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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.231-233 OF 2009 MUTHURAMALINGAM & ORS.   ..... Appellant(s)

:Versus:

STATE REPRESENTED BY INSPECTOR OF POLICE ….. Respondent(s)

WITH

Criminal Appeal No.225 of 2009

Criminal Appeal Nos.226-227 of 2009

Criminal Appeal No.895 of 2009

Criminal Appeal No.429 of 2015

JUDGMENT

Pinaki Chandra Ghose, J.

1. Brief  facts  giving  rise  to  the  initiation  of  criminal

proceedings in these cases are as follows: A gruesome incident

occurred in Taluk Ramanathapuram, District Tamil Nadu in

which the  appellants,  the deceased and few witnesses were

related to each other. As per prosecution case, on 10.02.1994,

accused persons assembled unlawfully with deadly weapons

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and  with  the  common  intention  to  commit  murder,  they

chased the family members of deceased Rajendran when they

got  down  from  the  bus  in  the  village  near  Karisalkulam

Branch Road.  They  were  coming  back  to  their  village  after

attending  the  cremation of  Rajendran,  who died in  another

case on 09.02.1994, and the appellants herein and few others

were  accused  in  that  case.  The  accused  persons,  in  a

gruesome attack on the family members, murdered 8 persons,

including  one  who  succumbed  to  the  injuries  later  in  the

Hospital. PW-1 immediately after the occurrence proceeded to

Kovilankulam Police Station and lodged the complaint, Ex.P1.

PW-22 who was the Sub-Inspector of Police at Kovilankulam

Police Station registered the case as Crime No.6 of 1994 under

Sections 147, 148, 324, 307, 302 of  the Indian Penal Code

(“IPC”)  and  under  Section  25(1)  of  Indian  Arms  Act.  After

completing  the  investigation,  PW-23  filed  the  charge-sheet

against the accused persons under Sections 147, 148, 324,

307, 506(ii), 307 & 302 read with Section 34 IPC.   

2. Originally  there  were  21  accused  persons.  Accused

Chandran died during the investigation.  Hence,  20 accused

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persons  (A1  to  A20)  were  tried  by  the  Court  of  Additional

Sessions  Judge,  Fast  Track  Court,  Ramanathapuram.

However, accused No.7 – Murugan @ Kodarai died during the

trial.  The  learned  Additional  Sessions  Judge,  Fast  Track

Court, Ramanathapuram, convicted A1 to A6 and A8 to A20

each and sentenced them to undergo rigorous imprisonment

for  various  offences.  A18  –  Malaiyandi  died  during  the

pendency of the appeal before the High Court.  The learned

Additional Sessions Judge found the occurrence to be a brutal

and gruesome attack by the accused persons forming unlawful

assembly and causing death of eight persons, including a 1½

years child, with a common objective of eliminating everyone

in the deceased’s family.  

3. Learned  Additional  Sessions  Judge  delivered  his

judgment  on  30.05.2006,  holding  all  the  accused  persons

guilty and sentenced them as follows:

ACCUSED CONVICTION SENTENCE

A-1 to A-6 & A8 to A20 U/s 148 IPC RI for one year

A-1 to A-6, A-9 to A13, & A-15

U/s 302 r/w S.34 IPC Imprisonment for life

A-8 and A-17 U/s 302 r/w S.34 IPC Imprisonment for life

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  (2 counts) for each count

A-1 to A-6, A-9 to A-13 A-15, A-16, A-18 to  A-20

   U/s 302 r/w S.149     (7 counts)

Imprisonment for life  for each count

A-14 U/s 302 r/w S.149 IPC    (8 counts)

Imprisonment for life for each count

A-8 and A-17    U/s 302 r/w S.149 IPC    (6 counts)

Imprisonment for life  for each count

A-14 and A15   U/s 307 IPC RI for 10 years

A1 to A6, A8 to A13  and A16 to A20  

 U/s 307 r/w S.149 IPC RI for 10 years

4. Against the judgment and order dated 30.05.2006 passed

by  the  learned  Additional  Sessions  Judge,  criminal  appeals

were  preferred  before  Madurai  Bench  of  the  Madras  High

Court.  The  High  Court  while  disposing  of  Criminal  Appeal

Nos.313,  323,  328,  406,  451 and 539 of  2006,  found that

there was no evidence to warrant conviction of A5, A13, A19

and A20 in the instant case. However, the High Court found

all other accused guilty of eight barbaric murders and attempt

to murder while forming unlawful assembly. The High Court,

in paragraph 66 of its judgment, modified the conviction and

sentence imposed by the lower Court as follows:

i. “A1 to A4, A6, A8 to A12 and A14 to A17 are convicted under  section 148 IPC and sentenced to undergo rigorous imprisonment for one year;

