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PETITIONER:

STATE OF A.P., EDLA BHOOM REDDY

Vs.

RESPONDENT:

THAKKIDIRAM REDDY & ORS., STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 11/08/1998

BENCH:

M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRIMINAL APPEAL NO 793 OF 1998

(ARISING OUT OF S.L.P. (CRL.) NO. 4429 OF1995)

J U D G M E N T

M.K. MUKHERJEE,J.

Special leave granted in S.L.P. (Crl.) No. 4429 of

1995, limited to the nature of offence.

2. In Sessions Case No. 552 to 1992, the Additional

Sessions Judge, Karim Nagar, indicted twenty one persons for

lurking house trespass, rioting, murder and other allied

offences. While acquitting ten of them, the trial Judge

convicted the other eleven (Who were arrayed as A1 to A11

respectively in the trial Court and hereinafter will be so

referred to) under Section 148 and 302/149 IPC. Besides, A1

to A3 were convicted under Section 457 IPC, A4 to A11 under

Section 447 IPC and A3 and A4 under Section 324 IPC. Against

their convictions and sentences A1 to A11 preferred an

appeal before the High Court which was disposed of by

setting aside the convictions of A2 to A11 under Sections

148 and 302/149 IPC and maintaining all other convictions.

Assailing the judgment of the High Court, the State of

Andhra Pradesh has filed an appeal - besides the appeal

filed by A1 - against the acquittal of A2 to A11 of the

charges under Section 148 and 302/149 IPC wherein leave to

appeal has been granted limited to the acquittal of A2 to A5

and A9. Both the appeals have been heard together and this

judgment will dispose of them.

3. The prosecution case, in brief, is that in the

intervening night of August 10/11, 1990, at or about 1 A.M.,

all the accused persons formed themselves into an unlawful

assembly armed with crow-bars, sticks and other deadly

weapons and descended upon the house of Gankidi Mohan Reddy

(the deceased) in Thimmapur village. They broke open the

door of the house and dragged him into its front yard. When

his wife Bhagya Lakshmi (P.W.2) and his brother Gnakidi

Narsimha Reddy (P.W.3) intervened, A3 beat the former and A2

the latter, both with sticks. Meanwhile, the deceased had

extricated himself form the clutches of the miscreants and

tried to run away but he was apprehended by them and again

brought to the front yard. There A1 beat him with a plough-

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rod (negatipale). A2 with a crow-bar and A3 and A5 with

sticks. When the parents of the deceased intervened A1 and

A4 beat them also. Thereafter the other accused persons

started beating the deceased. Gankidi Narsimha Reddy, a

cousin of the deceased, then came to his rescue, but he was

also caught hold of and beaten up. The miscreants then left

the place. All the injured persons were taken to Government

hospital, Karim Nagar, in a tractor where their injuries

were attended to. However Gnakidi Mohan Reddy succumbed to

his injuries at about 4 A.M. A few hours later (at about 6

A.M.) P.W.1 went to L.M.D. Colony Police Station and

reported the incident and on his report Syed Sadiq (P.W.

13), the Head Constable, registered a case. Circle Inspector

P. Satyanarayana (P.W.15) of Husnabad took up investigation

and went to the Government hospital There he held inquest

upon the dead body and sent requisition to the Medical

Officer for its post-mortem examination. He then went to the

scene of offence, got it photographed and seized some blood

stained earth, two pairs of sleepers, two crow-bars and some

broken sticks therefrom. In course of investigation he

arrested the accused persons and pursuant to the statements

made by some of them recovered some-crow-bars and sticks. On

completion of investigation, he submitted charge sheet

against them.

4. The motive that was attributed to the accused for

committing the offences was that there was a long standing

enmity between them and the family of the deceased.

