Important Point
The High Court was not at all justified in acquitting A2 to A5 and A9 of the charges u/ss. 148 and 302/149 IPC when they were members of unlawful assembly knowing that murder was likely to be committed.

Headnote:(i) Criminal Procedure Code, 1973-Sections 211 r/w 464 and 465-Validity of trial for offences under Sections 148 and 302/149 IPC-Charges suffered from infirmities - No prejudice caused-Whether trial and conviction were vitiated thereby? (No).
       Held: This Court in Willis (William) Slaney v. The State of Madhya Pradesh, 1955(2) SCR 1140 elaborately discussed the applicability of Sections 535 and 537 of the Code of Criminal Procedure 1898, which correspond respectively to Sections 464 and 465 of the Code, and held that in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross examined at length from all possible angles and the suggestions that were put forward to the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam. (Para 11)
       (ii) Criminal Procedure Code, 1973-Sections 148 and 302/149 -Nature of offence-Offence of an unlawful assembly armed with weapons who entered into the house of deceased, killed him and injured four members of family who tried to rescue-Trial Court convicting 11 out of 21 indicted-High Court setting aside convictions under Sections 148 or 149 but convicted A1 u/s. 302-Whether sustainable in law? (No)-Trial Court was right-Order accordingly.
       Held : As noticed earlier, the High Court, while relying upon the evidence of the above witnesses to uphold the conviction of A1, rejected their evidence qua the other accused, only so far as it related to their convictions under Sections 148 and 302/149 IPC on the grounds, that without strict proof of their specific overt acts they could not be convicted for the above offences only on the omnibus statements of the five eye witnesses about their culpability and that their testimony regarding the overt acts of the other accused was not supported by the medical evidence. In our considered view, none of the grounds can be sustained. (Para 14)
       In the facts and circumstances of this case the six accused (with whom only we are concerned in these appeals) would be guilty for the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to A5 and A9 is not supported by medical evidence, is factually incorrect. (Para 17)
       The injuries found on the person of the deceased as also the four injured fit in with the version of the eye witnesses regarding the manner of assault by A1 to A5 and A9 and we are at loss to understand how the High Court concluded that the medical evidence did not corroborate their evidence. (Para 18)
       When the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking open the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left the place. (Para 20)
       According to the learned counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with, the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. (Para 21)
       Held finally : On the conclusions as above, we dismiss the appeal preferred by Edia Bhoomreddy (A1), sons of Gopal Reddy, and allow the appeal of State of Andhra Pradesh and restore the convictions and sentences recorded against Thakkidi Ram Reddy (A2), Kasam Kanka Reddy (A3), Mothey Narayana Reddy (A4), Gunukulla Malla Reddy (A5) and Edia Bhoom Reddy (A9), son of Narsimha Reddy, by the trial Court under Sections 148 and 302/149 IPC. A2 to A5 and A9 are directed to surrender to their bail bonds to serve out the sentence imposed by the trial Court. (Para 22)

Judgment

M.K. Mukherjee, J.-Special leave granted in S.L.P. (Crl.) No. 4429 of 1995, limited to the nature of offence.

2. In Sessions Case No. 552 of 1992, the Additional Sessions Judge, Karim Nagar, indicted twenty one persons for lurking house trespass, rioting, murder and other allied offences. While acquitting ten of them, the trial Judge convicted the other eleven (who were arrayed as A1 to A11 respectively in the trial Court and hereinafter will be so referred to) under Sections 148 and 302/149 IPC. Besides, A1 to A3 were convicted under Section 457 IPC, A4 to A11 under Section 447 IPC and A3 and A4 under Section 324 IPC. Against their convictions and sentences A1 to A11 preferred an appeal before the High Court which was disposed of by setting aside the convictions of A2 to A11 under Sections 148 and 302/149 IPC and maintaining all other convictions. Assailing the judgment of the High Court, the State of Andhra Pradesh has filed an appeal-besides the appeal filed by A1 - against the acquittal of A2 to A11 of the charges under Sections 148 and 302/ 149 IPC wherein leave to appeal has been granted limited to the acquittal of A2 to A5 and A9. Both the appeals have been heard together and this judgment will dispose of them.

3. The prosecution case, in brief, is that in the intervening night of August 10/11, 1990, at or about 1 A.M., all the accused persons formed themselves into an unlawful assembly armed with crow-bars, sticks and other deadly weapons and descended upon the house of Gankidi Mohan Reddy (the deceased) in Thimmapur village. They broke open the door of the house and dragged him into its front yard. When his wife Bhagya Lakshmi (P.W. 2) and his brother Gankidi Narsimha Reddy (P.W. 3) intervened, A3 beat the former and A2 the latter, both with sticks. Meanwhile, the deceased had extricated himself from the clutches of the miscreants and tried to run away but he was apprehended by them and again brought to the front yard. There A1 beat him with a plough-rod (nagatipale), A2 with a crow-bar and A3 and A5 with sticks. When the parents of the deceased intervened A1 and A4 beat them also. Thereafter the other accused persons started beating the deceased. Gankidi Narsimha Reddy, a cousin of the deceased, then came to his rescue, but he was also caught hold of and beaten up. The miscreants then left the place. All the injured persons were taken to Government hospital, Karim Nagar, in a tractor where their injuries were attended to. However Gankidi Mohan Reddy succumbed to his injuries at about 4 A.M. A few hours later (at about 6 A.M.) P.W. 1 went to L.M.D. Colony Police Station and reported the incident and on his report Syed Sadiq (P.W. 13), the Head Constable, registered a case. Circle Inspector P. Satyanarayana (P.W. 15) of Husnabad took up investigation and went to the Government hospital. There he held inquest upon the dead body and sent requisition to the Medical Officer for its post-mortem examination. He then went to the scene of offence, got it photographed and seized some blood stained earth, two pairs of sleepers, two crow-bars and some broken sticks therefrom. In course of investigation he arrested the accused persons and pursuant to the statements made by some of them recovered some crow-bars and sticks. On completion of investigation, he submitted charge sheet against them.

4. The motive that was attributed to the accused for committing the offences was that there was a long standing enmity between them and the family of the deceased. According to the prosecution in the year 1982, the deceased, who was the Sarpanch of Thimmapur village, did not permit some relations of A2 and A3 to join their services even though they got appointments as Carobar and Sweeper in the Gram Panchayat under orders of the District Panchayat Officer. This enraged A2 and A3 and they assaulted the deceased. Three days later, when a panchayat was held over the issue the two groups fought with each other for which cases were regist

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1998 Supreme(SC) 785

Important PointThe High Court was not at all justified in acquitting A2 to A5 and A9 of the charges u/ss. 148 and 302/149 IPC when they were members of unlawful assembly knowing that murder was likely to be committed.

Cases Referred (3)

Important Point
The High Court was not at all justified in acquitting A2 to A5 and A9 of the charges u/ss. 148 and 302/149 IPC when they were members of unlawful assembly knowing that murder was likely to be committed.