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ii. A1  to  A4,  A6,  A8  to  A12,  A14  to  A17  are convicted under section 302 read with Section 149 IPC(8Counts) instead of 302 read with 34 IPC and sentenced to undergo imprisonment for life for each count;

iii. We confirm the conviction of A1 to A4, A6, A8 to A12 and A14 to A17 under Section 307 read with Section  34  IPC  and  sentence  them  to  undergo rigorous imprisonment for ten years;

iv. We  set  aside  the  conviction  and  sentence imposed on A5, A13, A19 and A20.”

The High Court in paragraph 73 of the impugned judgment,

confirmed  the  direction  given  by  the  Trial  Court  that  the

sentences of  life  imprisonment imposed for  each count  and

sentence  of  imprisonment  for  10  years,  shall  run

consecutively.  Aggrieved  by  the  judgment  and  order  dated

14.12.2007,  passed by the High Court,  the appellants have

approached this Court invoking the jurisdiction under Article

136 of  the  Constitution of  India.  All  the  connected appeals

were clubbed together for common adjudication since they are

arising out of same impugned judgment.

5. Since legitimacy of the consecutive life sentences in the

light of Section 31 of the Code of Criminal Procedure (in short

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‘Cr.P.C.)  was challenged in these appeals, before arriving at

the  conclusive  findings,  a  three-Judge  Bench  of  this  Court

referred the matter to larger Bench and the said larger Bench

–  Constitution  Bench,  vide  its  judgment  dated  19.07.2016,

upheld  the  legitimacy  of  consecutive  sentences  of  life

imprisonment  and  held  that  “while  multiple  sentences  of

imprisonment for life can be awarded for multiple murders or

other  offences  punishable  with  imprisonment  for  life,  the  life

sentences so awarded cannot be directed to run consecutively.”

The Constitution Bench further held as follows:

“The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court  can,  therefore,  legitimately  direct  that  the prisoners  shall  first  undergo  the  term  sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first  it  would  necessarily  imply  that  the  term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.”  

6. Therefore, the only substantial  question which remains

for our consideration in the present case is whether the High

Court in the facts and circumstances of the case, was justified

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in modifying the conviction from that under Section 302 read

with Section 34 IPC to that of Section 302 read with Section

149 IPC.  

7. Mr.  ATM  Ranga  Ramanujam,  learned  senior  counsel

appearing  for  the  appellants  submitted  that  in  view  of  the

deposition of PW12, all  the eye-witnesses (PW1-PW4) cannot

be believed as it casts suspicion on the prosecution version as

it is admitted by PW12 in his cross-examination that he saw

only three bodies strewed and no injured person at the place

of occurrence. He further submitted that the investigation has

not been done properly in the present case, and therefore, the

accused  persons  deserve  to  be  acquitted.  It  was  further

submitted that there is substantive difference between Section

34 and Section 149 of IPC and substitution of Section 34 for

Section  149  would  result  in  prejudice  to  the  accused  and

therefore  the  same  may  not  be  permitted.  Further,  no

satisfactory  explanation  to  such substitution was  given.  He

further submitted that there was delay in the lodging of FIR

which creates doubts.

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8. Per  contra,  Mr.  M.  Yogesh  Kanna,  learned  counsel  for

respondent  submitted that  the  volunteered statement  of  A5

was reduced into writing, being Exh.29, whereby 7 aruvals, 10

velsticks, a toy gun and 3 knives were recovered and it was

clearly  spoken  to  by  the  prosecution  witnesses  that  A1

stabbed  deceased  (in  short  ‘D’)  D1  with  velkambu  on  his

stomach; A2, A3, A4, A6, A10, A14, A18 attacked D4, D5, D6

with velstick  and aruval;  A7 attempted to  attack PW3 with

velstick;  A8  stabbed  D7  with  velstick  on  his  left  arm;  A9

attacked D1 repeatedly with aruval;  A11 stabbed D2 on his

stomach with velstick;  A12 stabbed D3 with velstick on his

stomach and chest,  left  thigh and other parts of  body;  A15

attacked D2 with aruval  on his left  hand; A16 attacked D3

with aruval on his right hand; A17 attacked D7 with aruval on

his left  hand. It  was further submitted that all  the accused

were armed with sharp and deadly weapons and were hiding

in  the  bushes.  When the  deceased  came near  the  place  of

occurrence,  appellants attacked them shouting slogans that

“kill them”, “hack them” and thus their act itself substantiates

the commission of crime within the meaning of Section 302

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read with 149 of IPC.

