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PETITIONER: NETHALA POTHURAJU AND ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT11/09/1991

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) PUNCHHI, M.M.

CITATION:  1991 AIR 2214            1991 SCR  Supl. (1)   4  1992 SCC  (1)  49        JT 1991 (4)   135  1991 SCALE  (2)538

ACT:     Indian Penal Code, 1860: Sections 34, 148, 149 and  302. Unlawful  assembly--Seven accused---Acquittal  of  four--Re- maining  three cannot form unlawful  Assembly---Section  149 held  inapplicable---Evidence disclosing commission  of  of- fence in furtherance of the common intention-Non-applicabil- ity of Section 149 held no bar for conviction under  section 302 read with Section

HEADNOTE:     Appellants (A1 to A3) were tried for the offences  under Sections 147, 148, 323 and 309 read with section 149 of  the Indian Penal Code. The Trial Court acquitted A-7 of all  the charges but convicted A-1 to A-6 under sections 148 and  302 read with section 149 and sentenced them to imprisonment for life.  On  appeal the High Court acquitted A-4  to  A-6  but confirmed the conviction and sentence of the appellants.     In  appeal to this Court it was contended on  behalf  of the  appellants  that in view of the acquittal of  four  ac- cused,  the appellant’s conviction under section 148 and  on applying  section  149 cannot be sustained.  The  appellants being three in number could not have formed unlaWful  assem- bly under section 141 IPC. Disposing the appeal, this Court,     HELD: 1. The High Court erred in confirming the  convic- tion and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlaw- ful assembly alongwith some unidentified persons. The prose- cution  case  was that the seven named  accused  formed  the unlawful assembly and not that apart from the seven  accused persons there were some other unidentified persons who  were involved  in the crime. Four accused having  been  acquitted there  was  no question of the  remaining  three  appellants forming  an unlawful assembly within the meaning of  section 141  of  the Indian Penal Code. Accordingly  the  appellants cannot  be convicted under section 148 and an  applying  149 I.P.C.  Their  conviction  under the said  sections  is  set aside. [6F-G] 5     2. Both sections 149 and 34 I.P.C. deal with a  combina- tion of persons who become liable to be punished as  sharers

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in  the  commission of offences.  The  non-applicability  of Section  149 I.P.C. is, therefore, no bar in convicting  the accused under Section 302 read with section 34 I.P.C. if the evidence  discloses commission of offence in furtherance  of the common intention of them all. [6H, 7-A]     2.1 Keeping in view the manner of attack and the  number and  nature  of injuries there is no hesitation  in  holding that  the  appellants acted in furtherance of  their  common intention,  made  the murderous attack on the  deceased  and caused  his  instantaneous death. Therefore, they  are  held guilty under Section 302 read with Section 34 I.P.C. and are sentenced to life imprisonment. [7G-H]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 538 of 1983.     From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl. A. No. 469 of 1981. G. Narasimhulu for the Appellants.     T.V.S.N.  Chari,  Ms. Suruchi Aggarwal and  Ms.  Manjula Gupta for the Respondent. The Judgment of the Court was delivered by     KULDIP SINGH, J. Nethala Pothuraju, Nethala  Dhananjaya, Nethala  Remudu and four others (hereinafter referred to  as ’A-1  to  A-7’) were tried for the offences  under  Sections 147,  148, 323, 379 and 302 read with Section 149 I.P.C.  on the allegations that they caused the death of Madda  Laksha- mandas of village Ramaraogudem on November 1, 1980 near  the Tobacco garden of A-1. The Trial Court acquitted A-7 of  all the  charges A-1 to A-6 were, however, found guilty for  the offences  punishable  under Sections 148 and 302  read  with section  149 I.P.C. They were sentenced to imprisonment  for life. On appeal, the High Court confirmed the conviction and sentence  of A-1 to A-3. The conviction and sentence of  A-4 to A-6 was set aside by the High Court and they were acquit- ted on the following reasoning:                .............  We feel that it would be  safe               to accept the evidence of P.Ws. 1 and 2 to the               extent it is corroborated by the evidence               6               of P.W.3 in so far as the presence and partic-               ipation  of the accused in the attack  on  the               deceased is concerned. Accepting the  evidence               of  P.W.3 we hold that the identity of A-1  to               A-3 in the unlawful assembly consisting of  A-               1. to A-3 and some other unidentified  persons               is  satisfactorily established. The manner  in               which the attack was made on the deceased  can               only  lead  to one inference namely  that  the               common object of the unlawful assembly was  to               kill the deceased. We accordingly confirm  the               conviction  and sentence of A-1 to  A-3  under               Sections  148 and 302 read with 149 I.P.C.  We               set  aside the conviction and sentence of  A-4               to  A-6 under Sections 148 and 302  read  with               149 I.P.C. and acquit them."     This Court granted leave to appeal on the limited  ques- tion of applicability of Section 149 I.P.C.     The  learned  counsel for the appellants  has  contended that  after  the acquittal of four accused  persons  by  the courts below the conviction of the appellants under  Section 148  and on applying 149 I.P.C. cannot be sustained.  It  is argued that the appellants, being three in number, could not

