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CASE NO.: Appeal (crl.)  1268 of 1997

PETITIONER: Rajendran & Anr.

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 13/04/2004

BENCH: B.P. Singh & S.B. Sinha.

JUDGMENT: J U D G M E N T

B.P.Singh, J.

               The appellants herein have impugned the judgment and  order of the High Court of Judicature at Madras dated March 23,  1997 in Criminal Appeal No.177 of 1988 whereby their conviction  under Section 302 read with Section 149 of the IPC and sentence of  life imprisonment, as well as their conviction under Section 147 and  sentence of six months rigorous imprisonment has been affirmed by  the High Court.  We may observe that apart from these two  appellants, two other persons who were convicted by the same  judgment and order had also preferred a Special Leave Petition  before this Court  alongwith the appellants herein, but the Special  Leave Petition in so far as it related to them, was rejected by this  Court by order dated 12.12.1997.  

               In all eight persons were put up for trial before the  Second Additional Sessions Judge, Madras, charged variously of  offences under Sections 147, 148, 302 and 302/149 IPC.  The  appellants herein were A-1 and A-6 before the trial court.  The  learned Additional Sessions Judge by his judgment and order dated  25th  March, 1988 in Sessions Case No. 142/87 found A-2 guilty of  the offence under Section 302  IPC and sentenced him to  imprisonment for life.  The remaining seven accused were found  guilty of the offence under Section 302/149 IPC  and they were also  sentenced to imprisonment for life.  Further, the appellants herein as  well as A-3, A-4 and A-7 were found guilty of the offence under  Section 147 IPC and sentenced to undergo six months rigorous  imprisonment.  A-2, A-5 and A-8 were further sentenced to rigorous  imprisonment for one year under Section 148 IPC.  

               Aggrieved by the judgment and order of the trial court,  three appeals were preferred before the High Court of Judicature at  Madras being Criminal Appeal Nos. 177-179 of 1988.  The appellants  herein were the appellants in Criminal Appeal No. 177 of 1988  alongwith two others.  It appears that during the pendency of the  appeal in the High Court, A-2 died.  Therefore, the appeal as against  him abated. The High Court   by a common judgment of March 25,  1997 allowed the appeals preferred by A-3, A-4 and A-7.  However, it  confirmed the conviction and sentence of the other accused including  the appellants herein.  A Special Leave Petition was preferred by the  appellants herein alongwith A-5 and A-8, but as earlier noticed, the  Special Leave Petition preferred on behalf of A-5 and A-8 was  rejected by this Court.  In this appeal, therefore, we are only  concerned with the conviction of the two appellants herein.

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               The case of the prosecution was that on 21.6.1987 at  about 9.00 P.M., all the accused having formed themselves into an  unlawful assembly with the common object of committing the murder  of one Babu surrounded him and assaulted him as a result of which  he succumbed to his injuries.  The case of the prosecution was that  while A-2, A-5 and A-8 attacked the deceased with knives causing  injuries, the appellants herein assaulted him with fists.  The three  remaining accused who have since been acquitted, were alleged to  have dragged the deceased to a considerable distance, though there  was no allegation that they took part in the assault. So far as the  acquitted accused are concerned the High Court recorded a finding in  their favour since the evidence disclosed that they had come to the  place of occurrence after the assault on the deceased was over and  therefore were not members of the unlawful assembly, sharing a  common unlawful object.  In any event, the High Court gave to them  the benefit of doubt as there was no evidence to prove that the  deceased had been dragged by them as alleged.   The evidence on  record disclosed the complicity of the remaining accused, including  the appellants herein.  They were, therefore, convicted and  sentenced as earlier noticed.  

               Learned counsel for the appellants submitted that having  regard to the role played by the appellants herein, they cannot be  found guilty of the offence under Section 302 read with Section 149  IPC. The submission is based on the factual foundation that the  appellants herein did not assault the deceased with any weapon and  merely assaulted him with fists.  They, therefore, did not share the  common object of the unlawful assembly to commit the murder of  the deceased.  

               The submission urged on behalf of the appellants must   be rejected.  The concurrent finding of fact of the courts below is  that the appellants alongwith three others, namely, A-2 (since  deceased), A-5 and A-8 formed themselves into an unlawful  assembly, the common object of  which was to commit the murder of  Babu deceased.  Once it is held that they were members of the  unlawful assembly and in pursuance of the common object of such  an assembly, Babu was murdered, the appellants cannot escape their  liability because every member of the unlawful assembly is guilty of  the offence committed by any member of such unlawful assembly, if  in prosecution of the common object of that assembly an offence is  committed.  The appellants cannot argue that they were not  members of the unlawful assembly because their participation in the  assault has been proved beyond reasonable doubt. Once their  participation is established, they cannot escape their liability by  pleading that they did not cause any serious injury but merely  assaulted the deceased with fists.  The mere fact that they were  members of the unlawful assembly at the time when the offence was  committed, makes them guilty of the offence committed by any  member of the unlawful assembly in prosecution of the common  object of that assembly.   Section 149 of the IPC  enunciates a  principle  of vicarious liability and, therefore, every member of the  unlawful assembly  is guilty of the offence committed by any member  of such assembly.  Learned Counsel for the appellants relied upon  the decision of this Court in Rajendra Shantaram Todankar v. State  of Maharashtra  & Ors. 2003(2) JT SC96 and submitted that the  principles enunciated therein may be applied to the facts of this case.   We are afraid the aforesaid decision renders no help to the appellants  because in that case some of the appellants were acquitted on a  finding that they did not share any common object with those who  indulged in an assault on another person, assault on whom was not  pre-planned, nor shared as common object by them, and the  evidence did not disclose that an unlawful assembly came into  existence at the spur of the moment.  This is not a case of that  nature because in the instant case, the very object of the unlawful

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assembly was to commit the murder of Babu and, in fact, Babu was  murdered in pursuance of the common object of the unlawful  assembly. The participation of the appellants not being in doubt, their  conviction with the aid of Section 149 cannot be assailed.  

               We, therefore, find no merit in this appeal and the same  is accordingly dismissed.  

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