whether the prosecution succeeded in proving the existence of common object amongst the accused persons and whether the accused persons acted in prosecution of the common object and that the accused persons knew that the death was likely to be committed, to convict the accused under Section 302 IPC with the aid of Section 149 IPC.= Section 149 IPC consists of two parts:  The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.  The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. = Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is set aside and they are acquitted of the same.

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 413 OF 2012
JOSEPH …Appellant
Versus
STATE, REP. BY INSPECTOR OF POLICE ….Respondent
With
CRIMINAL APPEAL NO.585 OF 2013
SAHAYAM AND ORS. ….Appellants
Versus
STATE, REP. BY INSPECTOR OF POLICE
AND ANR. ….Respondents
And
CRIMINAL APPEAL NO.662 OF 2016
EDWINSON …Appellant
Versus
STATE, REP. BY INSPECTOR OF POLICE
AND ORS. ….Respondents
J U D G M E N T
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
Page No.1 of 17
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, PW2-
Anthony 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.
Page No.2 of 17
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
Page No.3 of 17
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.P19)
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 preferred
appeal before the High Court which came to be dismissed by the High
Court by the impugned judgment.
5. Taking us through the evidence and the impugned judgment,
learned counsel for the appellants submitted that the prosecution has
failed to prove the common object of the unlawful assembly to cause the
Page No.4 of 17
death of deceased Kennedy that the accused acted in furtherance of the
common object. It was contended that the appellants should not have
been convicted for causing murder of Kennedy with the aid of Section
149 IPC. The learned counsel emphasized that the prosecution has
failed to prove existence of common object of the unlawful assembly and
that the appellants knew that death of Kennedy was likely to be caused
by the unlawful assembly and therefore, the conviction of the appellants
under Section 302 IPC with the aid of Section 149 IPC cannot be
sustained.
6. Per contra, learned counsel appearing for the State submitted that
from the evidence adduced by the prosecution and the attending
circumstances of the case, prosecution has clearly proved the existence
of common object and the courts below rightly convicted the accused
under Section 302 IPC with the aid of Section 149 IPC.
7. We have considered the rival contentions and perused the
impugned judgment and materials on record.
8. The question falling for consideration is whether the prosecution
succeeded in proving the existence of common object amongst the
accused persons and whether the accused persons acted in prosecution
of the common object and that the accused persons knew that the death
was likely to be committed, to convict the accused under Section 302
Page No.5 of 17
IPC with the aid of Section 149 IPC.
9. Before we consider the testimony of the witnesses, let us consider
the requirements for invoking the vicarious liability under Section 149
IPC. Section 149 IPC consists of two parts:
 The first part of the section means that there exists
common object and that the offence has been committed in
prosecution of the common object. In order that the
offence may fall within the first part, the offence must be
connected immediately with the common object of the
unlawful assembly of which the accused was member.
 The second part of the section means that even if the
offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
Section149, if it can be shown that the offence was such as
the members knew was likely to be committed.
What is important in each case is to find out if the offence was
committed to accomplish the common object of the assembly or was the
one which the members knew to be likely to be committed. Once the
court finds that the ingredients of Section 149 IPC are fulfilled, every
person who at the time of committing that offence was a member of the
assembly has to be held guilty of that offence. After such a finding, it
would not be open to the court to see as to who actually did the
offensive act nor would it be open to the court to require the prosecution
to prove which of the members did which of the above two ingredients.
Before recording the conviction under Section 149 IPC, the essential
ingredients of Section 141 IPC must be established.