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have  formed an unlawful assembly within the  definition  of Section 141 I.P.C.     In  our  view, there is force in the contention  of  the learned  counsel  for the appellants. The  appellants  being only three in number, there was no question of their forming an  unlawful  assembly  within the meaning  of  Section  141 I.P.C.  It is not the prosecution case that apart  from  the seven  accused  persons there were some  other  unidentified persons  who  were  involved in the crime.  The  High  Court clearly  fell  into error in confirming the  conviction  and sentence of the appellants under Sections 148 and on  apply- ing  149 I.P.C. on the ground that they formed  an  unlawful assembly  alongwith some unidentified persons. The  prosecu- tion  case  from the very beginning was that A1 to  A7,  the named  persons,  formed the Unlawful assembly.  A-4  to  A-7 having been acquitted, the remaining three appellants cannot be  convicted under Sections 148 and on applying 149  I.P.C. We,  therefore, set aside the conviction of  the  appellants under the said sections.     The question still remains as to whether the  appellants can  be  convieted under Section 302 read  with  Section  34 I.P.C. Both Sections 149 and 34 I.P.C. deal with a  combina- tion of persons who become liable to be punished as  sharers in  the  commission of offences. The  non  applicability  of Section  i49 I.P.C. is, therefore, no bar in convicting  the appellants under 7 Section  302  read with section 34 I.P.C.  if  the  evidence discloses  commission  of an offence in furtherance  of  the common intention of them all.     PW-1,  the wife of the deceased, PW-2, the  daughter  of the  deceased  and PW-3, an adjoining  land-owner,  are  the three  eye-witnesses  to the occurrence. It is  in  evidence that  the complainant and the accused belonged  to  opposite factions  and  there was long standing  enmity  between  the parties.  During the last 30 years, there had  been  murders and  rioting  between the two factions. The  deceased  Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused. He  had  come on parole. On the day of occurrence  at  about 7.00  A.M. when he was passing near the field of A-1 he  was attacked by the accused party. According to the eye-witness- es,  A-1 and A-3 were armed with spears, A-2, A-4,  A-5  and A-6 with knives and A-7 was armed with a stick. All of  them way-laid  the  deceased  and dragged him  into  the  Tobacco garden of A-1. It is in evidence that all the accused indis- criminately  inflicted injuries on the deceased  with  their respective    weapons. When the deceased fell down  the  ac- cused  kept on giving him spear, knife and stick blows.  The deceased was crying for water and when his daughter  brought water  A-2 caught hold of her and pushed her aside. She  was also given beating by fists. Thereafter, A-1 left the  spear and  took  a stick and gave beating to the deceased  on  his heals and chest and A-3 chopped of the fingers of left  hand of  the deceased with the knife. A-2 further gave  blows  to the deceased on his head. The deceased died  instantaneously on  the spot. Thereafter, at the asking of A-1, A-2 and  A-3 dragged  the dead body from the field of A-1 and placed  the same  on the road. There were as many as 18 injuries on  the person of the deceased. Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions. The injuries caused fracture on the right perietal bone  result- ing  in the opening of the skull. The fourth rib was  broken and there was an injury to the lung. There were injuries all over the body.

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   Keeping in view the manner of attack as disclosed by the eye-witnesses and the number and nature of injuries, we have no  hesitation in holding that the appellants made the  mur- derous  attack on the deceased and caused his  instantaneous death.  We are satisfied that the appellants acted  in  fur- therance  of  their common intention of  murdering  the  de- ceased.  We,  therefore, hold the  appellants  guilty  under Section 302 read with Section 34 I.P.C. 8     Accordingly, we convert the conviction of the appellants to  one  under Section 302 read with section 34  I.P.C.  and keep them sentenced to fife imprisonment. Appellants A-1 and A-3  are on bail under orders of this Court. We  cancel  the bail order. These appellants shall surrender to their  bail- bonds to undergo the sentence of imprisonment. T.N.A                              Appeal disposed of. 9