ST A TE OF MAHARASHTRA

KASHIRAO AND ORS.

AUGUST 27, 2003

[DORAISWAMY RAJU AND ARIJIT PASA Y AT, JJ.]

Penal Code, I860; Ss. 141, 147, 148, 301; 302, 307, 452 .r/w Section 149:

Accused assaulted the deceased and another-One of them died and other seriously injured-Trial Court convicted and sentenced them for life imprisonment-On appeal, High Court held them liable for committing offence under Section 326 and altered their conviction-Held: Since evidence of eyewitnesses cogent and credible, it cannot be discarded on the ground of animosity D between the accused and the victim-Common object of unlawful assembly normally be formed amongst members by an express agreement-It could be modified/altered/abandoned at any stage-It may be lawful but subsequently become unlav.ful-Direct evidence generally not obtainable-Wrongful intention could be gathered from the acts of the accused-Since accused armed with deadly weapons inflicted serious injuries on the victims which E resulted in the death of one of them, the Trial Court rightly convicted them ul s 302-Section 326 not attracted-Accused intended to kill PW 1 but killed the deceased-However, it does n9t change the liability <>fthe accused-Hence, Section 149 applicable-Taking into consideration the nature of injuries inflicted on the victim and the manner of assault, trial Cour.t rightly convicted F the main accused under Section 307 as we/I-Evidence Act, 1872.

Common object and common intention-Distinction between-Discussed

Appellate Jurisdiction of Supreme Court-Interference in the appeal against acquittal-Held: since lhe judgment of the High Court suffered from G legal infirmities, interference not only necessary but highly desirable.

Words and Phrases:

'Jn prosecution of the common object', 'knew '-Meaning of-In the context of Section 149 /PC

STA TE OF MAHARASHTRA v. KASHIRAO 1061

According to the prosecution, there was stralned relationship A between PWl and respondent-accused No.I. On the fateful day, PWl invited his friends including the deceased for a feast when the accused persons, seven in number, armed with deadly weapons assembled in front of his house with the common object of killing PWl. The accused hurled stones at the house of PWl; the deceased being afraid of the assaults tried B to escape, the accused followed him and assaulted him with deadly weapons and thereby committed his murder. Thereafter, they also chased and assaulted PWl, injured him seriously and ran away. Mother of PWl took him to a nearby Police Station, FIR was lodged and he was hospitalized.

The police investigated the matter and submitted charge-sheet. The trial Court found the accused persons guilty of offences punishable under C Sections 147, 148, 302, 307 and 452 r/w Section 149 IPC and sentenced them to undergo imprisonment for life. In appeal, High Court found all the accused guilty of the offence punishable under Section 326 IPC r/w Section 147 IPC. Hence the present appeal by the State.

It was contended for the appellant-State that the High Court D discarded the evidence of eye-witnesses/applicability of Section 149 IPC without assigning any reasons; that the fact that the accused were armed with deadly weapons assaulted and murdered the deceased and also assaulted PWl was established by clear, cogent and credible evidence, thus Section 149 IPC was applicable; and that merely because PWI was the E intended victim, it does not take away the liability of the accused for committing the crime in furtherance of the common object of the assembly.

On behalf of the respondents, it was submitted that since P\\.1 was the intended victim, Section 149 could not be applied; that the evidence of eye-witnesses lack acceptability/creditability; and there is limited scope F of interference in the appeal against acquittal. ·

Allowing the appeal, the Court

HELD: 1.1. Evidence of Prosecution Witnesses is cogent and credible. G Merely because there was some animosity between PWl and accused persons, that cannot be a ground to discard his evidence when it is credible and cogent. The evidence of Prosecution Witnesses more than strengthen the evidence of PWl. They have graphically described the scenario as to how the accused persons were armed with weapons, pelted stones, chased the deceased, assaulted him, came back and assaulted PWl. That being H

A the position, the prosecution version .has been amply established.

11067-C-:-DI

1.2. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may .be formed at any stage by all or a few members of the assembly and th~ other B members may just join and adopt it. Once formed, it need not contii:iue

to.be the same. It may be modified or altered or abandoned at any stage.

