Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.408 OF 2007

Anna Reddy Sambasiva Reddy & Ors.         ..Appellants

Versus

State of Andhra Pradesh       ..Respondent

J U D G E M E N T

R.M. LODHA, J.

This  criminal  appeal  by  special  leave  unfolds  a

woeful  tale  of  a  village  political  rivalry   leading  to  double

murder; prior thereto also  there were attacks by rival  factions

that led to two murders.

2. Fifteen  persons  were  arraigned   before  the  trial

court  for the offences under Section 302, 307, 307 read with

149, 148 and 341, IPC.   The trial court  convicted only  eleven

among them and  acquitted  two  accused.   The other  two

accused died during the trial.   The convicted  persons  were

sentenced  under Section 302, IPC, to life imprisonment and

varying periods of  imprisonment  under other offences;  fine

with  default  stipulation  was  also  imposed.    All  the  eleven

convicted persons filed appeal  before the High Court.    The

High Court affirmed  the conviction and sentence passed by the

trial  court.   All  these  eleven  convicted  persons  preferred

special  leave  petition  in  which  leave  has  been  granted.

During   the  pendency  of  the  appeal,  one  more  convicted

person has died.

3. Chinthalajuturu   in  Vemula  Mandal  of  Cuddapah

District (Andhra Pradesh) is a faction-ridden village.  One  of

these factions is led  by  Kakarla Gangi Reddy  (victim group)

that supports Congress Party.   The leader of the other faction

is   Annareddysamba  Siva  Reddy  (accused  group)  which

supports Telugu Desam Party.   There were instances of attack

between  these  groups  earlier  also.   One  year  prior  to  the

present  incident, one Yeddula Gangi Reddy of the  Congress

Party and belonging to victim group  was murdered.  About a

fortnight prior to the incident, one  Sirigireddy Prathapa Reddy

of  accused  group  was  murdered.     For  the  murder  of

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Sirigireddy  Prathapa  Reddy,  the  members  of   victim  group

figured  as  accused.   It is for this reason that A.M. Annareddy

Siva Reddy started  residing at  Pulivendula.

4. On May 16, 1996  at  about 9.00 A.M. Annareddy

Siva Reddy (deceased hereinafter referred to as D-1), Yerram

Reddy  Pulla Reddy (deceased and hereinafter referred to as

D-2), Annareddy  Bala Gangi Reddy (PW-1) - brother of D-1,

Annareddy Jagan Mohan Reddy (PW-3) - nephew of D-1 and

one  Ramiredy Narayana Reddy  left   Pulivendula  in a jeep

driven by  Ala Krishnaiah (PW-2).  D-1 sat in the front seat by

the  side   of  driver  (PW-2).    PW-1  and  D-2   occupied  the

second row seat behind D-1 and PW-2.

PW-3 and Ramireddy Narayana Reddy  occupied the rear seat

of the jeep.

5. When the  said jeep reached near   Gollalaguduru

Harijanawada  village,  D-1 saw a jeep with  the  members  of

accused  group   seated  therein,  coming  from  the  opposite

direction.   Seeing this, D-1 asked PW-2 to reverse the jeep.

PW-2 had hardly reversed the jeep that  Annareddi  Sambasiva

Reddy (A-1), Annareddi Ramakrishna Reddy (A-2),  Annareddi

Ramasura  Reddy   (A-3),  Yeddula  Eswara  Reddy   (A-4),

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Yeddula Gangi  Reddy (A-5),  Annareddi Gangi Reddy (A-6),

Palle  Venkatarami  Reddy  (A-7),  Annareddi  Srinivasul  Reddy

(A-8),  Dasareddigari  Chalama  Reddy  (A-9),   Dasareddigari

Lakshmi  Reddy (A-10),  Singam  Pedda Pulla  Reddy (A-11),

Singam  Chinna  Gangi  Reddy  (A-12),  Kakarla  Subbi  Reddy

(A-13),  Annareddi  Lakshmi  Reddy  (A-14)  and   Annareddi

Ramana  Reddy  (A-15)  came  out  of  their  vehicle   and

surrounded the jeep of D-1.   A-1, A-2, A-10 and  A-13 were

armed with axes  while the others were armed with Eathapululu

(sickle).   A-1 to A-9 hacked D-1.  A-3, A-6, A-7 and A-10 to

A-13 hacked D-2.    D-1 and D-2 died on the spot.  A-1, A-3,

A-6, A-7 and A-10 to A-13 inflicted grievous injuries on PW-1

whereas  A-7,  A-9,  A-10  and  A-14  inflicted  injuries  on

Annareddy  Jagan  Mohan  Reddy  (PW-3)  and  Ramireddy

Narayana Reddy.    A-14 attacked PW-3 and A-15 attacked

PW-2.

6. PW-1  was  taken  to   Pulivendula  Government

Hospital  by   few  residents  of Chinthalajuturu village.  Dr. T.V.

Raghavendra  Reddy  (PW-10),  Civil  Assistant  Surgeon

attended on  him and gave PW-1  the necessary medical aid.

K.  Danam  (PW-11)  -  Assistant  Sub  Inspector  of  Police,

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Vemula Police Station  while he was   at Pulivendula came to

know  of  the  incident  at  about  1.50  P.M.   He  went  to  the

Pulivendula Government Hospital   and found that  PW-1 was

undergoing  treatment.  After  being satisfied  that PW-1 was

conscious  and able to give his statement, in the presence of

the doctor     (PW-10), he  recorded  statement (Ex.P-1) of PW-

1.   PW-11 then went  to Vemula Police Station  and registered

the case (Crime No.26/1996) and forwarded  a copy of the first

information  report  to  the  concerned  magistrate  immediately

thereafter.

7. A.  Venkateswara  Reddy  (PW-12)  -  Inspector  of

Police,  took  up  investigation  and  conducted  further

investigation on May 17, 1996.  He conducted inquest  of the

dead  bodies   and  sent  them  to   Government  Hospital,

Pulivendula for  post-mortem examination.   PW-10 conducted

autopsy of the dead bodies  and issued post-mortem reports

Ex.P.18 and Ex.P.19.     PW-10 also examined the injured PW-

2 and PW-3 and issued injury certificates Ex.P.13 and Ex.P.16.

