.  Placing reliance on the evidence of PWs 1 to 5  the trial Court recorded the order of conviction.   The conviction was challenged before the High Court.  The main plank of the appellants’ argument before the  High Court was that there were various inconsistencies

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and infirmities and the prosecution has failed to establish  its case beyond reasonable doubt. It was further  submitted that there was discrepancy in the evidence so  far as A-1, A-4 and A-5 are concerned. It was further  pleaded that A-2, A-3 and A-6 did not make use of any  weapon. There was no common intention to kill the  deceased and even according to the prosecution the only  role attributed to A-2, A-3 and A-6 was that they caught  hold of the deceased while the other accused persons  inflicted the injuries.   Therefore, it was contended that  Section 149 IPC has no application.

Stand of the prosecution before the High Court was  that there was  clear cut and direct evidence attributed  against all the accused persons and even though the A-2,  A-3 and A-6 did not inflict  injuries, they facilitated the  attacks and in that view Section 149 IPC has been rightly  applied.  

The High Court found that all the accused persons  came together, they were armed and even though A-2, A-3  and A-6 did not attack the deceased, they caught hold of  the deceased and that facilitated the attack by the other  accused persons. The High Court found no substance in  the plea of the accused persons and dismissed the  appeals.  

The stand taken by the accused and the prosecution  before the High Court were reiterated in this appeal.  The pivotal question is applicability of Section 149  IPC. Said provision has its foundation on constructive  liability which is the sine qua non for its operation.  The  emphasis is on the common object and not on common  intention.  Mere presence in an unlawful assembly cannot  render a person liable unless there was a common object  and he was actuated by that common object and that  object is one of those set out in Section 141 IPC.  Where  common object of an unlawful assembly is not proved, the  accused persons cannot be convicted with the help of  Section 149 IPC.  The crucial question to determine is  whether the assembly consisted of five or more persons  and whether the said persons entertained one or more of  the common objects, as specified in Section 141 IPC.  It  cannot be laid down as a general proposition of law that  unless an overt act is proved against a person, who is  alleged to be a member of unlawful assembly, it cannot be  said that he is a member of an assembly.  The only thing  required is that he should have understood that the  assembly was unlawful and was likely to commit any of  the acts which fall within the purview of Section 141 IPC.   The word ’object’ means the purpose or design and, in  order to make it ’common’, it must be shared by all.  In  other words, the object should be common to the persons,  who compose the assembly, that is to say, they should all  be aware of it and concur in it.  A common object may be  formed by express agreement after mutual consultation,  but that is by no means necessary.  It may be formed at  any stage by all or a few members of the assembly and the  other members may just join and adopt it. Once formed, it  need not continue to be the same.  It may be modified or  altered or abandoned at any stage. The expression ’in  prosecution of common object’ as appearing in Section  149 IPC have to be strictly construed as equivalent to ’in  order to attain the common object’. It must be immediately  connected with the common object by virtue of the nature

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of the object. There must be community of object and the  object may exist only up to a particular stage, and not  thereafter. Members of an unlawful assembly may have  community of object up to certain point beyond which  they may differ in their objects and the knowledge,  possessed by each member of what is likely to be  committed in prosecution of their common object may  vary not only according to the information at his  command, but also according to the extent to which he  shares the community of object, and as a consequence of  this the effect of Section 149, IPC may be different on  different members of the same assembly.

       ’Common object’ is different from a ’common  intention’ as it does not require a prior concert and a  common meeting of minds before the attack.  It is enough  if each has the same object in view and their number is  five or more and that they act as an assembly to achieve  that object. The ’common object’ of an assembly is to be  ascertained from the acts and language of the members  composing it, and from a consideration of all the  surrounding circumstances. It may be gathered from the  course of conduct adopted by the members of the  assembly. What the common object of the unlawful  assembly is at a particular stage of the incident is  essentially a question of fact to be determined, keeping in  view the nature of the assembly, the arms carried by the  members, and the behaviour of the members at or near  the scene of the incident. It is not necessary under law  that in all cases of unlawful assembly, with an unlawful  common object, the same must be translated into action  or be successful. Under the Explanation to Section 141,  an assembly which was not unlawful when it was  assembled, may subsequently become unlawful. It is not  necessary that the intention or the purpose, which is  necessary to render an assembly an unlawful one comes  into existence at the outset. The time of forming an  unlawful intent is not material. An assembly which, at its  commencement or even for some time thereafter, is lawful,  may subsequently become unlawful. In other words it can  develop during the course of incident at the spot eo  instante.

Section 149 IPC, consists of two parts. The first part  of the section means that the offence to be committed in  prosecution of the common object must be one which is  committed with a view to accomplish the common object.  In order that the offence may fall within the first part, the  offence must be connected immediately with the common  object of the unlawful assembly of which the accused was  a member. Even if the offence committed is not in direct  prosecution of the common object of the assembly, it may  yet fall under Section 141 IPC, if it can be held that the  offence was such as the members knew was likely to be  committed and this is what is required in the second part  of the section. The purpose for which the members of the  assembly set out or desired to achieve is the object.  If the  object desired by all the members is the same, the  knowledge that is the object which is being pursued is  shared by all the members and they are in general  agreement as to how it is to be achieved and that is now  the common object of the assembly. An object is  entertained in the human mind, and it being merely a  mental attitude, no direct evidence can be available and,  like intention, has generally to be gathered from the act

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which the person commits and the result therefrom.  Though no hard and fast rule can be laid down under the  circumstances from which the common object can be  called out, it may reasonably be collected from the nature  of the assembly, arms it carries and behaviour at or before  or after the scene of occurrence. The word ’knew’ used in  the second limb of the section implies something more  than a possibility and it cannot be made to bear the sense  of ’might have been known’. Positive knowledge is  necessary. When an offence is committed in prosecution  of the common object, it would generally be an offence  which the members of the unlawful assembly knew was  likely to be committed in prosecution of the common  object.  That, however, does not make the converse  proposition true; there may be cases which would come  within the second part but not within the first part. The  distinction between the two parts of Section 149 IPC,  cannot be ignored or obliterated.  In every case it would be  an issue to be determined, whether the offence committed  falls within the first part or it was an offence such as the  members of the assembly knew to be likely to be  committed in prosecution of the common object and falls  within the second part. However, there may be cases  which would be within first part of the offences committed  in prosecution of the common object would also be  generally, if not always, within the second part, namely,  offences which the parties knew to be likely committed in  the prosecution of the common object. (See Chikkarange  Gowda and others v. State of Mysore (AIR 1956 SC 731)  and Chanda and Ors. v. State of U.P. and Anr. (2004 (5)  SCC 141).

Considering the background facts and the roles  attributed to the accused persons it is crystal clear that  the accused persons had caught hold of the deceased and  thereafter the attacks by the other A-4 and A-5 came. A-1  instigated the other accused persons to attack the  deceased.  

There is some discrepancy in the evidence as to  whether A-2, A-3 and A-6 were armed. While some of the  witnesses stated that they were without arms, some have  specifically stated that they were armed. Their version is  that before the attacks A-2, A-3 and A-6 caught hold of  the deceased.  In view of aforesaid background, though  Section 149 IPC has to be applied, yet it has to be Section  304 Part II read with Section 149 IPC. The conviction is  accordingly altered. Custodial sentence of 8 years would  meet the ends of justice.  

The appeal is allowed to the aforesaid extent.