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CASE NO.: Appeal (crl.)  124 of 2003

PETITIONER: State of Maharashtra                                             

RESPONDENT: Vs. Kashirao & Ors.                                                  

DATE OF JUDGMENT: 27/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       On 27.12.1987 Subhash Warankar (hereinafter referred to as the  ’deceased’) lost his life and Pundlik (PW-1) was seriously injured.  Allegedly, the respondents were the assailants. The Additional Sessions  Judge, Amravati found them guilty of offences punishable under Sections  302, 307, 147, 148, 452 read with Section 149 of the Indian Penal Code,  1860 (in short the ’IPC’). Each was sentenced to undergo imprisonment  for life and three years for the offences relatable with Section 302  read with Section 149 and Section 307 read with Section 149 IPC  respectively.  One person, namely, Mohan was tried along with the  respondents. Since he died during the pendency of the trial the matter  was abated so far as he is concerned.  

       Factual scenario according to the prosecution is as follows:

       Relationship between Pundlik (PW-1) and respondent-accused No.1  Kashirao was strained since a long time. Originally, Pundlik (PW-1)  used to stay in a village Dhamori but he shifted his residence to  another village along with family members about one year before the  date of incident. On the date of incident when Gangadhar (PW-2),  Jayawant (PW-5) and Charandas (PW-6) and the deceased were going to  village Dhamori in an auto-rickshaw, PW-1 was standing and he enquired  from them as to where they were going and when he learnt that they were  going to Dhamori he also accompanied them and all of them reached there  at about 5.00 p.m. They went to the house of father-in-law of Gangadhar  (PW-2) who was the Sarpanch of the village. They rested there for some  time. Thereafter, PW-1 went to the weekly market along with Jayawant  (PW-5), Charandas (PW-6) and the deceased. Father of PW-1 met him at  the market and PW-1 told his father to purchase mutton so that he could  entertain his friends at night. Thereafter, he along with his friends  returned to his house. PW-1 told his mother to prepare meat for his  friends and asked PWs 5 and 6 to go to the house of Raghunath (PW-3)  and invite Gangadhar (PW-2) for the feast. House of accused-respondent  no.1 is at a short distance from the house of PW-1. All the accused  persons came together and assembled near the house of PW-1 and they  were all armed with deadly weapons.  They proceeded towards the house  of PW-1 with the common object of killing PW-1 and his friends.  At about 6.30 p.m. accused Kashirao along with other accused persons  and the deceased accused formed an unlawful assembly to cause death of  PW-1 and his friends. Accused No.1-Kashirao was armed with sword, Mohan  was armed with an axe and other accused persons were armed with lathis.  All the accused persons hurled stones at the house of Pundlik (PW-1)  and threatened to kill him and his friends. When the deceased tried to

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escape from the rear door being afraid of assaults, the accused persons  chased him and assaulted him with deadly weapons and committed his  murder. Thereafter, they came back to the house of PW-1, pelted stones  and when he ran away to save his life, the accused persons chased him  and gave blows. As a result of the assaults given, left arm of PW-1 was  severed and injuries were caused on his right arm. Another friend of  PW-1 Jayawant (PW-5) was also chased, but he successfully managed to  escape by getting into a State transport bus. On coming back to the  house of PW-1, they shouted that they had killed one person from  Amravati, others had run away and now they would kill PW-1. PW-1 tried  to save himself by throwing tiles from the roof but he did not succeed  and therefore, tried to run away from the house by jumping out from the  roof. However, accused chased him and he was assaulted. Assuming him to  be dead, they returned to the village. They also carried the severed  arm and showed it to his mother and ran away.  Mother of PW-1 went to  the place where PW-1 was lying, gave him water and took him to Kolhapur  Bus stand and then to Kolhapur police station. He was later on taken to  the hospital. His statement was recorded and the FIR was registered.  The weapons and blood stained swords were collected. The accused  persons were arrested and the charge sheet was placed.  Mohan is the  son of accused No.1 Kashirao, Mahadeo (A-4) and Sahadeo (A-5) are real  brothers and Ganesh (A-7) is the son of Ajab (A-6). All are residents  of village Dhamori.  

The prosecution sought to prove the assaults on the deceased and  PW-1 with the testimonies of PWs 1, 2, 5, 6 and 7. PWs 1, 5 and 7 were  stated to be eye-witnesses. Placing reliance on their version, the  conviction was made and sentence was awarded  as aforesaid.  