8. In order to complete the narration  of facts, it may

be noticed here that  during the course of investigation,  A-14

and  A-15  pleaded  alibi.   The  Investigating  Officer  took  all

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necessary  steps towards investigation and after collecting the

necessary  evidence  and on completion of investigation,  he

filed  chargesheet  against  A-1  to  A-13  before  the  Court  of

Judicial Magistrate 1st Class, Pulivendula who committed them

to court of sessions for trial.   The accused were charged  for

the following offences:

“(i) A-1 to A-13 for rioting under Section 148 IPC;

(ii) A-1 to A-13 for  wrongful restraint under Section 341 IPC;

(iii) A-1 to A-13 for  voluntarily causing  grievous hurt to PW-1  and PW-3 under Section 326 IPC;

(iv) A-1 to A-5 and A-6 to A-9 under Section 302 IPC  for the murder of D-1;

(v) A-3, A-6 to A-8 and A-10 to A-13 under Section 302 IPC for the murder of D-2;

(vi) A-1, A-3, A-6 to A-8, A-10, A-12 and A-13 under Section 307 IPC for attempt to murder PW-1;

(vii) A-7, A-9 and A-10  under Section 307 IPC for attempt to murder Ramireddi Narayana Reddy;

(viii) A-2, A-4, A-5 and  A-11 under Section 307 read with Section 149 IPC for attempt  to murder PW-1.”

9. Since  A-14  and  A-15  were  deleted  from  the

chargesheet by the  Investigating Officer, a  private complaint

came to be filed by PW-1 before  the Judicial  Magistrate 1st

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Class,  Pulivendula.    The  concerned  magistrate   also

committed A-14 and A-15 to the court of sessions for trial.

10.          The prosecution examined  13 witnesses  including

three  eye-witnesses   (PW-1  to  PW-3)  and  marked

documents  Ex.P-1  to  Ex.P-28  and   exhibited  M.O.  1  to

M.O.14.

11.          In their statement under Section 313, Cr.P.C., the

accused denied their  role in the crime.

12. The III   Additional Sessions Judge, Cuddapah, on

consideration of  both oral and documentary evidence vide his

judgment  dated April 5, 2004, found A-1, A-2, A-4 to A-8  guilty

of the offence under section 302 IPC;  they were sentenced  to

undergo imprisonment  for life and    a fine of Rs.1,000/- with

default stipulation.    A-6, A-7, A-10 to A-13  were found guilty

of  the  offence  under  section  302  IPC  and  sentenced   to

undergo  imprisonment  for  life  and  a  fine  of  Rs.1,000/-  with

default stipulation.    A-6, A-7, A-10 to A-13  were found  guilty

of the offence  under section 307 IPC as well and sentenced  to

undergo imprisonment for five years and a fine of  Rs.1,000/-

with default stipulation.    A-2, A-4 and A-5 were found  guilty

of the offence under section 307  read with section 149 IPC

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and sentenced   to  undergo  rigorous  imprisonment   for  five

years  and a fine f Rs.1,000/- with default stipulation.    A-1, A-

2, A-4 to A-8, A-10 to A-13 were  found guilty  of the offence

under section 148 IPC and sentenced to undergo imprisonment

for  one year  and a fine of  Rs.500/-  with  default  stipulation.

The  sentence  passed  against  each  of  the  accused   was

ordered to run concurrently.    The trial court acquitted  A-14

and A-15 of all the charges.  A-3 and  A-9 died  during the trial

and, thus,  the case abated  as against them.  

13.       Aggrieved against their conviction and sentence, A-1,

A-2, A-4 to A-8 and A-10 to A-13 filed appeal before  the High

Court.   The State  preferred separate appeal against  that very

judgment  in  so  far  as  acquittal  of  A-14  and  A-15  was

concerned.  

14. These two appeals were  heard together by the   

Division  Bench  of  the  High  Court  and   were  dismissed  on

March 9, 2006.

15. The  present  appeal  now  subsists   on  behalf  of

A-1, A-2, A-4, A-6 to A-8 and A-10 to A-13  since A-5 has died

during the pendency of appeal.

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16. Dr.T.V.  Raghavendra  Reddy  (PW-10),  Civil

Surgeon, Government  Hospital,  Pulivendla  conducted post-

mortem  examination on the body of  Annareddy Siva Reddy

(D-1) on May 17, 1996. In the post-mortem report (Ex.P-18), he

recorded the following external injuries on the body of D-1:

“1. An incised wound in the  middle  of  right  upper  arm measuring  about  7 cm x 3 cm x 4 cm deep.  Muscles cut and fracture of bone present.

2. An incised wound 5 cm above wound No.1 measuring about 7 cm x 3 cm x 2 cm  deep.  Muscles cut.

3. An incised wound from the lateral part of the left eye below the ear to the root of neck measuring about 20 cm x 3 cm x 5 cm deep.   Muscles cut and fracture of mandible and spinal process.

4. An   incised  wound  1½  cm  above  wound  No.3 measuring about 15 cm  x 1½  cm x 4 cm deep.

5. An incised   wound  7 cm x  1 cm x bone deep 1 cm above wound No.4.

6. An incised wound 2 cm above wound No.5 measuring about  5 cm x  1½  cm x  bone deep fracture  of occipital bone present.

7. An  incised  wound  in  the  left  occipital  area  measuring about  8 cm x  5 cm x  bone deep.   Flap is hanging with bit  of skin .

8. An incised  wound on the  left parietal  area measuring about  6  cm  x  1½  cm x bone  deep  and  fracture  of parietal bone present.

9. An incised  wound in the  centre of the scalp measuring about 6 cm  x 1½  cm x bone deep.  Fracture of the left and right parietal bones seen.

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10. An incised  wound on the right parietal area measuring about 5 cms  x 1 cm x bone deep and fracture  of right parietal bone seen.  

Head and neck : Brain injured and neck vessels cut.”  

The aforesaid  injuries on the body of  D-1 were found ante-

mortem in nature.   In the opinion of PW-10, D-1 died due to

haemorrhage, shock and injury to neck vessels.  

17. On  the  same  day  (May  17,  1996)  at  1.30  P.M.,

PW-10  conducted  post-mortem  examination  on  the  body  of

D-2.   In  the  post-mortem report  (Ex.P-19),  he  recorded  the

following injuries on the body of     D-2:

“1. Incised   wound  on  the  left  leg  at  the  knee  joint measuring about  15 cms x  8 cm x 8 cm  deep.   Fracture of patella bone seen.