Page No.6 of 17
10. Scope of two parts of Section 149 IPC has been explained in
Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003)
2 SCC 257, this Court has explained Section 149 and held as under:
“14. Section 149 of the Indian Penal Code provides that if an offence is
committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that
object, every person who at the time of the committing of that offence,
is a member of the same assembly is guilty of that offence. The two
clauses of Section 149 vary in degree of certainty. The first clause
contemplates the commission of an offence by any member of an
unlawful assembly which can be held to have been committed in
prosecution of the common object of the assembly. The second clause
embraces within its fold the commission of an act which may not
necessarily be the common object of the assembly, nevertheless, the
members of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common object. The
common object may be commission of one offence while there may be
likelihood of the commission of yet another offence, the knowledge
whereof is capable of being safely attributable to the members of the
unlawful assembly. In either case, every member of the assembly
would be vicariously liable for the offence actually committed by any
other member of the assembly. A mere possibility of the commission of
the offence would not necessarily enable the court to draw an
inference that the likelihood of commission of such offence was within
the knowledge of every member of the unlawful assembly. It is difficult
indeed, though not impossible, to collect direct evidence of such
knowledge. An inference may be drawn from circumstances such as
the 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. Unless the applicability of
Section 149 — either clause — is attracted and the court is convinced,
on facts and in law, both, of liability capable of being fastened
vicariously by reference to either clause of Section 149 IPC, merely
because a criminal act was committed by a member of the assembly
every other member thereof would not necessarily become liable for
such criminal act. The inference as to likelihood of the commission of
the given criminal act must be capable of being held to be within the
knowledge of another member of the assembly who is sought to be
held vicariously liable for the said criminal act…… ” [underlining
added]
Page No.7 of 17
The same principles have been reiterated in State of Punjab v. Sanjiv
Kumar alias Sanju and Ors. (2007) 9 SCC 791.
11. Creation of vicarious liability under Section 149 IPC is well
elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of
Bihar (1989) 3 SCC 5, this Court held:
“8. ……..Therefore, in order to fasten vicarious responsibility on any
member of an unlawful assembly the prosecution must prove that the
act constituting an offence was done in prosecution of the common
object of that assembly or the act done is such as the members of that
assembly knew to be likely to be committed in prosecution of the
common object of that assembly. Under this section, therefore, every
member of an unlawful assembly renders himself liable for the criminal
act or acts of any other member or members of that assembly provided
the same is/are done in prosecution of the common object or is/are
such as every member of that assembly knew to be likely to be
committed. This section creates a specific offence and makes every
member of the unlawful assembly liable for the offence or offences
committed in the course of the occurrence provided the same
was/were committed in prosecution of the common object or was/were
such as the members of that assembly knew to be likely to be
committed. Since this section imposes a constructive penal liability, it
must be strictly construed as it seeks to punish members of an
unlawful assembly for the offence or offences committed by their
associate or associates in carrying out the common object of the
assembly……” [underlining added]
The same principles were reiterated in paras (26) and (27) in Daya
Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav
and Ors. v. State of Bihar (2011) 5 SCC 324.
12. Whether the members of the unlawful assembly really had the
common object to cause the murder of the deceased has to be decided
in the facts and circumstances of each case, nature of weapons used by
Page No.8 of 17
such members, the manner and sequence of attack made by those
members 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 (vide Lalji and Ors. v. State of U.P.
(1989) 1 SCC 437; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392;
Rachamreddy Chenna Reddy and Ors. v. State of A.P. (1999) 3 SCC
97).
13. PW-1-Suresh and deceased Kennedy are the sons of PW-2
Anthony Muduthagam. There is a family dispute between PW-2’s family
and Jesu Adimai (A1) in respect of laying the fishing net in the sea. On
12.01.1994, at about 03.00 p.m., PW-2-Anthony Muduthagam,
deceased Kennedy and injured person Raja went to attend the funeral of
PW-2’s cousin Jesu. While they were talking to one another, on the
exhortation of Joseph (A11), the accused party attacked the complainant
party. The occurrence started on the eastern side of the church and in
front of the house of Sahayam (A3).
14. There are only about 350 houses in Perumanal village and most of
them are fishermen. In the village, there were two factions who
assembled to attend the funeral of Jesu. There was no common object
among the accused as only Joseph (A11) had enmity with PW-2’s
Page No.9 of 17
family. Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed
with bombs; Selvam (A4) and Antony Innasi (A5) were armed with
sickles; and A6 to A10 were armed with sticks. On the exhortation of
Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead
of deceased Kennedy and he fell down. Selvam (A2) threw the country
bomb which hit the right ankle of Raja causing injuries to him. The
bomb hurled by Sahayam (A3) fell on the ground and exploded. The
deceased died of head injuries, fracture of frontal neck and both eyes
found missing. PW-6-Dr. Kutralingam opined that the injuries on the
deceased could have been caused by hurling of bombs. The fact that
accused Nos. 1 to 3 carrying the bombs, gives indication that they had
the common intention to cause the death of the complainant party.
