REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  413 OF 2012

JOSEPH                   …Appellant Versus

STATE, REP. BY INSPECTOR OF POLICE ....Respondent

With CRIMINAL APPEAL NO.585 OF 2013

SAHAYAM AND ORS.    ....Appellants  Versus

STATE, REP. BY INSPECTOR OF POLICE AND ANR.   ....Respondents

And  CRIMINAL APPEAL NO.662 OF 2016

EDWINSON                     …Appellant Versus

STATE, REP. BY INSPECTOR OF POLICE AND ORS.      ....Respondents

J U D G M E N T

R. BANUMATHI, J.

These appeals arise out of the judgment dated 10.02.2011 passed

by Madras High Court  at  Madurai  Bench dismissing Criminal  Appeal

No.519 of 2002 thereby affirming the conviction of the appellants under

Page No.1 of 17

Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147,

323  read  with  Section  149  IPC  and  Section  326  IPC  and  also  the

sentence of imprisonment imposed upon each of them.

2. Briefly  stated  case  of  prosecution  is  that  on  12.01.1994,  PW2-

Anthony Mududhagam, deceased Luis John Kennedy and Raja came to

attend funeral of one Jesu (PW2's cousin).  While they were standing

near Sahayam's (A3) house at about 3.05 p.m., Jesu Adimai (A1)(since

dead),  Selvaraj  (A2)  and  Sahayam  (A3)  armed  with  country  made

bombs in their hands, Selvam (A4) and Antony Innasi (A5) armed with

sickles,  Charles  (A6),  Jerone  (A7),  Edwinson  (A8),  Raj  (A9)  and

Elizabethan  (A10)  with  sticks  and  Joseph  (A11)  came  there  and

confronted the deceased Kennedy, PW2 and Suresh (PW1) [who just

came there to  see his  father  PW2].   Joseph (A11)  instigated all  the

accused to attack on them.   Selvam (A4) attacked PW1 with sickle on

the left shoulder.  Jesu Adimai (A1) threw one country bomb which hit

the forehead of the deceased and the deceased fell down. Selvaraj (A2)

threw the bomb which hit the right leg of Raja.  Sahayam (A3) also threw

a bomb which has fallen on the ground.  Antony Innasi (A5) attacked

PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and PW2

indiscriminately  causing injuries to them.  On seeing the by-standers

coming  towards  the  spot,  the  accused  ran  away  from  the  scene.

Page No.2 of 17

Thereafter  Johnson  (PW-3)  hired  a  tempo  and  took  the  injured  to

Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy

succumbed to injuries.   

3. Based  on  the  statement  of  Raja  (Ex.P-16),  FIR  (Ex.P-9)  was

registered in Crime No.23/94 under Sections 147, 148, 326, 307 and

302 IPC as well as under the Indian Explosives Act.  PW9-Krishnan Nair,

Inspector in Charge had taken up the initial investigation and prepared

rough sketch (Ex.P-10) of the place of occurrence and seized articles

viz.,  blood stained earth  (M.O.6)  and sample earth  (M.O.7)  from the

scene  of  crime  and  conducted  the  inquest  (Ex.P11).   PW6-Dr.

Kutralingam conducted autopsy on the body of the deceased and noted

"lacerated injury with burnt out black skin margins over the head both

ocular areas;  both eyes found to be missing;  Face and forehead was

seen seriously disfigured."  PW6-Dr. Kutralingam opined that "the death

was due to head injuries and the same could have been caused by

explosion  of  bomb"  and  issued  post-mortem  certificate  (Ex.P-6).  On

15.01.1994,  PW12-Ganesan-Inspector  of  Police,  took  up  further

investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at

about 04:45 a.m.  Confession statement (Ex.P3) recorded from Selvam

(A4) which led to recovery of sickle with wooden handle (M.O.2) and

sickle  with  iron  handle  (M.O.3).   On  completion  of  investigation  and

Page No.3 of 17

submission  of  final  report  on  08.11.1995,  all  the  accused  were

remanded to judicial custody.  

4. To bring home the guilt of the accused, prosecution has examined

witnesses (PWs 1 to 12) and marked nineteen exhibits (Ex.P-1 to Ex.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  upon  them,  the  accused  preferred

appeal before the High Court which came to be dismissed by the High

Court by the impugned judgment.