2. Incised wound 6 cms below wound  No.1. measuring about 10 cm  x 3 cm  x  4 cms deep.   Fracture of Tibia seen.   

3. Incised   wound  in  centre  of  chest  lower  part  of sternum measuring  about  6  cm  x  2  cm  x  fracture   of sternum and plura is injured.

4. An incised wound  between left thumb and the index finger  measuring about 3½  cm x 1½  cm x 1½  cm deep.

5. An incised wound on the  nape of the neck measuring about  5 cm x 1½  cm x  1½  cm deep.  

6. An incised wound on the left parietal area measuring about  5 cm  x 1½  cm x  scalp deep.

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7.        An incised  wound on the  posterior  part   of  left parietal  area measuring about  5 cm  x 1½  cm x  scalp deep.”  

The  aforesaid  injuries   were  found  ante-mortem  in  nature.

According  to  PW-10,  D-2  died  of  haemorrhage,  shock  and

injury to vital organs.

18. The evidence of PW-10 and post-mortem  reports

(Ex.P-18  and   Ex.P-19)  leave  no  manner  of  doubt  that  the

death of D-1 and D-2  was homicidal.

19. PW-1  is the injured witness.  The following injuries

were inflicted on him:

“1. An  incised wound in front of left parietal area  and front bone measuring  about 7 cm  x 1½  cm x  bone deep. (Depressed fracture of the frontal bone as per the specialist opinion).

2. An incised wound on the left  hand above the wrist measuring about 4 cm x  1 cm  x muscles deep.   Fracture of Ulna bone (As per the specialist opinion).

3. An incised wound on the posterior   part  of  the  left parietal area measuring about 6 cm x  1 cm  x  bone deep, and cut of the bone.  

4. An incised  wound by the side  of wound No.3, 2 cm apart measuring about 3 cm x ½  cm x scalp deep.

5. An incised wound on the left hand above wound No.2 measuring  about 3 cm x 1 cm x muscle deep.

6. An incised wound on the right wrist measuring  about 1½  cm  x ½ cm skin deep.   

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7. An incised wound  on the anterior part of Right parietal bone  measuring about 2 cm  x ¼  cm x skin deep.

8. An  incised  wound   on  the  anterior  part  of  the  left parietal  bone measuring about  3½ cm x  ¼  cm x  Skin deep.”    

20. K. Danam (PW-11),   was  posted as Assistant Sub

Inspector  of  Police at  Vemula Police Station at  the  relevant

time.   Having come to know of the incident  that two persons

belonging  to   the  Congress  Party  were  done  to  death  at

Gollalaguduru   Harijanwada  by  the  Telugu  Desam  Party

faction,  PW-11  immediately  rushed  to  the  Government

Hospital,  Pulivendula.   He found  that  PW-1 was undergoing

treatment in the  emergency ward.    As PW-1  was in a fit

condition  to  give statement,  PW-11 recorded   his  statement

marked  Ex.P-1.    PW-10 also made an endorsement  on Ex.P-

1  that  PW-1  was  in  a  fit  and  proper  condition  to  give  a

statement.    Based on  Ex.P-1, first information report came  to

be  registered.

21. Mr.  P.P. Rao,  learned senior counsel   appearing

for the appellants vehemently  contended that first information

report was a concocted  document  and that makes the entire

prosecution case doubtful.   He would submit  that  PW-1 was

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seriously injured  and not in a position  to give any statement.

In this regard, he referred to the evidence of Dr. A. Sudhakar

Reddy  (PW-7),  Assistant  Professor  of  Neuro  Surgery   at

S.V.R.R.G.G.  Hospital,  Tirupati   who  treated  PW-1.   The

learned senior counsel  also submitted that at the time of the

recording  of  statement  (Ex.P-1),  the  group  leader  Kakarla

Gangj  Reddy had already arrived   and he  was in  the  room

where PW-1 was  being treated.    It is the contention of Mr.

P.P.  Rao   that  Kakarla  Gangi  Reddy  was  instrumental  in

implicating  the accused  falsely who belonged  to rival group.

It was also contended that in the first information report except

naming all  the accused and making omnibus allegations,  no

specific overt acts of the  accused were mentioned.  

22. We  are  unable  to  accept  the  submission  of  the

learned senior counsel that  F.I.R. is  a concocted  document.

It  is true that    injury no.1  received by PW-1 in front  of left

parietal area and the depressed fracture  of frontal bone was

extremely  grave  and  serious  but  on  the  face  of  clear,

categorical and unambiguous  endorsement made by Dr.T.V.

Raghavendra Reddy (PW-10) that PW-1 was in a fit and proper

condition to give a statement at that time   and the fact  that

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PW-11  recorded the statement  of  PW-1 in the presence  of

PW-10,  there  cannot  be   even  slightest   doubt  about  the

authenticity  of Ex.P-1 and we find no justifiable reason to even

remotely  conclude  that  Ex.P-1   is  not  the  statement  given

by PW-1.   The contention that PW-11 is a chance witness, is

noted to be rejected.     Pertinently,  the F.I.R. was forwarded to

the Magistrate without any delay.   As a matter of fact, F.I.R.

reached the Magistrate  at 10.45 P.M. on May 16, 1996 itself.

As to whether PW-1  was in   a  fit and proper condition to give

statement or not, could have been assessed  by PW-10 under

whose treatment PW-1 was at that time and none else.  The

evidence of PW-7 referred to by the learned senior counsel in

no  way   creates     any  doubt  about  the   correctness  of

statement of PW-10 as PW-7 has not stated  in definite terms

that PW-1 was  not in a fit state of condition to give statement

at that time.  The trial court as well as the High Court  did not

accept  the contention made on behalf   of   the accused that

Ex.P-1 was  fabricated.   We agree with this view  of the trial

court  and the High Court.