       The respondents preferred an appeal before the High Court  questioning legality of the judgment passed by the trial Court. By the  impugned judgment, the High Court held that only respondent No.1  Kashirao was guilty of offence punishable under Section 326 IPC in  respect of the assault on deceased and other respondents were not  guilty. The High Court came to the conclusion that the elements of  Section 149 were not established. For the assaults on PW-1, it was held  that the case was not covered by Section 307 IPC as held by the trial  Court but by Section 326 IPC. All the respondents were held guilty of  offence punishable under Section 326 IPC read with Section 147 IPC.  Sentence of 3 years RI and fine imposed were maintained, though  conviction was altered from Section 307 read with Section 149 IPC. It  was also stipulated that sentences in respect of accused Kashirao were  to run consecutively and not concurrently.  

       Coming to the accusations under Section 302 IPC, the High Court  was of the view that the deceased was not the intended victim, and only  the assault on his leg by accused-respondent No.1 Kashirao was  established and nothing else. That being not a very vital part the case  was not covered under Section 302 IPC and only Section 326 IPC was  applicable.  

       In support of the appeal, learned counsel for the State   submitted that the High Court’s judgment cannot stand scrutiny because  practically no reason has been given to discard the prosecution  evidence, more particularly, the evidence of eye-witnesses 1, 5 and  7  who have described in detail the roles played by each of the accused  respondents. Further, the High Court has not even indicated any reason  to show how Section 149 IPC was not applicable. After having accepted  the fact that blows were given by a deadly weapon by accused-respondent  No.1 Kashirao, there was no reason to hold him guilty of offence  punishable under Section 326  IPC and not Section 302 IPC. The fact  that the accused persons  were armed with deadly weapons, chased the  deceased and assaulted him and came back to assault PW-1 has been  established by clear, cogent and credible evidence.  There is no scope  for entertaining any doubt about the applicability of Section 149 IPC.  

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Additionally, merely because PW-1 was the victim intended, does not  take away the effect of the common object to do an illegal act. Mere  fact that instead of the original intended victim, somebody else was  also assaulted and killed does not take away the rigour of Section 149  IPC. Looked at from any angle, judgment of the High Court is  unsustainable.  

       Per contra, learned counsel for the accused-respondents submitted  that prosecution version being that PW-1 was the intended victim,  Section 149 cannot be applied. Even if it is accepted for the sake of  arguments that the deceased was chased and assaulted, the assailant  alone can be convicted and others cannot be roped in by application of  Section 149 IPC. Evidence of so-called eye-witnesses lacks  acceptability and credibility. It does not establish what role, if any,  played by the accused persons. None of them could have seen the various  assaults allegedly made. It is also submitted that view taken by the  High Court is a plausible one and considering the limited scope of  interference in an appeal against acquittal there should not be any  interference.  

       Rival contentions need to be carefully weighed.

    Evidence of PWs 1, 5 and 7 is cogent and credible. Merely because  there was some animosity between PW-1 and accused persons as claimed by  the prosecution, that cannot be a ground to discard his evidence even  if it is credible and cogent.  

       Additionally, the evidence of PWs.  5 and 7 more than strengthen  the evidence of PW-1. They have graphically described the scenario as  to how the accused persons were armed with weapons, pelted stones,  chased the deceased, assaulted him, came back and assaulted PW-1. That  being the position, the prosecution version has been amply established.  

The important question is as to applicability of Section 149 IPC  to the facts of the case.  

       A plea which was emphasized by the respondents relates to the  question whether Section 149, IPC has any application for fastening the  constructive liability which is the sine qua non for its operation.   The emphasis is on the common object and not on common intention.  Mere  presence in an unlawful assembly cannot render a person liable unless  there was a common object and he was actuated by that common object and  that object is one of those set out in Section 141.  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 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 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

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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 the community of object, and as a consequence  of this the effect of Section 149, IPC may be different on different  members of the same assembly.

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

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 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 called out, it  may reasonably be collected from the nature of the assembly, arms it  carries and behaviour at or before or after the scene of incident.  The  word ’knew’ used in the second branch of the section implies something  more than a possibility and it cannot be made to bear the sense of

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’might have been known’. Positive knowledge is necessary. When an  offence is committed in prosecution of the common object, it would  generally be an offence which the members of the unlawful assembly knew  was likely to be committed in prosecution of the common object.  That,  however, does not make the converse proposition true; there may be  cases which would come within the second part but not within the first  part.  The distinction between the two parts of Section 149 cannot be  ignored or obliterated.  In every case it would be an issue to be  determined, whether the offence committed falls within the first part  or it was an offence such as the members of the assembly knew to be  likely to be committed in prosecution of the common object and falls  within the second part. However, there may be cases which would be  within first offences committed in prosecution of the common object  would be generally, if not always, with the second, namely, offences  which the parties knew to be likely committed in the prosecution of the  common object.  (See Chikkarange Gowda and others v. State of Mysore :  AIR 1956 SC 731.)