According to the prosecution in the year 1982, the deceased,

who was the Sarpanch of Thimmapur village, did not permit

some relations of A2 and A3 to join their services even

though they got appointments as Carobar and Sweeper in the

Gram Panchayat under orders of the District Panchayat

Officer. This enraged A2 and A3 and they assaulted the

deceased. Three days later, when a panchayat was held over

the issue the two groups fought with each other for which

cases were registered against both. Later on, there was a

matrimonial dispute between the cousin of A1 and the

daughter of one of the followers of the deceased. Following

that dispute the relatives of the girl beat her husband, her

father-in-law and A1 for which a case was registered. It is

further alleged that A12 usurped the house of one Fakir

which was unauthorisedly built on a Government land and the

deceased, as the Sarpanch, got a resolution passed for its

demolition. He got similar resolution passed when A13

constructed another unauthorised house. Owing to such bitter

enmity the accused persons conspired to do away with the

deceased and pursuant to that conspiracy they committed the

crimes the question.

5. The accused persons pleaded not guilty to the charges

levelled against them and contended that they were falsely

implicated.

6. In support of its case, the prosecution examined 15

witnesses but no witness was examined on behalf of the

defence. Of the witnesses examined, P.Ws. 1, 2 and 3 and two

of their neighbours, namely Gankidi Laxma Reddy (P.W.4) and

Babu Reddy (P.W.5), figured as eye witnesses, P.W.s.1 ,2 and

3 narrated the prosecution case detailed earlier and also

spoke about their long standing enmity with the accused; and

P.Ws. 4 and 5 fully supported their version of the incident.

The trial Judge discussed the evidence of the above five

witnesses threadbare in the light of the arguments canvassed

on behalf of the defence against its acceptance and held

that so far as the place and time of offence and the overt

acts attributed to them, there were no material

discrepancies except one or two omissions. The trial Judge

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found that the evidence of the eye witnesses was

corroborated by the evidence of P.W.12, who held post-mortem

examination upon the deceased, and of Dr. Raghavaiah who

exmained P.Ws. 1, 2 and 3 and Gankidi Narsimha Reddy, the

cousin of the deceased (not examined) and found injuries on

their persons. The trial Judge further found that the F.I.R.

was promptly lodged by P.W.1 and it contained the substratum

of the prosecution case. Inspite of such findings the trial

Judge gave the benefit of doubt to A12 to A21 as their names

were not mentioned in the F.I.R.

7. The High Court virtually confirmed all the findings of

the trial Court in all respects but set aside the

convictions of A2 to A11 of the offences under Section 148

and 302/149 IPC with the following observations :

"The omnibus statement about the

culpability of the accused in the

testimony of the prosecution

witnesses would in the

circumstances of the case have to

be considered only in the light of

specific overacts attributed to the

accused and as may be corroborated

by Medical evidence. Therefore, we

find it difficult to accept that

all the appellants were members of

the unlawful assembly with the

object of committing the offence.

In the circumstances, we hold that

it is highly unsafe to apply

Section 149 and make everyone of

them constructively liable. We

therefore have no hesitation in

dismissing the prosecution case

against the appellants on the

charge under Section 149 IPC.

Accordingly, the conviction of all

the appellants accused under

Section 149 IPC is set aside.

Having rejected the contention that

the appellants were members of

unlawful assembly, it would be

equally unsafe to apply section 148

of IPC on the basis of omnibus

statements made by the prosecution

witnesses which is not corroborated

by Medical evidence. Accordingly,

the conviction of all the

(appellants) accused under Section

148 IPC is set aside."

In upholding the conviction of A1 for the murder the

High Court observed that all the five witnesses consistently

deposed that A1 beat the deceased with a stick meant for

ploughing called nagatipale on his head and the doctor

(P.W.12) opined that the victim died of the head injury.

8. We have carefully gone through the entire evidence on

record and the judgments of the learned Courts below and

heard the learned counsel for the parties at length.