23. PW-1  in his testimony before the court has given

account of the incident.   He testified that  A-1, A-2, A-10 and

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A-12 were armed with  axes and remaining  eleven accused

were armed with  eathapululu (sickle).  A-1 to A-9 hacked D-1

with their weapons.  A-3, A-6, A-7, A-10 to A-13 hacked D-2

with their respective weapons.    A-1, A-3, A-6, A-7  and A-10 to

A-13 hacked him with their respective weapons.  A-7, A-9, A-10

and  A-14  hacked  PW-3  and   R.  Narayanareddy  with  their

respective weapons.   D-1 and D-2 died on the spot.   In his

cross-examination, he admitted that he did not state  in Ex.P-1

that they (PW-1 and D-1) obtained  loan of Rs.6,000/- from the

bank.    He also admitted in Ex.P-1  that he did not state that

A-1,  A-2,  A-10  and  A-12  were  armed  with  axes  and  the

remaining accused with eathapululu (sickle).  He also admitted

that he did not state  in Ex.P-1 that A-1 to A-9 hacked  D-1; A-

3, A-6, A-10 to A-13 hacked D-2 and that he was attacked  by

A-1, A-3, A-6, A-7, A-10 to A-13 and that A-7, A-9, A-10 and

A-14  attacked  PW-3  and   R.  Narayanareddy.    These

omissions  do not  affect the credibility  of his evidence since at

the time of recording of Ex.P-1, PW-1 was in injured condition.

It  was not expected of him to give  a detailed version in that

condition, more so  when so many accused were involved.  But

despite that, in Ex.P-1, he has given names of all the accused

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persons.  24. The testimony of PW-1 is  corroborated

by medical  evidence.    The factum of  PW-1 and D-1 having

gone to the Bank at Pulivendula and that  they obtained a  loan

of  Rs.6,000/-  from  Alavalapadu  Grameena  Bank  is  also

established by the evidence of R.B.S.K. Satyamurthy (PW-5)

and  M. Venkata Subbareddy (PW-6).   PW-5 and PW-6  were

Branch  Manager  and  Clerk-cum-Cashier  respectively  in  the

Bank at the relevant time.  The  evidence of driver of the jeep

A. Krishnaiah (PW-2), although  declared hostile as he refused

to recognize the assailants, corroborates  the evidence  of PW-

1 to the  extent  that they had gone to the Bank at Pulivendula

and that they were returning  from  that place on May 16, 1996

at 11.00 A.M.

25. A. Jaganmohan Reddy (PW-3) is yet another  eye-

witness.   He  also got injured in the incident.    He has  given

detailed version  of the incident.  He has testified that    A-1 to

A-9   hacked  D-1 and  A-3, A-6, A-7, and  A-10 to A-13 hacked

D-2 with their weapons.   He also testified that A-3, A-6, A-7

and A-10 to A-13 hacked PW-1  causing various  injuries to him

and A-7 and  A-10 hacked him on his left  forearm  and left

thigh.   PW-10 examined PW-3 at about  3.45 P.M. on May 16,

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1996 and  found two incised injuries on the left hand and left

thigh.    The injury report pertaining to him  is Ex.P-16.

26.          PW-1 and PW-3 are  injured witnesses.   As a

matter of fact, PW-1 suffered a grave  injury  on his head.  Two

of their  family members died.    Why should he and PW-3 let

real culprits go scot-free ?    It is most unlikely  that they would

have  spared  the  actual  assailants   and falsely   implicated

these  appellants  merely   because   there  is  political   rivalry

between them.   The omissions and discrepancies pointed out

in the evidence of PW-1 and PW-3 are only minor and do not

shake their trustworthiness.    It is true that neither PW-1 nor

PW-3 assigned specific injuries or specific overt acts attributed

to  the accused  individually but  looking to  the  nature   of  the

incident where large number of  persons  attacked D-1,  D-2

PW-1, PW-2 and PW-3,  it would  not have  been      possible

for  PW-1 or  PW-3 to  attribute  specific  injury  individually   to

each  accused.    How could it be  possible  for any person to

recount  with meticulous  exactitude  the  various  individual

acts  done by each  assailant  ?    Had they stated  so,  their

testimony would have been criticized  as  highly improbable

and unnatural.   The testimony of eye-witnesses  carries  with it

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the  criticism of being  tutored   if they give graphic details  of

the  incident  and  their  evidence   would  be  assailed   as

unspecific,  vague  and  general   if  they  fail  to  speak  with

precision.  The golden principle is not to weigh such testimony

in golden scales but to view it from  the cogent standards  that

lend  assurance    about  its  trustfulness.    In  our  view,  the

testimony of  PW-1 and PW-3  is of  credence  and does not

deserve to be discarded on the ground of  non-mentioning of

specific overt acts.   The trial court and the High Court have

given   cogent  and  convincing   reasons  for  accepting  the

evidence  of  PW-1 and PW-3.  We concur.   Merely because

A-14 and A-15 got acquittal, in our view, credibility of deposition

of PW-1 and PW-3 is not affected.  

27. Mr.  P.P.  Rao,  learned  senior  counsel   submitted

that the conviction and sentence  passed against the accused-

appellants for the offence under Section 302, IPC, simpliciter is

not  legally sustainable   in  the  absence  of  any specific  overt

acts attributed to each of the accused.    The learned senior

counsel  would  submit  that  the  accused  who  inflicted   fatal

injury/injuries  resulting   in    the   death  with  the  requisite

intention or knowledge  alone are  liable  for the offence under

18

Section 302, IPC simpliciter.    The  learned  senior  counsel

contended that  as there is   no  conviction  for the offence

under Section  302 read with Section 149, IPC, the question

whether such conviction is maintainable or not  without  such

charge does  not arise in the present case.   Placing reliance

upon a decision of this Court  in  Pandurang,Tukia and Bhillia

vs.  The State of  Hyderabad 1,  learned senior counsel would

submit  that  in  absence  of specific charge under Section 149,

the accused persons cannot be convicted under  Section 302

read with Section 149 as  Section 149 creates a distinct and

separate offence.   The learned senior counsel   also  relied

upon  Suraj Pal vs.  The State of Uttar Pradesh2,  Nayan Ullah

and  Ors.  Vs.   Emperor3,   Tahsildar  Singh  vs.   State4 and

Nanak Chand  vs. The State of Punjab5.

28. Learned  senior  counsel  for  the  appellants  also

contended  that in the instant case there is no charge under

Section 149, IPC at all nor any finding of the courts below that

the accused had the common object   to commit  the offence

under Section 302, IPC.   He submitted that barring  one injury 1 (1955) 1 SCR 1083 2 (1955) 1 SCR 1332 3 A.I.R. 1925 Calcutta 903  4 A.I.R. 1958 Allahabad  255 5 (1955) 1 SCR 1201

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in the case of D-1 and two injuries  in the case of  D-2, none of

the  other  injuries  was  found  to  be  fatal  and,  therefore,  the

common object at the most  could be  only to cause    some

injury but  not  to cause the fatal injuries.   In support of this

contention  of  his,  the  learned  senior  counsel  relied  upon

Shambhu Nath Singh  and Ors. Vs.  State of  Bihar6;  Bhajan

Singh And Ors. Vs.  The State of Punjab7and  Ram Anjore And

Ors. Vs.  State of Uttar Pradesh8 .

