Pothuraju & Ors Vs. State of Andhra Pradesh  INSC 227 (11 September 1991)
Singh (J) Kuldip Singh (J) Punchhi, M.M.
1991 AIR 2214 1991 SCR Supl. (1) 4 1992 SCC (1) 49 JT 1991 (4) 135 1991 SCALE
Penal Code, 1860: Sections 34, 148, 149 and 302.
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
(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
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.
the appeal, this Court,
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
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 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,
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]
APPELLATE JURISDICTION: Criminal Appeal No. 538 of 1983.
the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl.
A. No. 469 of 1981.
for the Appellants.
Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent.
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
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 have formed an unlawful
assembly within the definition of Section 141 I.P.C.
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.
therefore, set aside the conviction of the appellants under the said sections.
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.
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.
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.
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.
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.
Appeal disposed of.