2003(4) Crimes 53 (SC)
Supreme Court of India
(From Bombay High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
State of Maharashtra —Appellant
versus
Kashirao and Ors. —Respondents
Criminal Appeal No. 124 of 2003
Decided on 27-8-2003

Important point
Though no hard and fast rule can be laid down under the circumstances from which common object can be culled out, it may reasonably be collected from nature of assembly, arms it carried and behaviour at or before or after scene of incident.

Headnote:(i) Indian Penal Code, 1860—Sections 147, 148, 302/149 and 307/149—Respondent accused convicted by trial Court for offences—High Court in appeal holding that elements of Section 149 were not established, conviction of only respondent No. 1 was sustained and that too under Section 326 IPC—State appeal—Accused armed with deadly weapons sword, axe and lathis with an object to kill PW 1, chased deceased who tried to escape from house of PW 1 and assaulted him and committed his murder—PW 1 was then assaulted and his left arm was severed and treating him dead accused ran away—Prosecution version was amply established by evidence of eye witnesses including PW 1—Nature of injuries, weapons used and manner of assault, all accused were liable in terms of Section 149 IPC—Gruesome nature of attack was demonstrated by injuries noticed on body of deceased—Conviction under Section 302/149 IPC recorded by trial Court ought not to have been disturbed and was liable to be restored—Offence under Section 307/149 was also liable to be restored. (Paras 9, 10, 14, 17 to 21)

       (ii) Indian Penal Code, 1860—Section 149—Common object of unlawful assembly—Mere presence of accused in unlawful assembly cannot render a person liable unless there was a common object and he was actuated by common object—Members of assembly should be aware of object and concur in it—For determining common object, conduct of each member of assembly before and at the time of attack and thereafter, motive for crime, weapons used are relevant consideration—Offence would also fall within purview of provision if offence was such as members knew was likely to be committed. (Paras 12 to 14)

       (iii) Indian Penal Code, 1860—Sections 149 and 301—Prosecution version that PW 1 was intended victim by accused persons as their object was to kill him but committed murder of another—Invocability of Section 149 IPC—All accused had chased and assaulted deceased and it was a case of transfer malice—Accused were liable to be convicted under Section 302/149.

       Held : One other aspect which was emphasized was that when prosecution version accepted PW-1 to be intended victim, Section 149 IPC cannot be invoked for deceased’s murder. This plea has no legal foundation, when logic of Section 301 IPC is applied. Same reads as follows:

       “Section 301 - Culpable homicide by causing death of person other than person whose death was intended.—If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”

       The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as a transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out. Though Section 149 IPC may not in a given case apply to a case covered by Section 301, it would depend upon the factual background involved. No hard and fast rule of universal application can be invoked. In the facts of present case, as adumbrated supra, the essential ingredients of Section 149 have been amply established. Though initially the malice was focused on PW-1, the fact that all the accused chased and assaulted the deceased is a case of transfer of malice. The same was again pursued by coming back and attacking PW-1. (Paras 17 to 19)

       Result : Appeal allowed.