IMPORTANT POINT
Background of incident, motive, nature of assembly, nature of arms carried by members, their common object and behaviour of members soon before, at and after actual occurrence are relevant factors to draw inference of common object u/s 149 I.P.C.

Headnote:Indian Penal Code, 1860—Sections 302 r/w 149, 307, 326 & 324—Five accused convicted under by Trial Court and conviction upheld by High Court—Special Leave Petition of accused 1, 2 and 3 was dismissed—Appeal by accused 4 and 5 and contention that they could not be convicted with aid of Section 149 IPC—PWs 1 and 2, two brothers, were proceeding to their house at about mid-night, accused accosted them with deadly weapons—Accused A2 stabbed PW2 on his abdomen and his intestines came out—PW1 cried and informed at his house and deceased, father of PWs 1 and 2 came out followed by daughters PWs 5 and 6—A3 stabbed deceased on his shoulder and thigh and as deceased tried to run away A1 prevented him and hit him with knife on his head—A4 attacked PW10 and cut her ring finger of both hands who with her husband PW3 had come out of their house on hearing shouts—PWs 3 and 10 were independent witnesses—Question whether appellants could be said to have formed a common object with accused 1, 2 and 3 to commit alleged offences—All accused came together and were armed with knives—PWs 3 and 10 when tried to save deceased were caused grievous injury—No conflict in ocular testimony and medical evidence—Only because Investigating Officer failed to discover fingers of PW10 same would not be sufficient to discard consistent evidence—Conviction with aid of Section 149 IPC suffered no illegality.
       Held : All the accused persons came together. All of them were armed with knives. They accosted P.Ws. 1 and 2. They caused the death of the deceased round about mid-night on the street. The first incident took place near the house of the deceased. The stab injury was given to P.W.2-Kannan as a result whereof his intestines came out. When P.W.1, on seeing this, went inside the house and narrated the same to his parents and others, the deceased and his wife P.W.4 came out followed by their daughters P.W.5 and P.W.6. The deceased was not only given a fatal blow by the accused No.2, when he intended to save himself from further attack and was running towards the stairs, he was prevented by accused No.1 from doing so. He was assaulted by him. P.W.3 and P.W.10 came to the scene of occurrence on hearing their cries. P.W.3, admittedly, is a constable. It is, therefore, but natural that he sought to intervene. A grievous injury was caused to him by the Appellant-Kalith.(Para 21)
       For the purpose of invoking Section 149 of the Indian Penal Code, the entire incident must be taken into consideration. The occurrence resulted in death of one person and suffering of grievous injuries by some of the prosecution witnesses were part of the same transaction. The Appellants, as stated, came with the other accused persons with deadly weapons at mid-night. The active role played by both the Appellants herein, clearly stand proved by the evidence of the prosecution witnesses. We have noticed hereinbefore that not only at the dead of night P.W.1 and other witnesses were attacked, accused Nos. 1 and 2 also went inside the house of the deceased and prevented the deceased from escaping from further assault. Whoever had come to the scene of occurrence and tried to intervene, had suffered injuries at the hands of one or the other accused persons. P.W.3 and P.W.10, it is true, were related to the deceased, but, they were also related to accused Nos. 1 and 2, as admittedly, both the families are related to each other. It is not the case of the Appellants or for that matter the accused Nos. 1 and 2 that P.W.3 and P.W. 10 were inimical to them. There is nothing on record to show that they bore any grudge towards them. It is in the aforementioned fact situation, the role played by the Appellants herein must be considered. They did not make any attempt to stop the Appellants Nos. 1 and 2 from continuing assault on the family members of P.W.2. They had not only watched as to how P.W.2 - Kannan, son of the deceased, the deceased himself, P.W.-4 wife of deceased and the two daughters, i.e., P.W.5-Leela and P.W.6-Gandhimathi, suffered injuries after injuries at the hands of the accused Nos. 1 and 3, but even when P.W.3-Venkatesan came to intervene, a grievous injury was caused by Appellant-Kalith and when thereafter P.W.10, a lady intervened, she also had sustained injuries on her hands. It is immaterial, in the aforementioned fact situation obtaining herein that P.W.10 suffered simple injury, in view of the fact that whoever had come to interfere had been dealt with one way or the other by the accused persons.(Paras 28 to 32)
       Section 149 of the Indian Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilt of the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regard likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf. [See Rajendra Shantaram Todankar vs. State of Maharashtra & Ors. reported in (2003) 2 SCC 257.] It is also well-settled that if death had been caused in prosecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. [See State of Rajasthan vs. Nathu & Ors. reported in (2003) 5 SCC 537.](Paras 35 and 36)

