IMPORTANT POINT
Once a person found to be member of unlawful assembly and participated in commission of offence in prosecution of common object of that unlawful assembly, he cannot escape liability by plea that he did not cause serious injury.

JUDGMENT

B.P. Singh, J.-The appellants herein have impugned the judgment and order of the High Court of Judicature at Madras dated March 5, 1997 in Criminal Appeal No. 177 of 1988 whereby their conviction under Section 302 read with Section 149 of the IPC and sentence of life imprisonment, as well as their conviction under Section 147 and sentence of six months rigorous imprisonment has been affirmed by the High Court. We may observe that apart from these two appellants, two other persons who were convicted by the same judgment and order had also preferred a Special Leave Petition before this Court alongwith the appellants herein, but the Special Leave Petition in so far as it related to them, was rejected by this Court by order dated 12.12.1997.

2. In all eight persons were put up for trial before the Second Additional Sessions Judge, Madras, charged variously of offences under Sections 147, 148, 302 and 302/149 IPC. The appellants herein were A-1 and A-6 before the trial court. The learned Additional Sessions Judge by his judgment and order dated 25th March, 1988 in Sessions Case No. 142/87 found A-2 guilty of the offence under Section 302 IPC and sentenced him to imprisonment for life. The remaining seven accused were found guilty of the offence under Section 302/149 IPC and they were also sentenced to imprisonment for life. Further, the appellants herein as well as A-3, A-4 and A-7 were found guilty of the offence under Section 147 IPC and sentenced to undergo six months rigours imprisonment. A-2, A-5 and A-8 were further sentenced to rigours imprisonment for one year under Section 148 IPC.

3. Aggrieved by the judgment and order of the trial court, three appeals were preferred before the High Court of Judicature at Madras being Criminal Appeal Nos. 177-179 of 1988. The appellants herein were the appellants in Criminal Appeal No. 177 of 1988 alongwith two others. It appears that during the pendency of the appeal in the High Court, A-2 died. Therefore, the appeal as against him abated. The High Court by a common judgment of March 25, 1997 allowed the appeals preferred by A-3, A-4 and A-7. However, it confirmed the conviction and sentence of the other accused including the appellants herein. A Special Leave Petition was preferred by the appellants herein alongwith A-5 and A-8, but as earlier noticed, the Special Leave Petition preferred on behalf of A-5 and A-8 was rejected by this Court. In this appeal, therefore, we are only concerned with the conviction of the two appellants herein.

4. The case of the prosecution was that on 21.6.1987 at about 9.00 P.M. all the accused having formed themselves into an unlawful assembly with the common object of committing the murder of one Babu surrounding him and assaulted him as a result of which he succumbed to his injuries. The case of the prosecution was that while A-2, A-5 and A-8 attacked the deceased with knives causing injuries, the appellants herein assaulted him with fists. The three remaining accused who have since been acquitted, were alleged to have dragged the deceased to a considerable distance, though there was no allegation that they took part in the assault. So far as the acquitted accused are concerned the High Court recorded a finding in their favour since the evidence disclosed that they had come to the place of occurrence after the assault on the deceased was over and therefore were not members of the unlawful assembly, sharing a common unlawful object. In any event, the High Court gave to them the benefit of doubt as there was no evidence to prove that the deceased had been dragged by them as alleged. The evidence on record disclosed the complicity of the remaining accused, including the appellants herein. They were, therefore, convicted and sentenced as earlier noticed.

5. Learned counsel for the appellants submitted that having regard to the role played by the appellants herein, they cannot be found guilty of the offence under Section 302 read with Section 149 IPC. The