2007 Supreme(SC) 363

2007(2) Supreme 978
SUPREME COURT OF INDIA
(Andhra Pradesh High Court)
Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Mummidi Hemadri & Ors.—Appellants
versus
State of Andhra Pradesh—Respondent
Criminal Appeal No. 359 of 2007
(Arising out of SLP (Crl.) No. 2060 of 2006)
Decided on 16-3-2007
Counsel for the Parties :
For the Appellants : V.N. Raghupathy, Advocate.
For the Respondent : P. Vinay Kumar and Mrs. D. Bharathi Reddy, Advocate.

IMPORTANT POINT
Common object in terms of Section 149 IPC of an assembly is to be ascertained from acts and language of members forming it, course of conduct adopted by members arms carried by them and behaviour of members at or near the scene of incident.

Headnote:Indian Penal Code, 1860—Section 302/149—Conviction for offence of murder of appellants-accused Nos. 2, 3 and 6 with aid of Section 149 IPC where murder was committed by A4 and A5—Accused No. 1 harassed PW6 who was daughter-in-law of PW7—PWs 1, 8, 10 and deceased went to shop of accused A1 and chastised him a week before incident—On date of incident mediation took place in shop of A1 but it failed—A2 to A6 were working as cookies at business place of A1—All accused surrounded prosecution party—A2, A3 and A6 caught hold of deceased and A4 dealt two knife blows on back of deceased—A5 stabbed deceased on left side of chest and on right thigh—Deceased was dead when taken to hospital—Sustainability of conviction of appellants A2, 3 and 6 by common object of unlawful assembly—Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and person was actuated by that common object—Only thing required is that person should have understood that assembly was unlawful and was likely to commit any of acts which fell within purview of Section 141 IPC—Common object of assembly could be ascertained from acts and language of members, nature of assembly, arms carried by members and course of conduct adopted by members—Word “knew” used in section implied something more than a possibility and could not be made to bear the sense of “might have been known”—In the back ground of case, role attributed to accused, Section 149 IPC applied but offence fell u/s 304 Part II IPC—Custodial sentence of 8 years would meet ends of justice.

       Held : 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.(Para 12)

       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.(Para 13)

       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.(Para 14)

       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. (Para 15)

       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. (Para 16)