IMPORTANT POINTS
Once the two ingredients of section 149 are found fulfilled, it would neither be open to the court to see as to who actually did the offensive act nor to require the prosecution to prove which of the members did which of the two ingredients.
Factors deciding whether the assembly had common object to cause murder of the deceased are nature of weapons used, manner and sequence of attack made on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case.
By granting special leave Supreme Court does not convert itself into an appellate court to appreciate evidence for third time.
Acquittal u/s 27(2) and 27(3), Arms Act, 1959 on the sole ground of non-obtaining of prior sanction from District Magistrate to prosecute would be of no avail in conviction u/s 302 IPC.

Headnote:(a) Indian Penal code, 1860 – Section 149 – To invoke section 149, essential ingredients of section 141 have to established – Once the two ingredients of section 149 are found fulfilled, it would neither be open to the court to see as to who actually did the offensive act nor to require the prosecution to prove which of the members did which of the two ingredients. (Para 9)
       (2003) 2 SCC 257; (2007) 9 SCC 791 – Relied upon
       (b) Indian Penal code, 1860 – Section 149 – Vicarious liability – Every member of the unlawful assembly would be vicariously liable for acts done by any member of the assembly. (Para 11)
       (1989) 3 SCC 5; (2010) 5 SCC 81; (2011) 5 SCC 324 – Relied upon
       (c) Indian Penal Code, 1960 – Section 149 – Factors deciding whether the assembly had common object to cause murder of the deceased – Nature of weapons used, manner and sequence of attack made on the deceased and the circumstances under which the occurrence took place – It is an inference to be deduced from the facts and circumstances of each case – Instantly, accused 1 to 11 did not have common object of killing the deceased – Secondly, accused 4 to 10 did not have knowledge that deceased would be killed – Held, conviction of accused 4 to 10 u/s 302 r/w section 149 cannot be sustained. (Para 12, 14, 15, 16)
       (1989) 1 SCC 437; (1995) 4 SCC 392; (1999) 3 SCC 97 – Relied upon
       (d) Constitution of India – Article 136 – By granting special leave Supreme Court does not convert itself into an appellate court to appreciate evidence for third time. (Para 17)
       (1976) 1 SCC 6; (2000) 1 SCC 358 – Relied upon
       (e) Arms Act, 1959 – Sections 27(2) and 27(3) – Acquittal under – On the sole ground of non-obtaining of prior sanction from District Magistrate to prosecute – Of no avail in conviction u/s 302 IPC. (Para 18)
       (f) Indian Penal Code, 1860 – Sections 302, 149 and 109 – Accused A 11 not attributed any overt act – But he exhorted others to "...hack and hurl bomb..." – Others acted and that resulted in killing of deceased – Conviction of A 11 u/s 302/149 modified to 302/109. (Para 19)
       (g) Indian Penal Code, 1860 – Sections 302, 149 and 34 – A1 to A3 carrying and hurling bombs at deceased – Bombs of A2 and A3 not hitting deceased – Clearly they had common intention of killing deceased – Conviction modified from section 302/149 to 302/34. (Para 20)
       (h) Indian Penal Code, 1860 – Section 302, 149 and 148 – Invocation of section 149 against A1 to A11 found unsustainable – Conviction of A4 to A10 u/s 302/149 also found unsustainable – Hence conviction of A3 to A5 u/s 148 and A6 to A11 u/s 147 cannot be sustained – However considering their overt acts, conviction of A4, A5 u/s 324 and those of A6 to A10 u/s 323/149 affirmed – Similarly conviction of A3 and A11 modified to u/s 302/34 and 302/109 respectively. (Para 21, 22, 23)
       Facts of the case:
       The appellants were convicted and sentenced under Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC.
       The High Court affirmed the conviction and the sentence.
       Finding of the Court:
       Section 149 is not attracted.
       Result: Appeals partly allowed.

JUDGMENT :

R. Banumathi, J.

These appeals arise out of the judgment dated 10.02.2011 passed by Madras High Court at Madurai Bench dismissing Criminal Appeal No.519 of 2002 thereby affirming the conviction of the appellants under Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC and also the sentence of imprisonment imposed upon each of them.

2. Briefly stated case of prosecution is that on 12.01.1994, PW2Anthony Mududhagam, deceased Luis John Kennedy and Raja came to attend funeral of one Jesu (PW2's cousin). While they were standing near Sahayam's (A3) house at about 3.05 p.m., Jesu Adimai (A1)(since dead), Selvaraj (A2) and Sahayam (A3) armed with country made bombs in their hands, Selvam (A4) and Antony Innasi (A5) armed with sickles, Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10) with sticks and Joseph (A11) came there and confronted the deceased Kennedy, PW2 and Suresh (PW1) [who just came there to see his father PW2]. Joseph (A11) instigated all the accused to attack on them. Selvam (A4) attacked PW1 with sickle on the left shoulder. Jesu Adimai (A1) threw one country bomb which hit the forehead of the deceased and the deceased fell down. Selvaraj (A2) threw the bomb which hit the right leg of Raja. Sahayam (A3) also threw a bomb which has fallen on the ground. Antony Innasi (A5) attacked PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and PW2 indiscriminately causing injuries to them. On seeing the by-standers coming towards the spot, the accused ran away from the scene. Thereafter Johnson (PW-3) hired a tempo and took the injured to Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy succumbed to injuries.

3. Based on the statement of Raja (Ex.P-16), FIR (Ex.P-9) was registered in Crime No.23/94 under Sections 147, 148, 326, 307 and 302 IPC as well as under the Indian Explosives Act. PW9-Krishnan Nair, Inspector in Charge had taken up the initial investigation and prepared rough sketch (Ex.P-10) of the place of occurrence and seized articles viz., blood stained earth (M.O.6) and sample earth (M.O.7) from the scene of crime and conducted the inquest (Ex.P11). PW6-Dr. Kutralingam conducted autopsy on the body of the deceased and noted "lacerated injury with burnt out black skin margins over the head both ocular areas; both eyes found to be missing; Face and forehead was seen seriously disfigured." PW6-Dr. Kutralingam opined that "the death was due to head injuries and the same could have been caused by explosion of bomb" and issued post-mortem certificate (Ex.P-6). On 15.01.1994, PW12-Ganesan-Inspector of Police, took up further investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at about 04:45 a.m. Confession statement (Ex.P3) recorded from Selvam (A4) which led to recovery of sickle with wooden handle (M.O.2) and sickle with iron handle (M.O.3). On completion of investigation and submission of final report on 08.11.1995, all the accused were remanded to judicial custody.

4. To bring home the guilt of the accused, prosecution has examined witnesses (PWs 1 to 12) and marked nineteen exhibits (Ex.P-1 to Ex.P-19) and seven material objects (M.O.1 to M.O.7). The accused were questioned under Section 313 Cr. P.C. about the incriminating evidence and circumstances and the accused denied all of them. Upon consideration of evidence adduced by the prosecution, the trial court held that the prosecution has proved the existence of common object of the unlawful assembly and that the accused acted in furtherance of the common object and convicted all the eleven accused under Section 302 IPC with the aid of constructive liability under Section 149 IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for various other offences and were sentenced to undergo various imprisonment. Being aggrieved by the verdict of conviction and sentence imposed upon them, the accused

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2017 Supreme(SC) 1187

Cases Referred (10)