9. Before considering the factual aspects of the case, it

will be necessary to advert to a question of law relating to

the validity of the trial raised by Mr. Arunachalam, the

learned counsel appearing for A2 to A5 and A9. He contended

that charges were not framed against the accused persons in

accordance with Section 211 of the Code of Criminal

Procedure, in that, in the charge framed under Section 148

IPC though it was alleged that they were the members of an

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unlawful assembly it was not mentioned what was its common

object. Besides, he contended, a charge under Section 302

IPC simpliciter was framed against all the accused persons

and not with the aid of Section 149 IPC for which they were

convicted by the trial court. He submitted that an accused

is entitled to precisely know the exact nature of the charge

brought against him. According to him, unless he has this

knowledge, he will be prejudiced in his defence,

particularly in a case - as the present one - where he is

sought to be prosecuted for acts not committed by himself

but by others with whom he is in company. It is undoubtedly

true that the charges suffered from the infirmities pointed

out by Mr. Arunachalam but the question is whether the

trial, and, for that matter, the convictions recorded

against the accused were vitiated thereby.

10. Sub-Section (1) of Section 464 of the Code of Criminal

Procedure, 1973 (`Code' for short) expressly provides that

no finding, sentence or order by a Court of competent

jurisdiction shall be deemed invalid merely on the ground

that no charge was framed or on the ground of any error,

omission or irregularity in the charge including any

misjoinder of charges, unless in the opinion of the Court of

appeal, confirmation or revision, a failure of justice h as

in fact (emphasis supplied) been occasioned thereby. Sub-

section (2) of the said section lays down the procedure that

the Court of appeal, confirmation or revision has to follow

in case it is of the opinion that a failure of justice has

in fact been occasioned. The other section relevant for our

purposes is Section 465 of the Code; and it lays down that

no finding, sentence or order passed by a Court of competent

jurisdiction shall be reversed or altered by a Court of

appeal, confirmation or revision on account of any error,

omission or irregularity in the proceedings, unless in the

opinion of that Court, a failure of justice has in fact been

occasioned. It further proves, inter alia, that in

determining whether any error, omission of irregularity in

any proceeding under this Code has occasioned a failure of

justice, the Court shall have regard to the fact whether the

objection could and should have been raised at an earlier

stage in the proceedings.

11. This Court in Willis (William) Slaney v. The State of

Madhya Pradesh [1995 (2) SCR 1140] elaborately discussed the

applicability of Sections 535 and 537 of the Code of

Criminal Procedure 1898, which correspond respectively to

Section 464 and 465 of the Code, and held that in judging a

question of prejudice, as of guilt, courts must act with a

broad vision and look to the substance and not to

technicalities, and their main concern should be to see

whether the accused had a fair trial, whether he knew what

he was being tried for, whether the main facts sought to be

established against him were explained to him fairly and

clearly and whether he was given a full and fair chance to

defend himself. Viewed in the context of the above

observations of this Court we are unable to hold that the

accused persons were in any way prejudiced due to the errors

and omissions in the charges pointed out by Mr. Arunachalam.

Apart from the fact that this point was not agitated in

either of the Courts below, from the fact that the material

prosecution witnesses (who narrated the entire incident)

were cross examined at length from all possible angles and

the suggestions that were put forward to the eye witnesses

we are fully satisfied that the accused persons were not in

any way prejudiced in their defence. While on this point we

may also mention that in their examination under Section 313

of the Code, the accused persons were specifically told of

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their having committed offences (besides others) under

Sections 148 and 302/149 IPC. For all these reasons we

reject the threshold contention of Mr. Arunachalam.

12. Coming now to the facts of the case, it cannot be

gainsaid that since the incident took place in the house of

the deceased at the dead of night, PWs. 1, 2 and 3, who were

members of his house hold, were the most natural and

probable witnesses. Further, the injuries sustained by them

in that night leaves no room for doubt that they were

present when the incident took place. As regards P.Ws. 4 and

5, their claim that they saw the incident cannot also be

doubted for they were the next door neighbours of the

deceased. The evidence of the above five witnesses, so far

as it relates to t he manner in which the incident took

place is consistent and cogent and does not suffer from any

infirmity. On the contrary, their evidence stands

corroborated by the following facts and circumstances :-

i) P.W.12, who held the post mortem examination upon the

body of the deceased, found ten injuries which, in his

opinion, could be caused by a hard substance like stick

or crow bar;

ii) P.W.14, the other doctor, who examined P.Ws. 1, 2, 3

and Gankidi Narsimha Reddy in the early hours of the

morning noticed a number of injuries on their persons

and, according to him, all those injuries could also be

caused by such weapons;

iii) the F.I.R. was lodged at the earliest available

opportunity and therein the substance of the

prosecution case finds place;

iv) blood stained earth, two crow bars and some broken

sticks were found in the front yard of the house of the

deceased; and

v) an unhinged broken doorleaf was found lying on the

floor.