29. Mr.D.  Rama Krishna Reddy,  learned  counsel  for

the State  in  his reply submitted  that in the complaint (Ex.P-1),

the  names of  all  the  accused  persons,  weapons  wielded by

them and their participation have been clearly mentioned.   In

their deposition, PW-1  and PW-3 have also stated  which of

the accused attacked D-1, D-2 and injured PW-1, PW-2 and

PW-3 and, therefore,   non-attributing  the injuries specifically

to  the   individual  accused  does  not   materially   affect  the

prosecution   case.    He   would  urge  that  the  accused-

appellants have been convicted for the offences under Sections

148 and 307   read with Section 149 and Section  302 IPC

6 AIR 1960 SC 725 7 (1978) 4 SCC 77 8 (1975) 3 SCC 379

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simpliciter which would show that the accused  formed unlawful

assembly.    The  learned  counsel   invited  our  attention  to

Section  464 of the Code of Criminal Procedure and submitted

that   in  the  present  case,  neither  in  the  grounds  of  appeal

before  this  Court  nor  before  the  courts  below the   accused

have  pleaded  prejudice  or  failure  of  justice  due  to   non-

mentioning of Section 149 IPC  with Section  302 IPC.   He

relied  upon:  Willie (William) Slaney Vs.  The State of M.P9. ;

Bhoor Singh And Anr.   Vs.  State of Punjab10;   Karnam Ram

Narsaiah & Ors.  Vs.   State of  A.P.11 and  Dumpala Chandra

Reddy Vs. Nimakayala Balireddy And Ors.12 and Malhu Yadav

And  Ors. Vs.  State of Bihar 13 and Umesh Singh And Anr. Vs.

State of Bihar,14  

30. In Suraj Pal,  this Court   held:

“…Whether  or  not   Section  149  IPC  creates   a  distinct offence (as regards which there has been conflict  of views in the High Courts), there can be  no doubt that it creates  a distinct head of criminal liability which has come to be known as “constructive liability”—a convenient phrase not used in the Indian Penal Code.  There can, therefore,  be no doubt that the direct individual liability of a person can only be fixed upon him with reference  to a specific charge    in respect  of the  particular  offence.    Such  a   case  is  not  covered  by

9 (1955) 2 SCR 1140 10 (1974)  4 SCC 754 11 (2005)10 SCC 629 12 (2008) 8 SCC 339 13 (2002) 5 SCC 724 14 (2000) 6 SCC 89

21

Sections 236 and 237 of the Criminal Procedure  Code.  The framing   of a  specific  and distinct charge in respect  of every  distinct  head  of  criminal  liability  constituting  an offence,  is  the  foundation  for   a  conviction  and  sentence therefore.   The  absence,  therefore,  of  specific  charges against the  appellant under Sections 307  and 302 IPC in respect  of which he has been sentenced to transportation for life and to death respectively, is a very serious lacuna in the  proceedings insofar as it concerns him.   The question then which arises for  consideration  is  whether  or  not  this lacuna has prejudiced him   his trial.”

31.          In Pandurang,  it was observed:

“……Several   persons  can simultaneously attack  a man and each can have  the same intention, namely the intention to  kill, and each can individually inflict a separate fatal blow and yet none would have the common intention  required by the section because there was no prior meeting  of minds to form a pre-arranged plan.   In  a case like that, each would be individually liable for whatever injury he caused but none could  be vicariously   convicted for  the act of  any of  the others;  and  if  the  prosecution  cannot   prove  that  his separate  blow was a fatal one he cannot be convicted of the murder….”  

32.       In the case of Nanak Chand, this Court stated:

“…There  is   a  clear  distinction  between the  provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused .   The principal element in section 34 of the Indian Penal Code is the common intention to commit a  crime.   In furtherance  of the common intention several acts may be done  by several  persons resulting in the commission of that crime.    In such a situation section 34 provides  that each one of them would  be liable for that crime in the same  manner as if all the acts resulting in that crime had been done  by him alone.   There is no question of  common  intention  in  section  149  of  the  Indian  Penal Code.  An offence may be committed by  a member  of an unlawful assembly  and the other members will be liable for

22

that  offence  although  there  was  no  common   intention between  that  person  and  other  members  of  the  unlawful assembly  to  commit  that  offence provided the conditions laid down in the section are fulfilled.    Thus if the offence committed  by that person is in prosecution of the common object of the unlawful assembly  or such as the  members  of that  assembly  knew  to  be  likely   to  be  committed  in prosecution  of  the  common  object,  every  member  of  the unlawful  assembly    would  be  guilty   of  that  offence, although there may have  been no common intention and no participation  by  the  other  members   in  the  actual commission of   that  offence…………………………………… ………………………..      After an examination of the case referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta  High Court   is  the correct view namely,  that  a  person charged with  an offence read with  section  149  cannot  be  convicted  of  the  substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure.”   

33. In Umesh Singh while dealing with  Section 149

IPC,  this Court held:

“ Vicarious liability, we may state, as rightly contended for the State by Shri B.B. Singh relying upon the decisions of this  Court  in  Shamshul  Kanwar v.  State  of  U.P.,(1995)  4 SCC 430, and Bhajan Singh v. State of U.P., (1974) 4 SCC 568, extends to members of the unlawful assembly only in respect of acts done in pursuance of the common object of the unlawful assembly or such offences as the members of the unlawful assembly are likely to commit in the execution of that common object. An accused whose case falls within the  terms  of  Section 149  IPC  as  aforesaid  cannot  put forward  the  defence  that  he  did  not  with  his  own  hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the  assembly  knew  to  be  likely  to  be  committed  in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined. It is not necessary in all cases  that  all  the  persons  forming  an  unlawful  assembly must do some overt act. Where the accused had assembled

23

together, armed with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is not obliged to prove which specific overt act was done by which of the accused. Indeed the provisions of Section 149 IPC, if properly analysed will make it clear that it takes an accused out of the region of abetment and makes him responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. We may also notice that under this provision, the liability of the other members for the offence committed during the continuance of the occurrence rests  upon  the  fact  whether  the  other  members  knew beforehand that the offence actually committed was likely to be committed  in prosecution  of  the  common object.  Such knowledge can reasonably be intended from the nature of the assembly, arms or behaviour, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. Tested on this  touchstone,  we may safely say that  in  the present  case  when  the  appellants  were  members  of  an unlawful  assembly which was armed with  lathis  and guns and a declaration had been made that in the event there is any  resistance  to  the  taking  away of  the  paddy  which  is stated to have been the original object, they were willing to take the life of  the deceased and take away the paddy. If that is the position, it is futile to contend for the appellants that their conviction is in any way bad.”