5. Taking  us  through  the  evidence  and  the  impugned  judgment,

learned counsel for the appellants submitted that  the prosecution has

failed to prove the common object of the unlawful assembly to cause the

Page No.4 of 17

death of deceased Kennedy that the accused acted in furtherance of the

common object. It was contended that the appellants should not have

been convicted for causing murder of Kennedy with the aid of Section

149  IPC.  The  learned  counsel  emphasized  that  the  prosecution  has

failed to prove existence of common object of the unlawful assembly and

that the appellants knew that death of Kennedy was likely to be caused

by the unlawful assembly and therefore, the conviction of the appellants

under  Section  302  IPC  with  the  aid  of  Section  149  IPC  cannot  be

sustained.

6. Per contra, learned counsel appearing for the State submitted that

from  the  evidence  adduced  by  the  prosecution  and  the  attending

circumstances of the case, prosecution has clearly proved the existence

of common object and the courts below rightly convicted the accused

under Section 302 IPC with the aid of Section 149 IPC.

7. We  have  considered  the  rival  contentions  and  perused  the

impugned judgment and materials on record.  

8. The question falling for consideration is whether the prosecution

succeeded  in  proving  the  existence  of  common  object  amongst  the

accused persons and whether the accused persons acted in prosecution

of the common object and that the accused persons knew that the death

was likely to be committed, to convict the accused under Section 302

Page No.5 of 17

IPC with the aid of Section 149 IPC.

9. Before we consider the testimony of the witnesses, let us consider

the requirements for invoking the vicarious liability under Section 149

IPC.  Section 149 IPC consists of two parts:

 The  first  part  of  the  section  means  that  there  exists common object and that the offence has been committed in prosecution  of  the  common  object.   In  order  that  the offence may fall  within the first part, the offence must be connected  immediately  with  the  common  object  of  the unlawful assembly of which the accused was member.

 The  second  part  of  the  section  means  that  even  if  the offence  committed  is  not  in  direct  prosecution  of  the common  object  of  the  assembly,  it  may  yet  fall  under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.

What  is  important  in  each  case  is  to  find  out  if  the  offence  was

committed to accomplish the common object of the assembly or was the

one which the members knew to be likely to be committed.  Once the

court finds that the ingredients of Section 149 IPC are fulfilled, every

person who at the time of committing that offence was a member of the

assembly has to be held guilty of that offence. After such a finding, it

would  not  be  open  to  the  court  to  see  as  to  who  actually  did  the

offensive act nor would it be open to the court to require the prosecution

to prove which of the members did which of the above two ingredients.

Before recording the conviction under Section 149 IPC, the essential

ingredients of Section 141 IPC must be established.

Page No.6 of 17

10. Scope of  two  parts  of  Section  149  IPC has  been explained  in

Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003)

2 SCC 257, this Court has explained Section 149 and held as under:

"14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly  knew to  be  likely  to  be  committed  in  prosecution  of  that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence.  The two clauses of  Section 149 vary in  degree of  certainty.  The first  clause contemplates  the  commission  of  an  offence  by  any  member  of  an unlawful  assembly  which  can  be  held  to  have  been  committed  in prosecution of the common object of the assembly. The second clause embraces  within  its  fold  the  commission  of  an  act  which  may  not necessarily be the common object of the assembly, nevertheless, the members  of  the  assembly  had  knowledge  of  likelihood  of  the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of  the  commission of  yet  another  offence,  the knowledge whereof is capable of being safely attributable to the members of the unlawful  assembly.  In  either  case,  every  member  of  the  assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the  offence  would  not  necessarily  enable  the  court  to  draw  an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed,  though  not  impossible,  to  collect  direct  evidence  of  such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual  commission of  the crime.  Unless the applicability of Section 149 — either clause — is attracted and the court is convinced, on  facts  and  in  law,  both,  of  liability  capable  of  being  fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held  vicariously  liable  for  the  said  criminal  act......  "  [underlining added]

Page No.7 of 17

The same principles have been reiterated in  State of Punjab v. Sanjiv

Kumar alias Sanju and Ors. (2007) 9 SCC 791.