From all these materials on record it must be said that

the concurrent findings of the Courts below that on the

fateful night a mob armed with crow-bars, sticks and other

weapons forcibly entered into the house of the deceased,

killed him and injured four members of his family who came

to his rescue, are unexceptional.

13. That brings us to the questions whether A1 to A5 and

A9, who re only before us in these appeals, were amongst the

miscreants and, if so, the nature of offences committed by

them. PWs. 1, 2 and 3 named A1 to A5 and A9 (besides others)

as the members of the mob and also gave out categorically

the parts played by them in the rioting and murder.

According to these witnesses when the deceased was dragged

to the front yard of the house, his wife intervened. A3 then

beat her with stick. When P.W.3 went to their rescue A2 also

b eat him with stick. In the meantime the deceased had

extricated himself from their clutches and ran into the

house but A1 to A3 went inside and dragged him to the front

yard again. Then, A1 beat him with a nagatipale on his head

and he fell down. A2 then beat him with crow bar on his

cheek and when P.W.1's wife intervened A9 beat her with a

stick. Their further evidence is that A1 to A3 and A5 beat

the deceased again and when P.W.1 tried to save him A4 heat

him with stick on his head. Lastly, the witnesses stated

that on being instigated by A1 other accused beat Narsimha,

when he came to their rescue. These witnesses also spoke

about the previous long standing enmity between their family

and the accused. PWs.4 and 5 fully supported their version

about the roles played by the above six accused persons. It

is of course true that there are some contradictions in

between their statement made in Court and before the police

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during investigation. Both the Courts below found those

contradictions minor and of no moment; and having gone

through them we are in complete agreement with the views so

expressed.

14. As noticed earlier, the High Court, while relying upon

the evidence of the above witnesses to uphold the conviction

of A1, rejected their evidence qua the other accused, only

so far as it related to their convictions under Section 148

and 302/149 IPC on the grounds, that without strict proof of

their specific overt acts they could not be convicted for

the above offences only on the omnibus statements of the

five eye witnesses about their culpability and that their

testimony regarding the overt acts of the other accused was

not supported by the medical evidence. In our considered

view, none of the grounds can be sustained.

15. The question as to wh at is required to be proved

against a person who is alleged to be a member of an

unlawful assembly came up for consideration before a four-

Judge Bench of this Court in Masalti vs. State of U.P. [1964

(8) SCR 133] and it answered the same with the following

words :

"While determining this question,

it becomes relevant to consider

whether the assembly consisted of

more persons who were merely

passive witnesses and had joined

the assembly as a matter of idle

curiosity without intending to

entertain the common object of the

assembly. It is in that context

that the observations made by this

Court in the case of Baladin v.

State of U.P. assume significance;

otherwise, in law, it would not be

correct to say that before a person

is held to be a member of an

unlawful assembly, it must be shown

that he had committed some illegal

overt act or had been guilty of

some illegal omission in pursuance

of the common object of the

assembly. In fact, Section 149

makes it clear 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; and that emphatically

brings out the principle that the

punishment prescribed by Section

149 is in a sense vicarious and

does not always proceed on the

basis that the offence has been

actually committed by every member

of the unlawful assembly."

(emphasis supplied)

16. The same principles were enunciated by this Court in

Lalji vs. State of U.P. [1989 (1) SCC 437] wherein it said :

"The two essentials of the section

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are the commission of an offence by

any member of an unlawful assembly

and that such offence must have

been committed in prosecution of

the common object of that assembly

or must be such as the members of

that assembly knew to be likely to

be committed. Not every person is

necessarily guilty but only those

who share in the common object.

