SUPREME COURT OF INDIA
Mummidi Hemadri & Ors.
Vs.
State of Andhra Pradesh
(L.S.Panta and Arijit Pasayat,JJ.,)
16.03.2007
JUDGMENT
Dr.Arijit Pasayat, J.,
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of
the Andhra Pradesh High Court which upheld the conviction of the appellants for
the offence punishable under Sections 148 and 302 read with Section 149 of the Indian
Penal Code, 1860 .
3. In all, six accused persons faced trial. The present appeal is by accused 2,
3 and 6 (in short described as A-2, A-3 and A-6). It is to be noted that the
present special leave petition so far as it relates to accused 1, 4 and 5 (in
short described as A-1, A-4 and A-5) was dismissed by order dated 21.4.2006
while A-4 and A-5 were convicted for the offence punishable under Section 302 Indian
Penal Code, 1860, A-1, A- 2, A-3 and A-6 were convicted for offence punishable
under Section 302 read with Section 149 Indian Penal Code, 1860 and
each of the accused persons were convicted for the offence relatable to Section
148 Indian Penal Code, 1860, for which they were sentenced to suffer
rigorous imprisonment for one year and to pay a fine of Rs.100 each with default
stipulation. In respect of offence punishable under Section 302 read with
Section 149 Indian Penal Code, 1860 each accused was sentenced to
undergo imprisonment for life and to pay a fine of Rs.300/- with default
stipulation.Prosecution version as unfolded during trial is as follows:
4. On 21.10.1997 at about 5 O'clock near old K.B.S. Office at Chinthareddipalem
Donka, Stone Housepet, Nellore, the accused persons formed an unlawful assembly
and in pursuance of their common object, they caused the death of one
Nellisetti Venu (hereinafter referred to as the 'deceased') by stabbing with
knives.
5. According to the prosecution, PW-2 is the paternal uncle's son of the
deceased. The deceased and the material witnesses were living in Wood House
Sangham in Nellore whereas the accused persons were living in different
localities in Nellore Town. A-1 was doing business in gunny bags at Wood House
Sangham and accused Nos. 2 to 6 were working as coolies. One week before the
incident, accused No.1 harassed PW-6, who is the daughter in law of PW-7. On
20.10.1997 at about 3.00 p.m. PWs 1, 8, 10 Kapu Subba Rao (the husband of PW-6)
and the deceased went to the shop of A-1 and chastised A-1 for spreading
rumours that PW-6 was having illicit intimacy with one painter.
6. On 21.10.1997 at about 3.30 p.m. a mediation was held at the shop of A-1 in
the presence of mediators PW-9 and one Mekala Ramaiah. Both the elders advised
the parties to settle the dispute amicably. However, A-1 did not listen to the
said advice, while the deceased stated that it is proper to abide by the advice
of the elders. Since the mediation failed, both the parties left the place.
Subsequently, PWs 1 to 5 and the deceased together joined at Bhaskar's Tea
Stall for discussion about the mediation. Then the deceased told them that he
had to talk to one Gas Dealer near Sivalayam and he started to go to that
place. PWs 1 to 5 accompanied him. On reaching near KBS office, they saw the
accused persons. A-1 instigated the other accused persons to attack them. Then
all the accused persons surrounded them with weapons. A-2, A-3 and A-6 caught
hold of the deceased. A- 4. dealt two blows with a knife on the back of the
deceased. A-5 stabbed the deceased with a knife on the left side of chest below
the ribs and also on the right thigh. Seeing this PW's 1 to 5 raised cries. On
hearing their cries, number of people gathered there and upon their arrival,
the accused persons went away. Thereafter, PW's 1 to 5 shifted the deceased to
Government Head Quarters Hospital in an auto rickshaw. The Doctors examined the
deceased and declared him as dead. After 20 minutes, the Sub-Inspector of
Police, on receipt of telephonic information, came to the hospital and examined
PWs 2 to 5. On the same day at about 6.45 p.m. PW-1 gave a report (Ex.P1) to
PW-18 whereupon he registered a case in Crime No.135 of 1995 under Sections
147, 148, 302 and 506 read with Section 149 Indian Penal Code, 1860 and
recorded FIR in Ex.P 9. At about 7.30 p.m. PW-19 the Circle Inspector of Police
took up investigation, visited the scene of offence and recorded the statements
of PW's. PW-19 conducted inquest over the dead body of the deceased in the
presence of PW-14 and another. During the course of inquest, PW-19 seized M.Os.