34. Section  464  of  Code  of  Criminal  Procedure reads:

“464.  Effect   of omission to  frame,  or absence of,  or error in, charge.—(1) No finding sentence or order by a Court  of  competent  jurisdiction  shall  be  deemed  invalid merely on the ground  that no  charge was framed or on the ground  of any  error, omission or irregularity in the charge including  any misjoinder of charge, unless, in the opinion of the Court  of   appeal,  confirmation or revision,  a failure of justice has in fact been occasioned thereby. (2) If  the Court of  appeal,  confirmation or revision is of

opinion  that  a  failure   of  justice  has  in  fact  been occasioned, it may – (a) in the case of an omission to frame a charge,

order  that a charge  be framed and that the

24

trial  be  recommended  from  the  point immediately after the framing of the charge.

(b) in the case of an error, omission or irregularity in the charge, direct  a new trial to be had upon a charge framed in whatever manner it   thinks fit.

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.”

35.           We deem it appropriate at this stage to

refer to the charges  framed against the accused

by the trial court:  

“Charge No.1.  That you  A-1 to A-13 on or about 16-5-1996 in  the  morning   near  Gollalaguduru  Harijanawada   were members of an unlawful assembly and did,  in prosecution of the common object of such assembly viz., in  murdering  the deceased,  1  and  2  commit  the  offence  of  rioting  with  a deadly weapon to wit  axes and Eethapululu  and that  that you   thereby  committed  an  offence  punishable  under Section 148 I.P.C. and within my cognizance. Charge No.2.  That you A-1 to A-13 on or about the same day,  time,  place  and  during  the  course  of  the  same transaction as mentioned in charge No.1 above, wrongfully restraint LWs-1 to 4 Annareddi Bala Gangireddi, Annareddi Jagan  Mohanreddi,  Ramireddi  Narayanareddi  and  Ala Krishnaiah  and  later  the  deceased   1  and  2  thereby committed an offence punishable under Section 341 I.P.C. and within my cognizance. Charge No.3.   That you A-1 to A-13 on or  about the same day,  time,  place  and  during  the  course  of  the  same transaction as mentioned in charge  No.1 above, voluntarily caused  grievous  hurt  to  LWs-1  to  4  Annareddi  Bala Gangireddi,  Annareddi  Jagan  Mohanreddi,  Ramireddi Narayanareddi  and  Ali  Krishnaiah  by  means  of  axes  and Eethapululu  and  that  you  thereby  committed  an  offence punishable  under  Section  326  I.P.C.  and  within  my cognizance.

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Charge No.4.  That you A-1 to A-5 and A-6 to A-9, on or about the same day, time, place and during  the course of the same transaction as mentioned in charge No.1 above, did  commit  murder  by  intentionally  causing  the  death  of Annareddi   Sivaraeddi  (deceased  No.1)  and  that  you thereby committed an offence punishable    under  Section 302 I.P.C. and within my  cognizance. Charge No.5.   That you A-3, A-6 to A-8, A-10 to A-13 on or about the same day, time, place and during the course of the  same  transaction  as  mentioned  in  the  charge  No.1 above, did commit murder by intentionally causing the death of  Yerramireddi  Pullareddi  (deceased No.2)  and  that  you thereby committed an offence punishable under Section 302 I.P.C. and within my cognizance. Charge No.6.   That you A-1, A-3, A-6 to A-8, A-10,  A-12 and A-13  on or about the same day, time, place and during the course of  the same transaction as mentioned in charge No.1 above, did an act to wit to murder with such intention and under such circumstances, that if  by that act you had caused the  death  of  Annareddi  Bala  Gangi  Reddi  (LW-1) you would have been guilty of murder and that you  caused hurt to the said  Annareddi Bala Gangireddi (LW-1) by the said  act  and  that  you  thereby  committed  an  offence punishable  under  Section  307  I.P.C.  and  within  my cognizance. Charge No.7.     That you A-7, A-9 and A-10 on or about the same day  time  and place  during the  course  of  the  same transaction as mentioned in  charge No.1 above, did an act to wit attempt to murder  with such  intention and under such circumstances, that if by that act you had caused the death of Ramireddi Narayana Reddi, you would have been guilt of murder and that  you caused hurt    to  the said Ramireddi Narayanareddi LW-3 by the said  act, and that you thereby committed an offence punishable under Section 307 I.P.C. and within my cognizance. Charge No.8.     That you A-2, A-4,  A-5 and A-11  on or about the same day, time, place and during the course of the same transaction as mentioned in charge No.1 above, were members of an unlawful assembly and in prosecution of  the  common  object  of  which  viz.,  in  attacking  the prosecution witnesses some of the members  i.e., A-1, A-3, A-6 to A-10 and A-12 and  A-13 caused the death of  the deceased  attempt to murder the witnesses and that you are thereby under section 149 I.P.C. guilty of causing the said offence,  an  offence  punishable   under  Section  307 I.P.C. and within my cognizance.”

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36. Section 149, IPC creates constructive  liability i.e. a

person  who is  a  member  of  an  unlawful  assembly  is  made

guilty  of  the offence  committed  by  another   member of  the

same assembly in the circumstances mentioned in the Section,

although he may have had no intention  to commit that offence

and had done no overt act except his presence in the assembly

and sharing the common object of that assembly.