The common object of the assembly

must be one of the five objects

mentioned in Section 141 I.P.C.

Common object of the unlawful

assembly can be gathered from the

nature of the assembly, arms used

by them and the behavior of the

assembly at or before scene of

occurrence. It is an inference to

be deduced from the facts and

circumstances of each case.

Section 149 makes every member of

an unlawful assembly at the time of

committing of the offence guilty of

that offence. Thus this section

created a specific and distinct

office. In other words, it created

a constructive or vicarious

liability of the members of the

unlawful assembly for the unlawful

acts committed pursuant to the

common object by any other member

of that assembly. However, the

vicarious liability of the members

of the unlawful assembly extends

only to the acts done in pursuance

of the common object of the

unlawful assembly, or to such

offences as the members of the

unlawful assembly knew to be likely

to be committed in prosecution of

that object. Once the case of a

person falls within the ingredients

of the section the question that he

did nothing with his own hands

would be immaterial. He cannot put

forward the defence that he did not

with his own hand commit the

offence committed in prosecution of

the common object of the unlawful

assembly or such as the members of

the assembly knew to be likely to

be committed in prosecution of that

object. Everyone must be taken to

have intended the probable and

natural results of the combination

of the acts in which he joined. It

is not necessary that all the

persons forming an unlawful

assembly must do some overt act.

When the accused persons assembled

together, armed with lathis, and

were parties to the assault on the

complainant party, the prosecution

is not obliged to prove which

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specific overt act was done by

which of the accused. This section

makes a member of the unlawful

assembly responsible as a principal

for the acts of each, and all,

merely because he is a member of an

unlawful assembly. While overt act

and active participation may

indicate common intention of the

person perpetrating the crime, the

mere presence in the unlawful

assembly may facten vicaric only

criminal liability under Section

149. It must be noted that the

basis of the constructive guilt

under Section 149 is mere

membership of the unlawful

assembly, with the requisite common

object or knowledge."

(emphasis supplied)

17. From the above judgments of this Court it is evident

that to ascertain whether a particular person shared the

common object of the unlawful assembly it is not essential

to prove that he committed some illegal overt act or had

been guilty of some illegal omission in pursuance of t he

common object. Once it is demonstrated from all the facts an

d circumstances of a given case that he shared the common

object of the unlawful assembly in furtherance of which some

offence was committed - or he knew was likely to be

committed - by any other person, he would be guilty of that

offence. Undoubtedly, commission of an overt act by such a

person would be one of the tests to prove that he shared the

common object, but it is not the sole test. Coming now to

the present case, the fact that at the dead of night a mob

of persons armed with various weapons forcibly trespassed

into the house of the deceased after breaking open the door,

clearly indicates that they had formed an unlawful assembly

with a common object to commit some offence and each of them

would be liable for the offence committed or knew likely to

be committed by any of the members of the mob. To ascertain

what was the common object of the above unlawful assembly,

we will advert later. Suffice it to say, at this stage, that

in the facts and circumstances of this case the six accused

(with whom only we are concerned in these appeals) would be

guilty for the offence committed by any other member of the

mob, in furtherance of the common object, without proof of

any overt act committed by them. We do not, however, wish to

dilate on this aspect of the matter any further as we find

the second ground canvassed by the High Court that the

ocular evidence regarding overt acts committed by A2 to A5

and A9 is not supported by medical evidence, is factually

incorrect.

18. As stated earlier the deceased sustained 10 injuries

(details of which we will refer to at a later stage)

including lacerations and abrasions and the doctor opined

that all those injuries could be caused by hard and blunt

weapon like crow-bar or stick. As regards the four injured,

we get from the evidence of P.W.14 that P.W.1 sustained four

injuries, P.W.2 and P.W.3 two each and G. Narsimha Reddy,

six. He opined that injury Nos. 1 and 6 found on the person

of Narsimha Reddy were grievous in nature and all other

injuries on his person and the injuries found on the persons

of the three witnesses were simple in nature. He further

opined that the injuries could be caused by blunt weapon

like stick. The injuries found on the person of the deceased

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as also the four injured fit in with the version of the eye

witnesses regarding the manner of assault by A1 to A5 and A9

and we are at loss to understand how the High Court

concluded that the medical evidence did not corroborate

their evidence.