Selvam (A4) attacked PW-1-Suresh with aruval on the left shoulder and
Antony Innasi (A5) attacked PW-2-Anthony Muduthagam on the left
shoulder and accused Nos. 6 to 10 attacked the complainant party with
sticks. There is no evidence to prove that the accused Nos. 1 to 11 had
any common object to commit the murder of Kennedy which activated all
of them to join in furtherance of the common object.
15. As noted earlier, first part of Section 149 IPC states about the
commission of an offence in prosecution of the common object of the
Page No.10 of 17
assembly whereas the second part takes within its fold knowledge of
likelihood of the commission of that offence in prosecution of the
common object. In the facts and circumstances of the case, we are of
the view that the prosecution has not proved the existence of the
common object amongst the accused and that all of them acted in
furtherance of the common object to invoke the first part of Section 149
IPC.
16. Let us consider whether the act of the accused falls under the
second part of Section 149 IPC. As members of the unlawful assembly,
whether the accused knew that the offence of murder is likely to be
committed. It is a matter of evidence that Sahayam’s house is situated
next to the house of Jesu, for whose funeral, the two factions have
assembled. Accused Nos. 4 to 10 may not have had the knowledge that
Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with
bombs and that the murder of Kennedy was likely to be committed. On
the exhortation of Joseph (A11), the accused seem to have individually
reacted. There is no definite finding of the High Court that the common
object of the assembly was to commit the murder or that the accused
persons had knowledge that the offence of murder was likely to be
committed and hence, the conviction of the accused Nos. 4 to 10 under
Page No.11 of 17
Section 302 IPC with the aid of Section 149 IPC cannot be sustained.
17. It is now well established that this Court does not, by special leave
convert itself into an appellate court to appreciate evidence for third
time. As has been consistently held by this Court in Ramaniklal
Gokaldas and Others v. State of Gujarat (1976) 1 SCC 6 and
Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000) 1
SCC 358 and other cases, unless some serious infirmity or perversity is
shown, this Court normally refrains from reappreciating the matter on
appeal by special leave. In the case at hand, hurling of bombs is
attributed only to accused Nos. 1 to 3. Had the other accused intended
to kill Kennedy and the witnesses, they would have inflicted injuries on
the vital organs or used the surest weapon of committing murder and not
mere sickles/sticks. Conviction of accused Nos. 4 to 10 under Section
302 IPC with the aid of Section 149 IPC, in our view, suffers from
serious infirmity and liable to be set aside.
18. Insofar as the conviction of the Sahayam (A3), an attempt was
made that he cannot be convicted under Section 302 IPC as Selvaraj
(A2) and Sahayam (A3) were acquitted under Section 27(2) and Section
27(3) of the Arms Act, 1959. As rightly contended by the learned counsel
for the State, the sole reason for acquittal under Section 27(2) and
Page No.12 of 17
Section 27(3) of the Arms Act is non-obtaining of prior sanction from
District Magistrate to prosecute the accused under the Arms Act. Hence,
the acquittal of the accused Nos. 2 and 3 under Section 27(2) and
Section 27(3) of the Arms Act is of no avail to accused No. 3.
19. Joseph A11: On behalf of Joseph (A11), it was submitted that
there is nothing on record to show the involvement of Joseph in the
occurrence and no overt act is attributed to him and hence, no liability
could be fastened upon him. PWs 1 to 3 have consistently stated that
Joseph (A11) asked them to “…hack and hurl bomb…”. The words
uttered by accused Joseph is the starting point for all the troubles and all
the accused acted only on such instigation of accused Joseph (A11). In
his evidence, Johnson (PW3) had stated “that there had been dispute
between the families of Jesu Adimai (A1) and Joseph (A11) and the
family of Anthony Muduthagam (PW2) with regard to fishing at sea”.
Though no overt act is attributed to the accused Joseph, the words
uttered by him “…hack, throw bomb and kill…” clearly shows that only on
the exhortation of the accused Joseph, other accused acted and
attacked the complainant party. Joseph (A11) was convicted under
Section 302 IPC read with Section 149 IPC even though he was
charged under Section 302 IPC read with Section 109 IPC (fourth
Page No.13 of 17
charge). Though the conviction of the accused Joseph under Section
302 IPC read with Section 149 IPC cannot be sustained, the same is
modified as conviction under Section 302 IPC read with Section 109
IPC.