37. Some  divergence  between  two  decisions  of  this

Court  in  Nanak Chand   and  Suraj Pal seems to have  been

noticed  and  matter was referred to the Constitution Bench in

Willie (William) Slaney.   Although Willie (William) Slaney was

not a case under Section 149 of the  Indian Penal Code and

the charge against the accused therein was  under Section 302

read  with  Section  34  IPC  but  the  Constitution  Bench

considered  the question whether the omission to  frame an

alternative  charge under Section 302 IPC is an illegality that

cuts  at  the root   of  conviction.    Vivian Bose,  J.  considered

Sections 221 to 223, 225, 226, 227, 228, 232, 233, 234, 235,

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236, 237, 238, 535 and 537 of the Code of Criminal Procedure,

1898 and observed:    

“29.  We do not agree with either view. In our opinion, the cases  contemplated  by  Section  237  are  just  as  much  a departure  from  Section  233  as  are  those  envisaged  in Sections 225,  226,  227,  228,  535 and 537. Sections 236, 237  and  238  deal  with  joinder  of  charges  and  so  does Section  233.  The  first  condition  is  that  there  shall  be  a separate  charge for  each  offence  and  the  second  is  that each charge must be tried separately except in the cases mentioned  in  Sections  234,  235  and  236.  It  is  to  be observed that the exceptions are confined to the rule about joinder of charges and that no exception is made to that part of the rule that requires separate charges for each offence. It will be seen that though Sections 234, 235 and 236 are expressly mentioned, Section 237 is not referred to, nor is Section 238. Therefore, so far as Section 233 is concerned, there can be no doubt that it requires a separate charge for each  offence and  does  not  envisage a  situation  in  which there  is  either  no  charge  at  all  or  where,  there  being  a charge  for  some  other  offence  of  which  the  accused  is acquitted, he can be convicted instead of something else for which he was not charged. We are unable to hold that the Code regards Sections 237 and 238 as part of the normal procedure.”

38. Vivian Bose, J. went on to observe :

“44. In adjudging the question of prejudice the fact that the absence of  a charge, or a substantial  mistake in it,  is a serious lacuna will naturally operate to the benefit  of  the accused  and  if  there  is  any  reasonable  and  substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case,  he is as much entitled to  the benefit  of  it  here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is  not  disclosed  the  conviction  must  stand;  also  it  will always be  material  to  consider  whether  objection  to  the nature of the charge, or a total want of one, was taken at an  early  stage.  If  it  was not,  and  particularly  where  the accused is defended by counsel (Atta Mohammad v. King- Emperor)  {(1929) LR 57 IA 71,74} it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being  alleged  against  him  and  wanted  no  further particulars,  provided  it  is  always borne in  mind  that  “no

28

serious defect  in the mode of  conducting a criminal  trial can be justified or cured by the consent of the advocate of the accused” (Abdul Rahman v. King-Emperor) {(1926) LR 54 IA 96,104,110}. But these are matters of fact which will be  special  to  each  different  case  and  no  conclusion  on these  questions  of  fact  in  any  one  case  can  ever  be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases “however” alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if there were.”

39. In  his concurring judgment, Chandrasekhara Aiyar,

J.  also  surveyed  the   relevant  provisions  of  the  Code  of

Criminal Procedure, 1898 and held:

“76.  A case of complete absence of a charge is covered by Section 535, whereas an error or omission in a charge is dealt with by Section 537. The consequences seem to be slightly different. Where there is no charge, it is for the court to determine whether there is any failure of justice. But in the latter, where there is mere error or omission in the charge, the court is also bound to have regard to the fact  whether  the  objection  could  and  should  have  been raised at an earlier stage in the proceedings.

77.  The sections referred to indicate that in the generality of cases the omission to frame a charge is not per se fatal. We  are  unable,  therefore,  to  accept  as  sound  the  very broad  proposition  advanced  for  the  appellants  by  Mr Umrigar  that  where  there  is  no  charge,  the  conviction would be illegal,  prejudice or no prejudice.  On the other hand, it is suggested that the wording of Section 535 of the Code of  Criminal  Procedure is sufficiently  wide to cover every case of no charge. It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset.  We are unable to agree that Section 535 of the Code of Criminal Procedure is to be construed in such an unlimited sense. It may be noticed that this group of sections relating to absence of a charge, namely,  Sections  225,  226  and  232  and  the  powers exercisable thereunder, are with reference to a trial which has  already  commenced  or  taken  place.  They  would, therefore,  normally  relate  to  errors  of  omissions  which occur in a trial that  has validly commenced. There is no

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reason to think that Section 535 of the Code of Criminal Procedure is not also to be understood with reference to the same context. There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. In such cases, the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration  the  following  classes  of  cases  may  be mentioned: (a) Where there is no charge at all as required by the Code from start  to finish  — from the Committing Magistrate’s  court  to  the  end  of  the  Sessions  trial;  the Code  contemplates  in  Section  226  the  possibility  of  a committal  without  any charge and it  is not impossible  to conceive of an extreme case where the Sessions trial also proceeds without  any formal  charge which has  to  be  in writing and read out and explained to the accused (Section 210(2) and Section 251(A)(4) and Section 227). The Code requires that there should be a charge and it should be in writing.  A  deliberate  breach  of  this  basic  requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors or jurors, and there was no possible or probable prejudice, (b) Where the conviction  is  for  a  totally  different  offence  from the  one charged and not covered by Sections 236 and 237 of the Code. On a charge for a minor offence, there can be no conviction for a major offence, e.g., grievous hurt or rioting and  murder.  The  omission  to  frame  a  separate  and specific  charge  in  such  cases  will  be  an  incurable irregularity amounting to an illegality.

78.  Sections 34, 114 and 149 of  the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by  a  common  object  or  a  common  intention;  and  the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other  of  the  various  heads  of  criminal  liability  for  the offence cannot be said to be fatal by itself,  and before a conviction  for  the  substantive  offence,  without  a  charge can be set aside, prejudice will have to be made out.  In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.

79. After all, in our considering whether the defect is illegal or  merely  irregular,  we  shall  have  to  take  into  account

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several factors, such as the form and the language of the mandatory provisions,  the  scheme and the  object  to  be achieved, the nature of the violation, etc. Dealing with the question whether a provision in a statute is mandatory or directory,  Lord  Penzance  observed  in  Howard v. Bodington. {(1877)  2  PD  203}  “There  may  be  many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that  material  importance  to  the  subject-matter  to  which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of  which the court would take an opposite view, and would feel that they are matters which  must  be  strictly  obeyed,  otherwise  the  whole proceedings  that  subsequently  follow  must  come  to  an end.”  These  words  can  be  applied  mutatis  mutandis  to cases where there is no charge at all. The gravity of the defect  will  have to be  considered  to  determine  if  it  falls within  one  class  or  the  other.  Is  it  a  mere  unimportant mistake  in  procedure  or  is  it  substantial  and  vital?  The answer will depend largely on the facts and circumstances of each case. If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will  be an  irregularity  and  prejudice  by way of  failure  of justice will have to be established.”