9. Learned  counsel  for  the  respondent  further  submitted

that the averments made by the appellants in the present case

are  not  sustainable  as  eye-witnesses  have  vividly  spoken

about  the  presence  and  modus-operandi of  the  offence

committed  showing  their  motive,  which  are  also  essential

ingredients to confirm conviction under  Section 149 of  IPC.

The plea of the appellants that a weapon, like velstick, cannot

cause death was rightly rejected by the High Court as it was

observed by the High Court that cut injury could have been

caused by velstick, depending upon the manner in which the

weapon was used. Since PW-12 is not the eye-witness of the

occurrence, he cannot state any substantive part of the offence

and  the  manner  in  which  the  offence  would  have  been

committed. It was lastly submitted by the learned counsel for

the respondent that albeit there was agitated atmosphere at

the village, complaint was given the same day at 05:30 pm and

thus there was no delay in lodging the FIR.

10. Having  heard  the  learned  counsel  on  both  sides,  the

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legality of the conviction under Section 302 read with Section

149, has been found disputed. As regards the case in the light

of common intention as per Section 34 IPC, this Court in Devi

Lal Vs.  State of Rajasthan, (1971) 3 SCC 471, in para 13

held that “the words ‘in furtherance of the common intention of

all’ are a most essential part of Section 34 of the Indian Penal

Code.  It  is  common  intention  to  commit  the  crime  actually

committed.  The  common  intention  is  anterior  in  time  to  the

commission  of  the  crime.  Common  intention  means  a

pre-arranged plan.”

11. But this case doesn’t  appear to fulfill  the essentials of

common intention. The emphasis of such sort of constructive

liability and the legality of conviction by applying Section 34 or

Section 149 IPC,  have  been examined by  Courts  in  several

cases.  In  Willie  (William)  Stanley Vs.  State  of  M.P.,  AIR

1956 SC 116, it was held as follows:  

“Section 34, 114 and 149 of the Indian Penal Code provide  for  criminal  liability  viewed  from  different angles as regarding actual participants, accessories and men actuated by a common object or a common intention and ‘the charge is rolled-up one involving the  direct  liability  and  the  constructive  liability’ without specifying who are directly liable and who

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are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of  the  various  heads  of  criminal  liability  for  the offence  cannot  be  said  to  be  fatal  by  itself,  and before a conviction for a substantive offence without a charge can be set aside, prejudice will have to be made out.”

12. Moreover, a distinction between ‘’common intention’ and

‘common object’  was made out by this Court in the case of

Chhitarmal  Vs. State of Rajasthan,  (2003) 2 SCC 266 as

under:

“A  clear  distinction  is  made  out  between  common intention  and  common  object  in  that  common intention denotes action in concert  and necessarily postulates  the  existence  of  a  pre-arranged  plan implying a prior meeting of the minds, while common object  does  not  necessarily  require  proof  of  prior meeting  of  minds  or  pre-concert.  Though  there  is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on  the  facts  of  each case  whether  the charge  under section  149  overlaps  the  ground covered by section 34.”

13. In  the  present  case,  motive  is  seen  in  the  collective

testimony of eye-witnesses PW1-PW3 when accused came out

from the bushes shouting “kill them”, “hack them”, “fire them”,

as also mentioned in the complaint Exhibit P-1. A child was

also mercilessly attacked in the incident with a spear on his

chest.  Accused  No.7-Muthuramalingam  snatched  away  the

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child from her mother Indira Gandhi and killed her too with

velstick.

14. Even  PW4  (though  not  an  eye–witness  of  whole

occurrence) also hid in the nearby bushes to save his life. In

his  statement  he  also  corroborated  the  factum  of  hearing

shooting and also after identifying accused Muthuramlingam

stated  that  “his  wife  was  also  killed  by  accused

Muthuramlingam with knife and accused Dhakshinamoorthi cut

his wife with aruval”. In a similar case of  Umesh Singh &

Anr. Vs.  State  of  Bihar,  (2000)  6  SCC  89,  this  Court

observed:  

“A  report  was  made  by  Jugeshwar  Singh  (PW  7) alleging that the appellants herein along with several other  persons  numbering  about  20  came  to  the “khalihan” (threshing floor) of Bhola Singh where he and  other  members  of  his  family  were  threshing paddy. They tried to take away the paddy. Upendra Singh threatened that any resistance would be met with such action which might even result in death. Thereafter  Rajendra  Singh  hit  Bhola  Singh  with  a lathi and Upendra Singh moved backwards and fired at Bhola Singh with a gun as a result of which Bhola Singh was hit and fell down writhing in pain. Saryu Singh was shot at by Rajendra Singh and Bhagwat Dayal Singh, who was also inflicted a bhala-blow by Arvind  Singh,  appellant  in  the  connected  matter, Umesh Singh and Sheonandan Singh fired at Rajdeo Singh  as  a  result  of  which  he  fell  down.  When