4 to 7 from the dead body of the deceased. At about 1.30 p.m. PW-17 the Civil
Assistant Surgeon, Government Maternity Hospital, conducted autopsy over the
dead body of the deceased and opined that the cause of death was due to shock
and hemorrhage due to multiple injuries as per the post mortem report (Ex.P 7).
On 8.11.1997, PW-19 arrested the accused persons at Ayyappa Swamy Temple,
Nellore. Later PW-21 the Circle Inspector of Police sent the material objects
to FSL who submitted the report (Ex.P24). On completion of investigation PW-21
filed charge sheet. The plea of the accused was that of total denial.
7. Twenty one witnesses were examined to further the prosecution version. PWs 1
to 5 were claimed to be eye- witnesses. Placing reliance on the evidence of PWs
1 to 5 the trial Court recorded the order of conviction.
8. The conviction was challenged before the High Court. The main plank of the
appellants' argument before the High Court was that there were various
inconsistencies and infirmities and the prosecution has failed to establish its
case beyond reasonable doubt. It was further submitted that there was
discrepancy in the evidence so far as A-1, A-4 and A-5 are concerned. It was
further pleaded that A-2, A-3 and A-6 did not make use of any weapon. There was
no common intention to kill the deceased and even according to the prosecution
the only role attributed to A-2, A-3 and A-6 was that they caught hold of the
deceased while the other accused persons inflicted the injuries. Therefore, it
was contended that Section 149 Indian Penal Code, 1860 has no
application.
10. Stand of the prosecution before the High Court was that there was clear cut
and direct evidence attributed against all the accused persons and even though
the A-2, A-3 and A-6 did not inflict injuries, they facilitated the attacks and
in that view Section 149 Indian Penal Code, 1860 has been rightly
applied.
11. The High Court found that all the accused persons came together, they were
armed and even though A-2, A-3 and A-6 did not attack the deceased, they caught
hold of the deceased and that facilitated the attack by the other accused
persons. The High Court found no substance in the plea of the accused persons
and dismissed the appeals.
12. The stand taken by the accused and the prosecution before the High Court
were reiterated in this appeal. The pivotal question is applicability of
Section 149 Indian Penal Code, 1860. Said provision has its foundation on
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 Indian Penal Code, 1860. Where common object
of an unlawful assembly is not proved, the accused persons cannot be convicted
with the help of Section 149 Indian Penal Code, 1860. 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 Indian Penal Code, 1860. 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 Indian Penal Code,
1860.
23. 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 149 Indian Penal
Code, 1860 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,Indian Penal Code, 1860 may
be different on different members of the same assembly.
24. 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 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.
25. Section 149 Indian Penal Code, 1860, 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 a 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 Indian Penal Code, 1860, 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.
26. 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 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 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 Indian Penal Code, 1860, 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 part of the offences committed in prosecution of
the common object would also be generally, if not always, within the second
part, 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 Mysore1 and Chanda and Ors. v. State of U.P.
and Anr2.
27. Considering the background facts and the roles attributed to the accused
persons it is crystal clear that the accused persons had caught hold of the
deceased and thereafter the attacks by the other A-4 and A-5 came. A-1
instigated the other accused persons to attack the deceased.
28. There is some discrepancy in the evidence as to whether A-2, A-3 and A-6
were armed. While some of the witnesses stated that they were without arms, some
have specifically stated that they were armed. Their version is that before the
attacks A-2, A-3 and A-6 caught hold of the deceased. In view of aforesaid
background, though Section 149 Indian Penal Code, 1860 has to be
applied, yet it has to be Section 304 Part II read with Section 149 Indian
Penal Code, 1860. The conviction is accordingly altered. Custodial sentence of
8 years would meet the ends of justice.
29. The appeal is allowed to the aforesaid extent.
Judgment Referred.
1AIR 1956 SC 0731
2(2004) 5 SCC 0141