19. The next question that requires an answer is what was

the common object of the unlawful assembly. Both the learned

counsel appearing for the accused submitted that considering

the nature of the injuries inflicted by the miscreants upon

the deceased, it could not be said that their common object

was to commit the murder. According to the learned counsel,

even if the entire prosecution case was believed the only

inference that could be drawn was that the accused persons

were guilty only of the offence under Section 325 for

causing grievous hurt with blunt weapons, read with Section

149 IPC. To appreciate this contention raised on behalf of

the appellants it will be necessary to refer to the injuries

sustained by the deceased. PW12, who held the post mortem

examination upon the deceased stated that he found the

following external injuries on his person :

"1. Laceration left cheek 3" x 1" x

1/2".

2. Abrasion left shoulders 2" x

1".

3. Laceration right leg 1" x 1" x

1/2".

4. Three abrasions on the left leg

each 1" x 1".

5. Laceration right frontal area 5"

x 1/2" x 1/2".

6. Laceration right parietal area

6" x 1" x 1".

7. Laceration occipital area 4" x

1/2' x 1/2".

8. Abrasion left lower chest 1" x

1"."

So far as internal injuries are concerned he stated

that on examination of the skull, he found fractures on the

right temporal bone, parietal bone and occiptal bone and the

total length of the fracture was 7". He further stated that

subarachnoid haemorrhage was present. He opined that the

head injury alone was sufficient to cause the death of the

deceased.

20. If the injuries were to be considered in isolation we

might have persuaded ourselves to give a second thought to

the above submission of the learned counsel but when the

injuries are considered in the context of the facts, that

there was bitter enmity between the parties, that at an

unearthly hour the miscreants armed with various weapons

like crow-bars and sticks trespassed into the house of the

deceased after breaking open the door, dragged him out of

the bed room to the front yard and beat him to death, and

that whoever came to his rescue was beaten up, the only

conclusion that can be drawn was that they formed the

unlawful assembly with the common object of committing

murder of the deceased and as soon as their objective was

achieved they left the place.

21. It was also contended by Mr. Arunachalam that since,

admittedly, the injury inflicted by A1 caused the death of

the deceased and the injuries inflicted by others on his

person were simple in nature, it could not be conclusively

said that A2 to A5 and A9 shared with A1 a common object to

commit the murder. In other words, according to the learned

counsel, committing the murder was the individual act as A1

and not in furtherance of the common object of the unlawful

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assembly. We are unable to accept the above contention for

the reasons mentioned earlier. That apart, the manner in

which the incident took place clearly proves that even if we

were to assume that A2 to A5 and A9 did not share the common

object of committing the murder, they, being members of the

unlawful assembly certainly knew that the murder was likely

to be committed by A1 in prosecution of the common object so

as to make them liable under Section 302 read with, the

second part of Section 149 IPC. In either view of the

matter, therefore, we are of the opinion that the High Court

was not at all justified in acquitting A2 to A5 and A9 of

the charges under Sections 148 and 302/149 IPC.

22. On the conclusions as above, we dismiss the appeal

preffered by Edla Bhoomreddy (A1), son of Gopal Reddy, and

allow the appeal of State of Andhra Pradesh and restore the

convictions and sentences recorded against Thakkidi Ram

Reedy (A2), Kasam Kanka Reedy (A3), Mothey Narayana Reddy

(A4), Gunukulla Malla Reddy (A5) and Edla Bhoom Reedy (A9),

son of Narsimha Reedy, by the trial court under Section 148

and 302/149 IPC. A2 to A5 and A9 are directed to surrender

to their bail bonds to serve out the sentence imposed by the

trial Court.