11068-BI

1.3~ The expression 'in prosection of common object' as appearing C in Section 149 have to be strictly construed as equivalent to 'in order to

ttain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter, beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed D in .prosecution of their common object may vary not only according to the information at his command, b.ut also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly. 'Common object' is different from a 'common intention' as it E does not require a prior concert and a common meeting of minds before the attack. (1068-C, D, E)

1.4. The common object of the unlawful assembly at a particular stage of the incident is essentially a question of fact to be. determined, keeping in view the nature of the assembly, the arms carried by the F members, and the behaviour of the members at or near the scene of the incident. It is not necessary. under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. An object is entertained in the human mind, and it being merely a mental attitude no direct evidence can be available G and, like intention, has generally to be gathered from the act which the person commits and the result therefrom: The word 'knew' used in the second branch of Section 149 implies something more than a possibility ~· and it cannot be made to bear the sense of 'might have been known'.

Positive knowledge is necessary, when an offence is committed in prosecution of the common object, it would generally be an offence which H the members of the unlawful assembly knew was likely to be committed

STATE OF MAHARASHTRA v. KASHIRAO 1063

in prosecution of the common object. That, however, does not make the A converse proposition true. 11068-G, H; 1069-E, F, GI

Chikkarange Gowde and Ors. v. State of Mysore, AIR (1956) SC 731 ; State of U.P. v. Dan Singh and Ors., 119971 3 SCC 747 and Gangadhar Behera and Ors. v. State of Orissa, 120021 8 SCC 381, relied on.

2.1. In the instant case, all the accused persons are liable in terms of Section 149 IPC. Looking at the nature of the injuries, weapons used and the manner of assaults, there was no reason to apply Section 326 IPC in case of accused-respondent No. I alone. The trial Court had rightly convicted the accused persons under Section 302 IPC. The gruesome c nature of the attack on the deceased and PWl, the other victim was amply demonstrated by the injuries noticed on the body of the deceased and PWl.

(1070-D, El

2.2. The plea that when prosecution version accepted PWI to be intended victim, Section 149 IPC cannot be invoked for deceased's murder D has no l<:gal foundation in the light of the provisions under Section 301 IPC. The provision is founded on a doctrine called transfer of malice. 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. (1070-E-F; I071-AI E

2.3. Though Section 149 IPC may not 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 the present case, the essential ingredients of Section 149 have been amply established. Though initially the malice was focused on PWI, the fact that F 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 PWI.

11071-B, Cl

2.4. The nature of the assaults and the injuries found on PWl clearly G bring in application of Section 307 IPC. The trial Court was justified in convicting accused-respondent No. I under Section 307 I PC. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. I 1071-GI

2.5. It is true that when two views are possible and if one view has H

A been adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from legal infirmities and application of legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. Hence, the judgment of the High Court is set B aside and that of the trial Court restored. 11071-H; 1072-A-BI

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 124 of 2003.

From-the Judgent and Order dated 23.7.2002 of the Bombay High C Court in Crl. A. No. 310 of l 997.

Ravindra K. Adsurc or the Appellant.

M.R. Daga, V.B. Palorkar and Dr. Kailash Chand for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J. On 27 .12.1987 Subhash Warankar (hereinafter referred to as the 'deceased') lost his life and Pundlik (PW-I) was seriously injured. Ailegedly, the respondents were the assailants. The Additional Sessions Judge, Amravati found them guilty of offences punishable under Sections E 302, 307, 147, 148, 452 read with Section 149 of the Indian Penal Code,

1860 (in short the 'IPC'). Each was sentenced to undergo imprisonment for life and three years for the offences relatable with Section 302 read with Section 149 and Section 307 read with Section 149 IPC respectively. One person, namely, Mohan was tried along with the respondents. Since he died during the pendency of the trial the matter was abated so far as he is concerned.

