Joseph vs State Rep. By Inspector Of Police

Page No. 1 of 17 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, 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.

Page No. 2 of 17 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

Page No. 3 of 17 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

Page No. 4 of 17 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 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. Page No. 5 of 17

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 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

Page No. 6 of 17 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.

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

Page No. 7 of 17 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]

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

Page No. 8 of 17 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 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).

Page No. 9 of 17

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 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

Page No. 10 of 17 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

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

Page No. 11 of 17 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 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

Page No. 12 of 17 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 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

Page No. 13 of 17 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 charge). Though the conviction of the

accused Joseph under Section 302 IPC read with Section 149 IPC

Page No. 14 of 17 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 147 IPC) are set aside.

Page No. 15 of 17

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.

Page No. 16 of 17

24. 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. 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. 17 of 17