REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 313 OF 2001

State of Karnataka …Appellant

Versus

Chikkahottappa @ Varade Gowda  & Ors. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench  of  the  Karnataka  High  Court  partially  allowing  the

appeal filed by the respondent who were convicted for offence

punishable under Sections 148,302 read with Section 149 of

the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’).   By  the

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impugned judgment the High Court held that the respondents

were to be convicted under Section 148 and Section 326 read

with Section 149 IPC.

2. Background facts as projected by the prosecution in a

nutshell are as follows:

Eight persons faced trial for allegedly committing murder

of one Rajanna (hereinafter referred to as the ‘deceased’)  on

13.7.1992.   It  was also alleged that they committed offence

punishable  under  Sections  143,  147  &  148  IPC.   First

Information  Report  (in  short  the  ‘FIR’)  was  lodged  on

13.7.1992 at about 9.30 p.m.  

It  was  alleged  that  in  an  incident  that  took  place  at

Bandihalli  at about 7 p.m. on 13.7.1992, the eight accused

who were members of an unlawful assembly had assaulted the

deceased Rajappa with machus, sticks and a wooden reaper

and  as  a  result  of  the  injuries  sustained  by  him,  he  died

shortly thereafter. The accused are all inter-related and there

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was some rivalry between the two groups which is of a long

standing  nature  and  that  this  was  the  real  reason  for  the

incident. The mother of the deceased Ningamma (P.W.l) stated

that  the  accused  persons  had  come  to  her  house  shortly

before  the  incident  and  some  of  them  were  armed  with

machus  and  remaining  persons  had  clubs  and  a  wooden

reaper  with  them.  They  asked  her  as  to  where  her  son

Rajanna was. She informed the persons who had come there

that Rajanna had gone out and she bolted the door because

they were in an aggressive mood. According to her, they threw

stones on the house and once again enquired about Rajanna

and since she told them that he was not in the house, they left

the place stating that they would finish him. Shortly after this,

she  went  in  the  direction  in  which  these  persons  have

proceeded  and saw Rajanna  approaching  from the  opposite

side. On seeing the accused persons, he tried to escape from

them  but  the  accused  caught  hold  of  him  and  severely

assaulted  him.  Rajanna  fell  on  the  ground  with  several

injuries  on his head and different parts of the body and the

lower limbs and that he was bleeding.  The accused left  the

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place  with  the  weapons  stating  that  Rajanna  was  finished.

Attempt was made to take the injured person to the hospital

at  Huliyurdurga  in  a  car.  Rajanna  died  on  the  way  and

ultimately, the body was taken to the Police Station and from

there  to  the  hospital.  The  complainant  Ningamma  (PW1)

lodged the complaint at 9.30 p.m. and this complaint which

has  been  treated  as  the  F.I.R,  was  ultimately  sent  to  the

J.M.F.C.,  Kunigal,  which reached him at 7.30 am, the next

morning.  Accused  No.4-Lokesh  had  also  sustained  two

injuries of considerable seriousness on his left thigh and right

leg respectively and he came to be admitted to the hospital at

Huliyurdurga  on the same evening at about 7.30 p.m.  A-4

had  lodged  a  complaint  with  the  police  to  the  effect  that

deceased Rajanna and two other persons had assaulted him

near his house at about 5.30 p.m. on 13.7.1992 and that he

had  sustained  the  injuries  in  the  course  of  that  incident.

Ultimately,  the  Police  filed  a  report  in  respect  of  this

complaint.  As  far  as  the  complaint  lodged  by Ningamma is

concerned,  the Police  registered an offence  being Crime No.

92/1992 under  Section 302 IPC read with Section 149 IPC

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and after completion of the investigation, put up eight accused

for  trial.  The  learned  trial  Judge  found  the  eight  accused

persons guilty of the offences punishable under Sections 302

read with 149 IPC and convicted all  of them and sentenced

them to suffer R.I, for life under the main charge along with a

fine  of  Rs.5,000/-  in  default,  to  undergo  further  R.I.  for  a

period of one year.  The accused were also convicted of offence

punishable  under  Section  148  IPC  and  imposed  fine  of

Rs.500/- in default, to undergo simple Imprisonment for three

months.   