11. Creation  of  vicarious  liability  under  Section  149  IPC  is  well

elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of

Bihar (1989) 3 SCC 5, this Court held:

"8.  ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly  knew to  be  likely  to  be  committed  in  prosecution  of  the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such  as  every  member  of  that  assembly  knew  to  be  likely  to  be committed. This section creates a specific offence and makes every member of  the unlawful  assembly liable  for  the offence or offences committed  in  the  course  of  the  occurrence  provided  the  same was/were committed in prosecution of the common object or was/were such  as  the  members  of  that  assembly  knew  to  be  likely  to  be committed. Since this section imposes a constructive penal liability, it must  be  strictly  construed  as  it  seeks  to  punish  members  of  an unlawful  assembly  for  the  offence  or  offences  committed  by  their associate  or  associates  in  carrying  out  the  common  object  of  the assembly......" [underlining added]

The same principles  were reiterated  in  paras (26)  and  (27)  in  Daya

Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav

and Ors. v. State of Bihar (2011) 5 SCC 324.

12. Whether  the  members  of  the  unlawful  assembly  really  had  the

common object to cause the murder of the deceased has to be decided

in the facts and circumstances of each case, nature of weapons used by

Page No.8 of 17

such  members,  the  manner  and  sequence of  attack  made  by  those

members  on  the  deceased  and  the  circumstances  under  which  the

occurrence took place. It is an inference to be deduced from the facts

and circumstances of each case (vide Lalji  and Ors. v.  State of  U.P.

(1989) 1 SCC 437;  Ranbir Yadav v. State of Bihar  (1995) 4 SCC 392;

Rachamreddy Chenna Reddy and Ors. v. State of A.P.  (1999) 3 SCC

97).

13. PW-1-Suresh  and  deceased  Kennedy  are  the  sons  of  PW-2

Anthony Muduthagam.  There is a family dispute between PW-2's family

and Jesu Adimai (A1) in respect of laying the fishing net in the sea.  On

12.01.1994,  at  about  03.00  p.m.,  PW-2-Anthony  Muduthagam,

deceased Kennedy and injured person Raja went to attend the funeral of

PW-2's cousin Jesu.  While they were talking to one another, on the

exhortation of Joseph (A11), the accused party attacked the complainant

party.  The occurrence started on the eastern side of the church and in

front of the house of Sahayam (A3).  

14. There are only about 350 houses in Perumanal village and most of

them  are  fishermen.   In  the  village,  there  were  two  factions  who

assembled to attend the funeral of Jesu.  There was no common object

among  the  accused  as  only  Joseph  (A11)  had  enmity  with  PW-2's

Page No.9 of 17

family.  Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed

with  bombs;  Selvam  (A4)  and  Antony  Innasi  (A5)  were  armed  with

sickles; and A6 to A10 were armed with sticks.  On the exhortation of

Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead

of deceased Kennedy and he fell down.  Selvam (A2) threw the country

bomb which hit  the right  ankle of  Raja causing injuries to him.  The

bomb hurled by Sahayam (A3) fell on the ground and exploded.  The

deceased died of head injuries, fracture of frontal neck and both eyes

found missing.   PW-6-Dr.  Kutralingam opined that  the injuries on the

deceased could have been caused by hurling of bombs.  The fact that

accused Nos. 1 to 3 carrying the bombs, gives indication that they had

the  common  intention  to  cause  the  death  of  the  complainant  party.

Selvam (A4) attacked PW-1-Suresh with aruval on the left shoulder and

Antony Innasi (A5) attacked    PW-2-Anthony Muduthagam on the left

shoulder and accused Nos. 6 to 10 attacked the complainant party with

sticks.  There is no evidence to prove that the accused Nos. 1 to 11 had

any common object to commit the murder of Kennedy which activated all

of them to join in furtherance of the common object.

15. As noted earlier,  first  part  of  Section 149 IPC states about  the

commission of an offence in prosecution of the common object of the

Page No.10 of 17

assembly whereas the second part takes within its fold knowledge of

likelihood  of  the  commission  of  that  offence  in  prosecution  of  the

common object. In the facts and circumstances of the case, we are of

the  view  that  the  prosecution  has  not  proved  the  existence  of  the

common  object  amongst  the  accused  and  that  all  of  them acted  in

furtherance of the common object to invoke the first part of Section 149

IPC.  