F Factual scenario according to the prosecution isas follows: _

Relationship between Pundlik (PW-I) and respondent-accused No. I Kashirao was strained since a long time. Originally, Pundlik (PW-I) used to stay in a village Dhamori but he shifted his residen_ce to another village along G with family members about one year before .the date of incidnt. On the date of incident when Gangadhar (PW-2), Jayawant (PW-5) and Charandas (PW-

6) and the deceased were going.to_ village Dhamori in an auto-rickshaw, PW- 1 was standing and he enquired from them as to where they were going nd when he learnt that they were going to Dhamori he also accompanied them and all of them reached there at about 5.00 p.m. They went to the house of H

father-in-law of Gangadhar (PW-2) who was the Sarpanch of the village. A They rested there for some time. Thereafter, PW-I went to the weekly market along with Jayawant (PW-5), Charandas (PW-6) and the deceased. Father of PW-I met him at the market and PW- I told his father to purchase mutton so that he could entertain his friends at night. Thereafter, he along with his friends returned to his house. PW-I told his mother to prepare meat for his B friends and asked PWs 5 and 6 to go to the house of Raghunath (PW-3) and invite Gangadhar (PW-2) for the feast. House of accused-respondent no. I is at a short distance from the house of PW- I. All the accused persons came together and assembled near the house of PW-I and the)' were all anned with deadly weapons. They proceeded towards the house of PW- I with the common object of killing PW-I and his friends. At about 6.30 p.m. accused Kashirao C along with other accused persons and the deceased accused fonned an unlawful assembly to cause death of PW-I and his friends. Accused No.1-Kashirao was armed with sword, Mohan was armed with an axe and other accused persons were armed with lathis. All the accused persons hurled stones at the house of Pundlik (PW-I) and threatened to kill him and his friends. When the D deceased tried to escape from the rear door being afraid of assaults, the accused persons chased him and assaulted him with deadly weapons and committed his murder. Thereafter, they came back to the house of PW- I, pelted stones -8Q(I when he ran away to save his life, the accused persons chased him and gave blows. As a result of the assaults given, left arm of PW- 1 was severed and injuries were caused on his right arm. Another friend of E PW-I Jayawant (PW-5) was also chased, but he successfully managed to escape by getting into a State transport bus. On coming back to the house of PW-I, they shouted that they had killed one person from Amravati, others had run away and now they would kill PW-I. PW-I tried to save himself by throwing tiles from the roof but he did not succeed and therefore, tried to run away from the house by jumping out from the roof. However, accused chased F him and he was assaulted. Assuming him to be dead, they returned to the village. They also carried the severed arm and showed it to his mother and ran away. Mother of PW- I went to the place where PW- I was lying, gave him water and took him to Kolhapur Bus stand and then to Kolhapur police station. He was later on taken to the hospital. His statement was recorded and G the FIR was registered. The weapons and blood stained swords were collected.

The accused persons were arrested and the charge sheet was placed. Mohan is the son of accused No. I Kashirao, Mahadeo (A-4) and Sahadeo (A-5) are real brothers and Ganesh (A-7) is the son of Ajab (A-6). All are residents of village Dhamori.

A The prosecution sought to prove the assaults on the deceased and PW- 1 with the testimonies of PWs I, 2, 5, 6 and 7. PWs I, 5 and 7 were stated to be eye-witnesses: Placing reliance on their version, the conviction was made and sentence was awarded as aforesaid.

The respondents preferred an appeal before the High Court questioning B legality of t_he judgment passed by the trial Court .. By the impugned judgment, the High Court held that only respondent No. I Kashirao was guilty of offence punishable under Section 326 IPC. in respect of the assault on deceased and other respondents were not. guilty. The High Court came to the conclusion that the elements of Section 149 were not established. For the assaults on C PW-I, it was held that the case was not covered by Section 307 IPC as held by the trial Court but by Section 326 IPC. All the respondents were held guilty .of offence punishable under Section 326 IPC read with Section 147 IPC. Sentence of 3 years RI and fine imposed were maintained,· though conviction was altered from Section 307 read with Section I49 IPC. It was also stipulated that sentences in respect of accused Kashirao were to run D consecutively and not concurrently.

Coming to the accusations under Section 302 IPC, the High Court was of the view that the deceased was not the intended victim, and only the assault on his leg by accused-respondent No.I Kashirao was established and E nothing else. That being not a very vital part the case was not covered under

Section 302 IPC and only Section 326 IPC was applicable.

In support of the appeal, learned counsel for the State submitted that the High Court's judgment cannot stand scrutiny because practically no reason. has been given to discard the prosecution evidence, more particularly, the evidence of eye-witnesses I, 5 and 7 who have. described in detail the roles played by each of the accused respondents. Further, the High Court has not even indicated any reason to show how Section 149 IPC was not applicable.