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was  observed that it is not necessary for the prosecution to prove which of  the members of the unlawful assembly did which or what act. Reference  was made to Lalji v. State of U.P. (1989 (1) SCC 437) where it was  observed that:

"while overt act and active participation may  indicate common intention of the person perpetrating  the crime, the mere presence in the unlawful  assembly may fasten vicariously criminal liability  under Section 149".

This position has been elaborately stated by this Court in  Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).  

Above being the position in law, when the facts are applied it  becomes clear that all the accused person are liable in terms of  Section 149 IPC. Looking at the nature of the injuries, weapons used  and the manner of assaults, there was no reason to apply Section 326  IPC in case of accused-respondent No.1 alone. The trial Court had  rightly convicted the accused persons under Section 302 IPC. The  gruesome nature of the attack is amply demonstrated by the injuries  noticed on the body of the deceased. One other aspect which was  emphasized was that when prosecution version accepted PW-1 to be  intended victim, Section 149 IPC cannot be invoked for deceased’s  murder. This plea has no legal foundation, when logic of Section 301  IPC is applied. Same reads as follows:

"Section 301- Culpable homicide by causing death of  person other than person whose death was intended-  If a person, by doing anything which he intends or  knows to be likely to cause death, commits culpable  homicide by causing the death of any person, whose  death he neither intends or knows himself to be  likely to cause, the culpable homicide committed by  the offender is of the description of which it would  have been if he had caused the death of the person  whose death he intended or knew himself to be likely  to cause."

The provision is founded on a doctrine called by Hale and Foster,  a transfer of malice. Others describe it as a transmigration of motive.  Coke calls it coupling the event with the intention and the end with  the cause. If the killing takes place in the course  of doing an act  which a person intends or knows to be likely to cause death, it ought

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to be treated as if the real intention of the killer had been actually  carried out.  

Though Section 149 IPC may not in a given case apply to a case  covered by Section 301, it would depend upon the factual background  involved. No hard and fast rule of universal application can be  invoked. In the facts of present case, as adumbrated supra, the  essential ingredients of Section 149 have been amply established.  Though initially the malice was focused on PW-1, the fact that all the  accused chased and assaulted the deceased is a case of transfer of  malice. The same was again pursued by coming back and attacking PW-1.   

So far as the assaults on PW-1 is concerned, the nature of the  assaults and the injuries found clearly bring in application of Section  307 IPC. The trial Court was therefore justified in convicting accused- respondent No.1 under Section 307 IPC. The essential ingredients  required to be proved in the case of an offence under Section 307 are:-

(i)     That the death of a human being was attempted; (ii)    That such death was attempted to be caused by,  or in consequence of the act of the accused; (iii    That such act was done with the intention of  causing death; or that it was done with the  intention of causing such bodily injury as; (a) the  accused knew to be likely to cause death; or (b) was  sufficient in the ordinary course of nature to cause  death, or that the accused attempted to cause death  by doing an act known to him to be so imminently  dangerous that it must in all probability cause (a)  death, or (b)such bodily injury as is likely to  cause death, the accused having no excuse for  incurring the risk of causing such death or injury.

In offence under Section 307 all the ingredients of offence of  murder are present except the death of the victim. For the application  of Section 307 it is not necessary that the injury capable of causing  death should have been actually inflicted. The injuries sustained, the  manner of assaults and the weapons used clearly make out a case of  Section 307 IPC. But since sentence and fine have been maintained  alteration of conviction notwithstanding no modification of sentence  need be made.   It is true that when two views are possible and if  one view has been adopted by the Court to either acquit the accused or  to apply a different provision of law, interference should not be made  but when the judgment suffers from legal infirmities and application of  legal position to the factual scenario is unsustainable, interference  is not only necessary but also highly desirable. The appeal deserves to  be allowed. In the ultimate, the judgment of the High Court is set  aside and that of the trial Court is restored. The respondents shall  surrender to custody and serve out the balance sentence.