16. Let  us consider whether the act  of  the accused falls  under the

second part of Section 149 IPC. As members of the unlawful assembly,

whether  the accused knew that  the offence of  murder  is  likely  to  be

committed. It is a matter of evidence that Sahayam's house is situated

next  to  the house of  Jesu,  for  whose funeral,  the two factions have

assembled. Accused Nos. 4 to 10 may not have had the knowledge that

Jesu Adimai (A1),  Selvaraj  (A2) and Sahayam (A3) were armed with

bombs and that the murder of Kennedy was likely to be committed.  On

the exhortation of Joseph (A11), the accused seem to have individually

reacted.  There is no definite finding of the High Court that the common

object of the assembly was to commit the murder or that the accused

persons  had  knowledge  that  the  offence  of  murder  was  likely  to  be

committed and hence, the conviction of the accused Nos. 4 to 10 under

Page No.11 of 17

Section 302 IPC with the aid of Section 149 IPC cannot be sustained.   

17. It is now well established that this Court does not, by special leave

convert  itself  into  an appellate  court  to  appreciate  evidence for  third

time.   As  has  been  consistently  held  by  this  Court  in  Ramaniklal

Gokaldas  and  Others  v.  State  of  Gujarat (1976)  1  SCC  6  and

Ramanbhai  Naranbhai  Patel  and others  v.  State  of  Gujarat (2000)  1

SCC 358 and other cases, unless some serious infirmity or perversity is

shown, this Court normally refrains from reappreciating the matter on

appeal  by  special  leave.  In  the  case  at  hand,  hurling  of  bombs  is

attributed only to accused Nos. 1 to 3. Had the other accused intended

to kill Kennedy and the witnesses, they would have inflicted injuries on

the vital organs or used the surest weapon of committing murder and not

mere sickles/sticks. Conviction of accused Nos. 4 to 10 under Section

302  IPC  with  the  aid  of  Section  149  IPC,  in  our  view,  suffers  from

serious infirmity and liable to be set aside.

18. Insofar as the conviction of  the Sahayam (A3),  an attempt was

made that he cannot be convicted under Section 302 IPC as Selvaraj

(A2) and Sahayam (A3) were acquitted under Section 27(2) and Section

27(3) of the Arms Act, 1959. As rightly contended by the learned counsel

for  the  State,  the  sole  reason  for  acquittal  under  Section  27(2)  and

Page No.12 of 17

Section 27(3) of  the Arms Act is non-obtaining of  prior  sanction from

District Magistrate to prosecute the accused under the Arms Act. Hence,

the  acquittal  of  the  accused Nos.  2  and  3  under  Section  27(2)  and

Section 27(3) of the Arms Act is of no avail to accused No. 3.  

19. Joseph A11:  On behalf  of  Joseph (A11),  it  was submitted that

there is nothing on record to show the involvement of  Joseph in the

occurrence and no overt act is attributed to him and hence, no liability

could be fastened upon him. PWs 1 to 3 have consistently stated that

Joseph (A11)  asked them to  "...hack  and  hurl  bomb...".   The  words

uttered by accused Joseph is the starting point for all the troubles and all

the accused acted only on such instigation of accused Joseph (A11). In

his evidence, Johnson (PW3) had stated "that there had been dispute

between the families of Jesu Adimai (A1) and  Joseph (A11) and the

family  of  Anthony Muduthagam (PW2) with regard to fishing at  sea".

Though no  overt  act  is  attributed  to  the  accused Joseph,  the words

uttered by him "...hack, throw bomb and kill..." clearly shows that only on

the  exhortation  of  the  accused  Joseph,  other  accused  acted  and

attacked  the  complainant  party.  Joseph  (A11)  was  convicted  under

Section  302  IPC  read  with  Section  149  IPC  even  though  he  was

charged  under  Section  302  IPC  read  with  Section  109  IPC  (fourth

Page No.13 of 17

charge). Though the conviction of the accused Joseph under Section

302 IPC read with Section 149 IPC cannot be sustained, the same is

modified as conviction under  Section 302 IPC read with Section 109

IPC.

20. As  discussed above,  on  the  exhortation  of  Joseph  (A11),  Jesu

Adimai  (A1)  hurled  the  bomb  which  hit  the  forehead  of  deceased

Kennedy.  Selvam (A2) hurled the bomb which hit the right ankle of Raja.

