2012 Supreme(SC) 89

2012 (1) Supreme 609
SUPREME COURT OF INDIA
Asok Kumar Ganguly and T.S. Thakur, JJ.
Roy Fernandes — Appellant
versus
State of Goa and Ors. — Respondents
Criminal Appeal No. 1108 of 2002
Decided on : 1-2-2012

IMPORTANT POINT
Where there were four other persons with the appellant who had the common object of committing an offence the assembly would be unlawful in nature acquittal of some of those who were members of the unlawful assembly by reason of the benefit of doubt given to them notwithstanding.

Headnote:Indian Penal Code,1860-Sections 143, 148, 323, 325 and 302 read with Section 149-Prosecution of appellant along with four others for causing death of deceased by assaulting him with fist blows and thereafter stabbing him-Conviction by Trial Court- Appeal thereagainst-High Court upheld conviction of appellant and one other while setting aside conviction and sentence awarded to remaining three accused persons giving them benefit of doubt-Appeal-Instantly , no evidence to show that appellant knew that in prosecution of common object of preventing putting up of fence around the chapel members of assembly or any one of them was likely to commit murder of the deceased- No evidence to even show that appellant knew that A1was carrying a knife with him, which he could use- The evidence on the contrary was that after stabbing deceased A1 had put the knife back in the cover from where he had drawn it- The conduct of members of assembly especially the appellant also not suggested that they intended to go beyond preventing the laying of the fence, leave alone committing a heinous offence of murder of a person who had fallen to the ground with a simple blow and who was being escorted away from spot by his companions- Hence held that Courts below fell in error in convicting the appellant for murder with the aid of Section 149 of the IPC-However conviction of appellant for offences punishable under Sections 143, 148, 323 and 325 read with Section 149 of IPC held perfectly justified- The evidence on record clearly made out a case against appellant under said provisions and Courts below rightly found him guilty on those counts-Appeal allowed in part (Paras 22, 23)

        Indian Penal Code,1860-Section 149-Effect of-Members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object- As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly (Para 22)

        Criminal Trial-Sentence –Plea for reduction of - Conviction of appellant for offences punishable under Sections 143, 148, 323 and 325 read with Section 149 of the IPC-Instantly, incident in question had taken place as early as in year 1997- The appellant had faced a prolonged trial and suffered the trauma of uncertainty arising out of his conviction by the Trial Court and the High Court in appeal-Besides the appellant have had no criminal antecedents or involvement in any case, before or after the incident in question- He had already undergone nearly three months of imprisonment out of the sentence awarded to him-Apart from that, he had, offered to compensate victims of the incident in question suitably-Hence in the facts and circumstances of case appellant sentenced to period of imprisonment already undergone by him- Direction further given that appellant shall deposit a sum of Rs.3,00,000/- towards compensation to be paid to the widow of deceased (Paras 30, 31)

       Facts of the Case :

        A. Appellant along with four others was prosecuted herein in the instant case for causing death of death of deceased by assaulting him with fist blows and thereafter stabbing him. Trial Court convicted accused persons. On Appeal thereagainst, High Court upheld conviction of appellant and one other while setting aside conviction and sentence awarded to remaining three accused persons giving them benefit of doubt.

        B. Aggrieved appellant has filed present appeal.

       Findings of the Court :

        A.There was no evidence to show that appellant knew that in prosecution of common object of preventing putting up of fence around the chapel members of assembly or any one of them was likely to commit murder of the deceased. No evidence to even show that appellant knew that A1was carrying a knife with him, which he could use. The evidence on the contrary was that after stabbing deceased A1 had put the knife back in the cover from where he had drawn it. The conduct of members of assembly especially the appellant also not suggested that they intended to go beyond preventing the laying of the fence, leave alone committing a heinous offence of murder of a person who had fallen to the ground with a simple blow and who was being escorted away from spot by his companions.

        B. Hence held that Courts below fell in error in convicting the appellant for murder with the aid of Section 149 of the IPC.However conviction of appellant for offences punishable under Sections 143, 148, 323 and 325 read with Section 149 of IPC was held to be perfectly justified. The evidence on record clearly made out a case against appellant under said provisions and Courts below rightly found him guilty on those counts.