40.          Chandrasekhara Aiyar, J. however, put a note  of

caution to subordinate Courts:

“80.  This  judgment  should  not  be  understood  by  the subordinate  courts  as  sanctioning  a  deliberate disobedience to the mandatory requirements of the Code, or as giving any licence to proceed with trials without an appropriate charge. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases,  it  may be so serious that  by itself  it  would vitiate a trial and render it illegal, prejudice to the accused being  taken  for  granted.  In  the  main,  the  provisions  of Section 535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence without express specification, and where the facts proved by the prosecution constitute separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged.”

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41. Willie (William) Slaney  thus  holds: that where the

charge  is  rolled-up one involving the direct  liability  and the

constructive liability without specifying who are directly liable

and who are sought to be made constructively liable,  in such

a situation, the absence of  a charge under one or other or the

various heads of  criminal liability for the  offence cannot be

said  to  be  fatal  by itself,  and before  a  conviction for  the

substantive  offence,  without  a  charge  can  be  set  aside,

prejudice will have to be made out.   

42. The  aforesaid  legal  position  holds  good  after

enactment of the Code of Criminal Procedure, 1973  as well

in the light  of Sections 215, 216, 218, 221 and 464 contained

therein.    In unmistakable terms, Section 464 specifies   that

a finding or sentence of a court shall not  be set aside merely

on the ground that a charge  was not framed or that charge

was  defective  unless  it  has  occasioned  in  prejudice.

Because of a  mere defect  in language or in the narration or

in form of the charge,  the conviction would not be  rendered

bad if accused has not  been adversely affected thereby.    If

the   ingredients  of  the  section  are   obvious  or  implicit,

conviction in regard thereto can be  sustained irrespective of

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the fact that the said section  has not been  mentioned.   A

fair  trial  to  the accused is  a  sine quo non in  our   criminal

justice system but at the same time procedural  law contained

in the Code of Criminal Procedure is designed to further the

ends of justice and not to frustrate them by  introduction of

hyper-technicalities.    Every case  must  depend on its  own

merits  and  no  straightjacket  formula   can  be  applied;  the

essential  and  important  aspect  to  be  kept  in  mind  is:  has

omission to frame a specific  charge resulted in prejudice to

the accused.    

43. Coming now to the facts of the present case; all

the accused were put to notice under charge no. 1   that on

May  16,  1996  in  the  morning  near  Gollalaguduru

Harijanawada, they were members of an unlawful assembly

armed  with  deadly weapons  and in prosecution of common

object  of  such assembly,  namely, in murdering deceased 1

and 2, they  committed  offence of rioting,  punishable  under

section       148 IPC.   A-1 to A-5  and A-6 to A-9 were noticed

of  the particulars under  charge no.4 that   during the course

of  same  transaction   as  mentioned  in  charge  no.  1,  they

committed murder by intentional   causing death of D-1 and

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thereby committed an offence  punishable under Section 302

IPC.    A-3,  A-6 to A-8,  A-10 to A-13 were put to notice under

charge no.5 that   during the course of the same transaction

as  mentioned  in   charge  no.  1  they  committed  murder  by

intentional  causing death  of D-2 and thereby committed an

offence punishable under Section 302 IPC.

44. A careful reading of  charge no.  4 and   charge no.

5   leaves  no  manner  of   doubt,   since  the  transaction

mentioned in charge no.1 has been made integral  part thereof,

that  all  the  necessary  ingredients  of  Section  149  IPC  are

implicit  therein  except  mentioning  of  Section  149  IPC

specifically.  The particulars stated in charge no. 4 and 5  are

reasonably sufficient to give the appellants  adequate  notice of

Section 149 IPC although not specifically mentioned.  Is  non-

mentioning of Section 149 in charge no. 4 and  charge no. 5 a

fundamental defect of  an incurable illegality that  may warrant

setting aside  the conviction and sentence of the appellants ?

We do not think so.   Non-framing of  a charge under section

149   IPC,   on  the  face  of  the  charges  framed  against  the

appellants  would not vitiate their conviction; more so when the

accused have  failed to show  any prejudice in this regard.  The

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present  case  is  a  case  where  there  is  mere  omission   to

mention Section 149 in charge no. 4 and 5 which at the highest

may be  considered as an irregularity and since  the appellants

have  failed  to  show   any  prejudice,  their  conviction  and

sentence is not at all  affected.   Tenor of cross-examination  of

PW-1 and PW-3 by the defence also rules out any prejudice  to

them.  The offence, in the established facts and circumstances

of the case, under Section 302 read with section 149 IPC is

implicit and  applying the dictum  laid down  by the Constitution

Bench of  this Court in Willie (William) Slaney, the omission to

mention Section 149 IPC specifically in the charge no. 4 and 5

cannot affect  their conviction.   In no way their conviction is

rendered  bad   as  the  appellants  had  assembled  together

armed with axes and  eathapululu(sickle) and were parties  to

the assault on D-1 and D-2 and others.   In  a situation such as

this it was not obligatory upon  the prosecution   to prove which

specific overt act was done by which of the accused.

45. The submission  of  the learned senior  counsel  for

the appellants that since  D-1 and D-2 received only one and

two fatal injuries  respectively, the common object at the most

could be to cause  injuries and  not fatal injuries hardly merits

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acceptance.     The deadly weapons  with which  appellants

were armed, the number  of injuries inflicted on D-1 and D-2,

and the murderous assault  lead to a  certain inference that the

appellants  shared common object of  committing murder  with

other  accused.   That  they were  more than five and formed

unlawful assembly is beyond doubt.    D-1 and D-2 died on the

spot.  PW-1  fortunately  survived  after  surgery  and

hospitalization for more than month.

46. For the above reasons, the appeal must fail and is

dismissed.  

………………….J                     (D.K. Jain)   

………………….J                (R.M. Lodha)  

New Delhi, April 21, 2009

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