3. In appeal, the High Court found that A4 i.e. Lokesh was

not  guilty  but  the  rest  of  the  accused  persons  were

responsible  for  the  death  of  the  deceased.  But,  however

altered the conviction as noted above.  The High Court for the

purpose of altering the conviction noted as follows:

“On  behalf  of  the  appellants,  it  was pointed out to us that on the basis of the oral evidence,  it  has  not  been  established  as  to which  accused  dealt  which  blow  and  the

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number of blows that each of the accused had inflicted.   Secondly,  on a  careful  scrutiny  of the medical evidence,  we find that there is a serious lacunae is in so far as the doctor has not indicated as to which of them are not.  Of the  twenty  injuries  that  were  found  on  the person of deceased Rajanna, it is true that two of them are on the head, the majority of them are aimed at the lower part of the body and the limbs and consequently, having bestowed our very serious attention to the cumulative effect of this record.  We find that it was incorrect on the part of the trial court to have invoked the provisions of Section 302 IPC.  Having regard to the weapons used and the nature of injuries that have been inflicted, the accused would be liable to be convicted of the offence punishable under Section 326 read with 149 IPC.”         

4. In  support  of  the  appeal  learned  counsel  for  the

appellant submitted that the reasons indicated by the High

Court  are  palpably  wrong  and  cannot  be  sustained.  With

reference to the injuries sustained it was submitted that the

intention of the unlawful assembly is clear from the weapons

held  by  the  assailants.   The  injuries  inflicted  on  the

eyewitnesses  i.e.  Ningamma  (PW1),  Appaji  (PW3),  Sivappa

(PW6)  clearly  described  the  role  of  the  accused  persons  in

surrounding and assailing the deceased.  It is submitted that

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the  High  Court  has  wrongly  held  that  there  were  only  two

injuries on the head and that the rest of the injuries on the

lower part of the body and limbs.  It is not factually correct on

a bare reading of the injury report.  In fact, there were three

injuries on the head.  Additionally, the injuries 6 & 7 clearly

show the force with which the injuries were inflicted, and in

fact, injury No.7 shows that a hand was severed. The doctor’s

evidence also shows that there were multiple fractures of base

of the occipital bone.

5. Learned counsel  for the respondent on the other hand

shows that the acquittal of A4 because of non-explanation of

injuries on him shows the falsity of the prosecution case.  It

was stated that the occurrence took place in the course of free

fight  and  therefore  the  High  Court’s  judgment  does  not

warrant  any  interference.   It  was  submitted  High  Court’s

judgment shows that Section 149 IPC was ruled out.

6. The pivotal question is applicability of Section 149 IPC.

Said  provision  has  its  foundation  on  constructive  liability

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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.   Where  common  object  of  an  unlawful

assembly  is  not  proved,  the  accused  persons  cannot  be

convicted with the help of Section 149. 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. 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 such 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. 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

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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

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 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

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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.

7. ‘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

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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.

8. 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 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,  if  it  can  be  held  that  the  offence  was  such  as  the

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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  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 culled out, it may reasonably be

collected from the nature of the assembly, arms it carries and

behaviour at the time of or before or after the 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

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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 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  the  first  part  but  offences  committed  in

prosecution of the common object would also be generally, if

not always, be within the second part, namely, offences which

the  parties  knew  to  be  likely  to  be  committed  in  the

prosecution of the common object. (See  Chikkarange Gowda

and others v. State of Mysore  AIR 1956 SC 731). These

aspects were also recently highlighted in  Chandra & Ors. v.

State of U.P. and Anr. [2004 (5) SCC 141].

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9. The injuries which were inflicted by the accused persons

on the deceased as noted by the High Court are as follows:

l. One contusion 4" X 4” on occipital region of head.

2. Deep incised wound 2" X 1" x 2" right side of the partial

region of head.