Bomb hurled by Sahayam (A3) fell on the floor and exploded.  The bomb

hurled  by  Selvaraj  (A2)  and  Sahayam (A3),  though,  had  not  hit  the

deceased,  the  fact  remains  that  they  carried the bomb which  clearly

indicates that Sahayam (A3) was sharing the intention with Jesu Adimai

(A1) and Selvaraj (A2) in committing the murder.  Conviction of Sahayam

(A3) under Section 302 IPC read with Section 149 IPC is modified as

conviction under Section 302 IPC read with Section 34 IPC.   

21. Conviction of accused Nos. 4 to 10 under Section 302 IPC with the

aid  of  Section  149  IPC  suffers  from  serious  infirmity  and  the  same

cannot  be  sustained.   Since  the  prosecution  has  not  succeeded  in

establishing and proving that  there was an unlawful  assembly  with a

common object to commit the offence, conviction of the accused Nos. 3

to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section

Page No.14 of 17

147 IPC) are set aside.   

22. Considering the individual acts of the appellants, Selvam (A4) and

Antony  Innasi  (A5)  attacked  PW1  and  PW2  on  their  left  shoulders

respectively with sickles, conviction of Antony Innasi (A5) is modified as

conviction  under  Section  324  IPC  and  the  sentence  of  rigorous

imprisonment  of  one  year  is  maintained.  Conviction  of  Selvam  (A4)

under Section 324 is affirmed and the sentence of imprisonment of one

year  imposed upon him is  affirmed.  Considering the acts of  accused

Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of

accused  Nos.6  to  10  under  Section  323  read  with  Section  149  is

modified as conviction under Section 323 IPC maintaining their sentence

of imprisonment of six months.

23. Conviction of Sahayam (A3) and Joseph (A11) under Section 302

IPC read with Section 149 IPC is modified as Section 302 IPC read with

Section 34 IPC and under Section 302 IPC read with Section 109 IPC

respectively and the sentence of life imprisonment awarded to each of

them is confirmed.  Criminal Appeal No.413 of 2012 preferred by Joseph

(A11)  is  dismissed.  Sahayam (A3)  and Joseph (A11)  are  directed  to

surrender to serve their remaining sentence.  

24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi

Page No.15 of 17

(A5),  Charles  (A6),  Jerone  (A7),  Edwinson  (A8),  Raj  (A9)  and

Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is

set aside and they are acquitted of the same.  So far as conviction of

Accused Nos. 4 to 10 for other offences and the sentence imposed upon

each of them, the same is modified as indicated above and accordingly,

appeals  are  partly  allowed.   Accused  Nos.  4  to  10  have  already

undergone  the  sentence  for  more  than  six  years,  they  need  not

surrender.  Their bail bonds stand discharged.

…….…………...………J.            [RANJAN GOGOI]

…………….……………J.            [R. BANUMATHI]

New Delhi; December 14, 2017  

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ITEM NO.1504               COURT NO.3               SECTION II-C [FOR JUDGMENT]

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

CRIMINAL APPEAL  NO(S).  413/2012

JOSEPH                                             APPELLANT(S)

                               VERSUS

STATE REP. BY INSPECTOR OF POLICE                  RESPONDENT(S) WITH

CRL.A. NO. 585/2013 (II-C)

CRL.A. NO. 662/2016 (II-C)

Date : 14-12-2017 These appeals were called on for pronouncement of  judgment today.

For parties:  Mr. S. Gowthaman, AOR

Mr. Baij Nath Patel, Adv. Ms. Sweta, Adv.  Ms. Romila, Adv. Mr. P. Soma Sundaram, AOR

Mr. P. V. Yogeswaran, AOR

Mr. M. Yogesh Kanna, AOR                      

Hon'ble  Mrs.  Justice  R.  Banumathi pronounced the judgment of the Bench comprising Hon'ble  Mr.  Justice  Ranjan  Gogoi  and  Hon’ble Mrs. Justice R. Banumathi.

The appeals are disposed of in terms of the signed reportable judgment.  

[VINOD LAKHINA] [TAPAN KUMAR CHAKRABORTY]

AR-cum-PS BRANCH OFFICER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

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