20. As discussed above, on the exhortation of Joseph (A11), Jesu
Adimai (A1) hurled the bomb which hit the forehead of deceased
Kennedy. Selvam (A2) hurled the bomb which hit the right ankle of Raja.
Bomb hurled by Sahayam (A3) fell on the floor and exploded. The bomb
hurled by Selvaraj (A2) and Sahayam (A3), though, had not hit the
deceased, the fact remains that they carried the bomb which clearly
indicates that Sahayam (A3) was sharing the intention with Jesu Adimai
(A1) and Selvaraj (A2) in committing the murder. Conviction of Sahayam
(A3) under Section 302 IPC read with Section 149 IPC is modified as
conviction under Section 302 IPC read with Section 34 IPC.
21. Conviction of accused Nos. 4 to 10 under Section 302 IPC with the
aid of Section 149 IPC suffers from serious infirmity and the same
cannot be sustained. Since the prosecution has not succeeded in
establishing and proving that there was an unlawful assembly with a
common object to commit the offence, conviction of the accused Nos. 3
to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section
Page No.14 of 17
147 IPC) are set aside.
22. Considering the individual acts of the appellants, Selvam (A4) and
Antony Innasi (A5) attacked PW1 and PW2 on their left shoulders
respectively with sickles, conviction of Antony Innasi (A5) is modified as
conviction under Section 324 IPC and the sentence of rigorous
imprisonment of one year is maintained. Conviction of Selvam (A4)
under Section 324 is affirmed and the sentence of imprisonment of one
year imposed upon him is affirmed. Considering the acts of accused
Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of
accused Nos.6 to 10 under Section 323 read with Section 149 is
modified as conviction under Section 323 IPC maintaining their sentence
of imprisonment of six months.
23. Conviction of Sahayam (A3) and Joseph (A11) under Section 302
IPC read with Section 149 IPC is modified as Section 302 IPC read with
Section 34 IPC and under Section 302 IPC read with Section 109 IPC
respectively and the sentence of life imprisonment awarded to each of
them is confirmed. Criminal Appeal No.413 of 2012 preferred by Joseph
(A11) is dismissed. Sahayam (A3) and Joseph (A11) are directed to
surrender to serve their remaining sentence.
24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi
Page No.15 of 17
(A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and
Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is
set aside and they are acquitted of the same. So far as conviction of
Accused Nos. 4 to 10 for other offences and the sentence imposed upon
each of them, the same is modified as indicated above and accordingly,
appeals are partly allowed. Accused Nos. 4 to 10 have already
undergone the sentence for more than six years, they need not
surrender. Their bail bonds stand discharged.
…….……………………J.
[RANJAN GOGOI]
…………….……………J.
[R. BANUMATHI]
New Delhi;
December 14, 2017
Page No.16 of 17
ITEM NO.1504 COURT NO.3 SECTION II-C
[FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 413/2012
JOSEPH APPELLANT(S)
VERSUS
STATE REP. BY INSPECTOR OF POLICE RESPONDENT(S)
WITH
CRL.A. NO. 585/2013 (II-C)
CRL.A. NO. 662/2016 (II-C)
Date : 14-12-2017 These appeals were called on for pronouncement of
judgment today.
For parties:
Mr. S. Gowthaman, AOR
Mr. Baij Nath Patel, Adv.
Ms. Sweta, Adv.
Ms. Romila, Adv.
Mr. P. Soma Sundaram, AOR
Mr. P. V. Yogeswaran, AOR
Mr. M. Yogesh Kanna, AOR

Hon’ble Mrs. Justice R. Banumathi
pronounced the judgment of the Bench comprising
Hon’ble Mr. Justice Ranjan Gogoi and Hon’ble
Mrs. Justice R. Banumathi.
The appeals are disposed of in terms of the
signed reportable judgment.
[VINOD LAKHINA] [TAPAN KUMAR CHAKRABORTY]
AR-cum-PS BRANCH OFFICER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
Page No.17 of 17