3. Incised wound 6 X 3" X 1" on the left side of the fore

head. Bone exposed on both bounds.  Blood stains seen

on all the wounds.

4. Contusion 3”x4” on right shoulder joint.   

5.    Deep  incised  wound 5"-X 2" x1" on middle  1/3rd of

right arm humerous exposed.

6.  Incised wound 4”x3” x2” on right axilla in horizontal

direction, pleura and lung exposed.

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7. Deep  incised  cut  injury  on  right  wrist  joint.  Right

hand detached from the body at the  level  of  wrist joint,

only skin flap is connecting, all the bones are exposed.

8. Deep incised wound 2" X 2" on dorsum of the left hand

bones exposed wound is in horizontal direction.

9. Incised wound 2" x 1" x 1" on left elbow joint, horizontal

direction,  bones  exposed,  Radial  artery  and small  blood

vessels cut open.

10. Deep incised wound upper 1/3rd of the left fore arm

2”x2”1 just below the elbow joint, bones exposed.

11. Deep incised wound 4" x 3" x 2" on middle, 1/3rd and

the left thigh, shaft of left femur exposed and blood vessels

cut open.  Wound is in a horizontal direction.

12. Deep incised wound 3" x 2" x 1" on the left knee joint,

pattellar  tendon  are  cut  and  bone  exposed.  Horizontal

direction femeral artery and sophanus vain cut open.

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13.  Deep  incised  wound  3"  x  2"  x  2"  right  knee  joint,

pattella  bone  exposed  2"  x 2"  x  2"  blood  vesels  are cut

open, horizontal direction.

14. Deep incised wound 6" x 3" just below the left knee

joint. Head of the tibia exposed. Blood  vessels cut open,

horizontal direction.

15. Incised wound 3" x 2" x 3" on lateral aspect  of  right

thigh,  shaft  of  femur  exposed,  blood  vessels  cut  open,

horizontal in direction, blood clots seen on the wounds.

16. Deep incised wound 6" x 4" x 5" middle 1/3rd  of right

leg,  tibia  and  febul  also  cut  superficially,  horizontal  in

direction, femoral ortery sophenus vain cut open.

17. Left  ankle  joint  and tendo achulus tender  also  cut

into pieces.

18. Deep  incised  wound  3”x2”x1”  on  the  left  popleteal

fosa, all the blood vessels cut open, horizontal in direction.

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19. Incised  wound  6”x4”  on  right  leg  on  the  medial

aspect,  all  the  muscles  and  blood  vessels  cut  open,

horizontal in direction.

20. Incised wound 2”x 2” x1” on dorsum of right foot,

horizontal in direction.

10. As noted above,  there  were  three injuries  on the head

and injury No.6 was of such nature that the plura and lung

were exposed.  Injury No.7 was a deep incised cut injury on

right wrist joint.  Right hand was detached from the body at

the level of wrist joint.  Further, rest of the injuries were not

on the lower parts of the body as noted by the High Court.  In

fact the injury No.4 was an injury on the right shoulder joint

and  injury  No.5  was  a  deep  incised  wound  5”x  2”x  1”,  on

middle 1/3rd of right arm humerous exposed.

11. Most of the injuries were deep incised wounds of varying

sizes. Additionally, as noted above, the multiple fractures on

the base of the occipital bone was noticed.  The intention of

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the assailants as established by the evidence of the witnesses

was  the  cause  of  death  of  the  deceased  and  not  to  cause

grievous injury.

12. Above being the position the High Court’s  judgment is

clearly unsustainable and is set aside.  The respondents are

convicted for offence punishable under Section 302 read with

Section 149 IPC instead of Section 326 read with Section 149

IPC as held by the High Court.  The sentences imposed by the

Trial  Court  stand  restored.  Respondents  shall  surrender  to

custody forthwith to serve remainder of sentences.  

13. Appeal is allowed.

……………………………J. (DR. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

……………………………J. (AFTAB ALAM)

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New Delhi:  May 16, 2008

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