After havig accepted. the fact that blows were given by a deadly weapon by accused-respondent No. I Kashirao, there was no reason to hold him guilty of offence punishable under Section 326 IPC and not s:ctiori 302 IPC. The fact G that the accused persons were armed with deadly weapons, chased the d_eceased and assaulted him and came back to assault PW-I has been established by clear, cogent and credible evidence. There is no scope for entertaining any do.ubt about the.applicability or' Section I49 IPC. Additionally, merely because PW- I was the victim intended; does not take away the effect of the common H . object to do an illegal act. Mere fact that instead of the original intended

victim, somebody else was also assaulted and killed does not take away the A rigour of Section I49 !PC. Looked at from any angle, judgment of the High Court is unsustainable.

Per contra, learned counsel for the accused-respondents submitted that prosecution version being that PW- I was the intended victim, Section I 49 cannot be applied. Even if it is accepted for the sake of arguments that the B deceased was chased and assaulted, the assailant alone can be convicted and others cannot be roped in by application of Section 149 IPC. Evidence of socalled eye-witnesses lacks acceptability and credibility. It does not establish what role, if any, played by the accused persons. None of them could have seen the various assaults allegedly made. It is also submitted that view taken C by the High Court is a plausible one and considering the limited scope of interference in an appeal against acquittal there should not be any interference.

Rival contentions need to be carefully weighed.

Evidence of PWs I, 5 and 7 is cogent and credible. Merely because D there was some animosity between PW- I and accused persons as claimed by the prosecution, that cannot be a ground to discard his evidence when if it is credible and cogent.

Additionally, the evidence of PWs. 5 and 7 more than strengthen the evidence of PW-I. They have graphically described the scenario as to how E the accused persons were armed with weapons, pelted stones, chased the deceased, assaulted him, came back and assaulted PW-I. That being the position, the prosecution version has been amply established.

The important question is as to applicability of Section 149 IPC to the facts of the case.

A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object G and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section

149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more H of the common objects. as specified in Section 141. It cannot be laid down

A as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The B word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be cominon to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other C members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object D may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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 E also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.

'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It F is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the G members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, H the arms carried by the members, and the behaviour of the members at or

near the scene of the incident. It is not necessary under law that in all cases A of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly B which, at its commencement or even for some time thereafter, is lawful, may

~ ;. subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.

Section 149, IPC consists of two parts. The first part of the section C means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish 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. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet D fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the memhers of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued E is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom.

Though no hard and fast rule can be laid down under the circumstances from F which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. G When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or H

A obliterated. In every C; ise it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, B offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and Ors v. State of Mysore,

AIR (1956) SC 731.)

In State of U.P. v. Dan Singh and Ors., [1997) 3 SCC 747 it was C observed that it. is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to L<ilji v. State of U.P. [198 1 SCC 437 where it was observed that:

"while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presene in D the unlawful assembly may fasten vicariously criminal liability under Section 149".

This position has been elaborately stated by this Court in Gangadhar Behera and Ors. v. State of Orissa, [2002) 8 SCC 381.

Above being the position in law, when the facts are applied it becomes clear that all the accused person are liable in terms of Section 149 lPC.

Looking at the nature of the injuries, weapons used and the manner of assaults, there was no reason to apply Section 326 IPC in case of accused-respondent No. I alone. The trial Court had rightly convicted the accused persons under

Section 302 lPC. The gruesome nature of the attack is amply demonstrated by the injuries noticed on the body of the deceased. One other aspect which was emphasized was that when prosecution version accepted PW- I 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 lPC 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 culpabl~ 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 B 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 30 I, 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 C Section 149 have been amply established. Though initially the malice was focused on PW-I, 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- I.

So far as the assaults on PW- I is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused-respondent No. I under Section 307 IPC. The essential ingredients required to be proved in the case of an offence under Section 307 are:-

(i) That the death of a human being was attempted;

(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;

(iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; F

(a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having G no excuse for incurring the risk of causing such death or injury.

In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the H

A weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has be.en adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when th~ judgment suffers from legal infirmities and application of B legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence.

S.K.S.

Appeal allowed.

"~ ) . , .