Hemadri and Ors Vs. State of Andhra Pradesh  Insc 291 (16 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(Arising out of SLP (Crl.) No.2060 of 2006) Dr. ARIJIT PASAYAT, J.
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 (in short the 'IPC').
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 IPC, A-1, A- 2, A-3 and A-6 were convicted for offence punishable under Section
302 read with Section 149 IPC and each of the accused persons were convicted
for the offence relatable to Section 148 IPC, for which they were sentenced to
suffer rigorous imprisonment for one year and to pay a fine of Rs.100 each with
In respect of offence punishable under Section 302 read with Section 149 IPC
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:
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.
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.
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
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
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 IPC 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.
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.
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 IPC has no application.
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 IPC has been rightly applied.
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.
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 IPC. 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 IPC. Where common object of an
unlawful assembly is not proved, the accused persons cannot be convicted with
the help of Section 149 IPC. 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 IPC.
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 IPC.
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 IPC 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. 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.
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 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 IPC, 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 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 IPC, 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 Mysore (AIR 1956 SC 731) and
Chanda and Ors. v. State of U.P. and Anr. (2004 (5) SCC 141).
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.
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 IPC has to be applied, yet it has to
be Section 304 Part II read with Section 149 IPC. The conviction is accordingly
altered. Custodial sentence of 8 years would meet the ends of justice.
The appeal is allowed to the aforesaid extent.