JUDGMENT

S.B. Sinha, J.—These two appeals arising out of the same judgment and involving common question of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. The Appellants herein, Munivel (original accused No.5), Kalith (original accused No.4), Selvam @ Silvakumar (original accused No.1), Sasi @ Sasikumar (original accused No.2) and Madhu @ Madhusudanan (original accused No. 3) were convicted under Section 302 read with Section 149 of the Indian Penal Code (‘IPC’ for short) and sentenced to undergo rigorous imprisonment for life. Accused No.2 was also convicted under Section 307 IPC and sentenced to undergo ten years rigorous imprisonment. Accused No.3 was convicted for an offence under Section 302 IPC and sentenced to undergo life imprisonment. Accused No.4 was also convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for seven years. Accused No.5 was also convicted under Section 324 IPC and sentenced to undergo three years rigorous imprisonment. All the sentences were, however, directed to run concurrently. In an appeal preferred by the afore-mentioned accused persons, the High Court modified the judgment of the learned trial court in the following terms :

“Under those circumstances, the conviction imposed by the Trial Court on A-1, A-2 and A-5 or the offence under Section 302 read with 149 IPC, is perfectly correct. But a slight modification could be made as regards A-1 and A-2. In the case, A-3 has been convicted only for Section 302 IPC simplicitor. A-1 has been convicted for the offence under Section 302 read with 149 IPC. But both A-1 and A-3 have attacked the deceased and caused injury. Though the injury caused by A-1 is not fatal, it would be appropriate to convict A-1 and A-2 for the offence under Section 302 read with 34 IPC. Therefore, the conviction imposed on A-1 and A-2 is modified to the extent that they are convicted for the offence under Section 302 read with 34 IPC, instead of Section 302 read with 149 IPC and A-2’s conviction for the offence under Section 307 IPC is confirmed.”

3. The High Court confirmed the judgment of conviction and sentence imposed by the Trial Court in respect of other offences on accused Nos.3, 4 and 5 under Sections 302, 326, 324 and 302 read with Section 149 IPC respectively.

4. Accused Nos. 1, 2 and 3 preferred the special leave petition before this Court, but the same has dismissed.

5. Mr. A.T.M. Rangaramanujam, learned Senior Counsel and Mr. P. Ramesh, learned counsel appearing on behalf of the Appellants in these appeals, raised only two contentions before us - (i) having regard to the role played by them, they cannot be said to have committed an offence under Section 302 IPC read with Section 149 IPC; and (ii) no case has been made out even for convicting them for offences under Sections 326 IPC and 307 IPC respectively.

6. Before we advert to the merit of the matters, we may briefly notice the following facts :

P.W.1-Raja and P.W.2-Kannan are the sons of deceased Babu Naidu. P.W.3-Venkatesan is his brother. Tmt. Balamani, who examined herself as P.W.4, is the wife of the deceased. P.W.5-Leela and P.W.6-Gandhimathi are the daughters of the deceased. P.W.7-Srinivasan and P.W.8-Panneer Selvam were the friends of the deceased. P.W. 10-Tmt. Pushpa is the wife of afore-mentioned P.W.3- Venkatesan. The accused Nos. 1 and 2 were brothers, whereas accused Nos. 3 and 5 are their associates. The mother of the accused Nos. 1 and 2, Jayalakshmi, was distantly related to the deceased. The family of both the parties were carrying on business of chit transactions. P.W.4 - Balamani joined chit transactions carried out by the said Jayalakshmi, but allegedly did not pay the amount payable therefor regularly. Further allegedly, two other subscribers introduced by P.W.4-Balamani had also not paid back the chit amount to Jayalakshmi, as a result whereof there used to be frequent quarrels between the parties.

7. It is further alle

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2006 Supreme(SC) 325

IMPORTANT POINTBackground of incident, motive, nature of assembly, nature of arms carried by members, their common object and behaviour of members soon before, at and after actual occurrence are relevant factors to draw inference of common object u/s 149 I.P.C.

Cases Referred (4)

IMPORTANT POINT
Background of incident, motive, nature of assembly, nature of arms carried by members, their common object and behaviour of members soon before, at and after actual occurrence are relevant factors to draw inference of common object u/s 149 I.P.C.