State Of Maharashtra vs Kashirao & Ors

On 27.12.1987 Subhash Warankar (hereinafter referred to as the

'deceased') lost his life and Pundlik (PW-1) was seriously injured.

Allegedly, the respondents were the assailants. The Additional Sessions

Judge, Amravati found them guilty of offences punishable under Sections

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.

Factual scenario according to the prosecution is as follows:

Relationship between Pundlik (PW-1) and respondent-accused No.1

Kashirao was strained since a long time. Originally, Pundlik (PW-1)

used to stay in a village Dhamori but he shifted his residence to

another village along with family members about one year before the

date of incident. 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 and 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 father-in-law of Gangadhar

(PW-2) who was the Sarpanch of the village. They rested there for some

time. Thereafter, PW-1 went to the weekly market along with Jayawant

(PW-5), Charandas (PW-6) and the deceased. Father of PW-1 met him at

the market and PW-1 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-1 told his mother to prepare meat for his

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.1 is at a short distance from the house of PW-1. All the accused

persons came together and assembled near the house of PW-1 and they

were all armed with deadly weapons. They proceeded towards the house

of PW-1 with the common object of killing PW-1 and his friends.

At about 6.30 p.m. accused Kashirao along with other accused persons

and the deceased accused formed an unlawful assembly to cause death of

PW-1 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-1)

and threatened to kill him and his friends. When the 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-1, pelted stones

and 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

PW-1 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-1, they shouted that they had killed one person from

Amravati, others had run away and now they would kill PW-1. PW-1 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 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-1 went to

the place where PW-1 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 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.1 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.

The prosecution sought to prove the assaults on the deceased and

PW-1 with the testimonies of PWs 1, 2, 5, 6 and 7. PWs 1, 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 legality of the judgment passed by the trial Court. By the

impugned judgment, the High Court held that only respondent No.1

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 PW-1, 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 149 IPC. It

was also stipulated that sentences in respect of accused Kashirao were

to run 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.1 Kashirao was

established and 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 1, 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 having accepted

the fact that blows were given by a deadly weapon by accused-respondent

No.1 Kashirao, there was no reason to hold him guilty of offence

punishable under Section 326 IPC and not Section 302 IPC. The fact

that the accused persons were armed with deadly weapons, chased the

deceased and assaulted him and came back to assault PW-1 has been

established by clear, cogent and credible evidence. There is no scope

for entertaining any doubt about the applicability of Section 149 IPC.

Additionally, merely because PW-1 was the victim intended, does not

take away the effect of the common 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 rigour of Section 149

IPC. 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-1 was the intended victim,

Section 149 cannot be applied. Even if it is accepted for the sake of

arguments that the 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 so-called 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 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 1, 5 and 7 is cogent and credible. Merely because

there was some animosity between PW-1 and accused persons as claimed by

the prosecution, that cannot be a ground to discard his evidence even

if it is credible and cogent.

Additionally, the evidence of PWs. 5 and 7 more than strengthen

the evidence of PW-1. 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 PW-1. 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 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 of the common

objects, as specified in Section 141. It cannot be laid down 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 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 common 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 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 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 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 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 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, 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 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 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 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 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 members 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 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 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. 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 obliterated. In every case 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, offences

which the parties knew to be likely committed in the prosecution of the

common object. (See Chikkarange Gowda and others v. State of Mysore :

AIR 1956 SC 731.)

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was

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 Lalji v. State of U.P. (1989 (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 presence in 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 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.1 alone. The trial Court had

rightly convicted the accused persons under Section 302 IPC. 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-1 to be

intended victim, Section 149 IPC cannot be invoked for deceased's

murder. This plea has no legal foundation, when logic of Section 301

IPC is applied. Same reads as follows:

"Section 301- Culpable homicide by causing death of

person other than person whose death was intended-

If a person, by doing anything which he intends or

knows to be likely to cause death, commits culpable

homicide by causing the death of any person, whose

death he neither intends or knows himself to be

likely to cause, the culpable homicide committed by

the offender is of the description of which it would

have been if he had caused the death of the person

whose death he intended or knew himself to be likely

to cause."

The provision is founded on a doctrine called by Hale and Foster,

a transfer of malice. Others describe it as a transmigration of motive.

Coke calls it coupling the event with the intention and the end with

the cause. If the killing takes place in the course of doing an act

which a person intends or knows to be likely to cause death, it ought

to be treated as if the real intention of the killer had been actually

carried out.

Though Section 149 IPC may not in a given case apply to a case

covered by Section 301, it would depend upon the factual background

involved. No hard and fast rule of universal application can be

invoked. In the facts of present case, as adumbrated supra, the

essential ingredients of Section 149 have been amply established.

Though initially the malice was focused on PW-1, the fact that all the

accused chased and assaulted the deceased is a case of transfer of

malice. The same was again pursued by coming back and attacking PW-1.

So far as the assaults on PW-1 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.1 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; (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 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 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 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. 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.