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Dharmshila,  wife  of  Bhola  Singh  reached  the threshing  floor  with  her  child  aged  about one-and-a-half-years old in her arms, named Rinku, Sheonandan Singh snatched the child and threw the child on the ground as a result  of  which the child died.  After  investigation,  the  police  submitted  a charge-sheet  against  seven  persons  named  in  the FIR as three of them had died during the pendency of  the  investigation.  The  trial  court  convicted Sheonandan Singh and Upendra Singh under Section 302 IPC and sentenced them to  death,  one  of  the accused — Satyendra Singh, was acquitted and the rest  of  the  accused  persons  were  convicted  under Section  302  IPC  read  with  Section  149  and sentenced  to  life  imprisonment.  They  were  further convicted under Section 324 read with Section 148 IPC and under Section 27 of the Arms Act. On appeal to the High Court, conviction was maintained while the  sentence  of  death  on  Sheonandan  Singh  and Upendra Singh was reduced from one of death to life imprisonment  thereafter.  Appeals  have  been preferred before this Court”.

And later at Para No.3 of the judgment it was held:  

“Therefore, there is ample evidence on record in the shape of the evidence of the eyewitnesses and the witnesses who had sustained injuries,  sounding a ring  of  truth  to  the  prosecution  case  put  forward, with the trial court and the High Court having taken identical views, we do not think there is any good reason to upset those findings.”.

Thus, we are of the considered opinion that prosecution case

has been well established by the testimonies of eye-witnesses

PW1-PW3  and  corroborated  by  PW4,  wherein  factum  of

unlawful assembly was proved.

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15. Before  arriving  at  the  conclusion,  we  wish  to  supply

emphasis in the case of  Mohan Singh Vs.  State of Punjab,

AIR 1963 SC 174 = 192 Supp (3) SCR 848, where the law on

common  object  in  an  unlawful  assembly  was  explained  as

under:

“8. The true legal position in regard to the essential ingredients of an offence specified by s.149 are not in  doubt. Section  149 prescribes  for  vicarious  or constructive criminal liability for all  members of an unlawful assembly where an offence is committed by any  member  of  such  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. It would  thus  be  noticed  that  one  of  the  essential ingredients  of section  149 is  that  the  offence  must have been committed by any member of an unlawful assembly, and s. 141 makes it  clear that it  is only where five or more persons constituted an assembly that  an  unlawful  assembly  is  born,  provided,  of course; the other requirements of the said section as to the common object of the persons composing that assembly  are  satisfied.  In  other  words,  it  is  an essential condition of an unlawful assembly that its membership must be five or more.”

16. Moreover, in the case of  Mahadeo Singh Vs.  State of

Bihar, (1970) 3 SCC 46, it was observed by this Court:  

“10.  In  the  present  case  the  facts  and  the circumstances  show  that  the  assault  and  the demolition of the stairs of the well took place in the same  transaction  because  the  members  of  the unlawful  assembly  attacked  Ram Prasad  and  his

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people and injured some of them simultaneously or in 'quick succession. Sarjug Mahto and Suraj Mahto both  said  that  at  the  instigation  of  accused  Ram Charan accused Manogi gave a bhala blow near the left  elbow  of  Sarjug  Mahto.  Sarjug  also  said  that accused Sheo Pujan gave him a bhala blow below the elbow of  the left  hand and the appellant  gave him  a  bhala  blow  on  the  finger  of  right  hand. According to Suraj Mahto the appellant struck Sarjug Mahto  on  the  finger  of  his  right  hand.  Suraj  and Sarjug then raised an alarm. On hearing the alarm Ram Prasad, Bharat and Lakhan came. Ram Prasad protested to the accused against the attack on Sarjug Mahto.  At  the  instigation  of  accused  Ram Charan accused Rajballam struck Ram Prasad With a bhala. Ram Prasad fell down and died there. Ram Lakhan then  struck  Bharat  with  a  garasa.  Ram  Charan struck him on the head with a bhala. The assailants then  fled  away.  The  evidence  proves  that  the common object of all the members of the assembly was  that  murder  was  likely  to  be  committed  in prosecution of a common object, namely, to commit murder, assault, mischief and criminal trespass. All the  members  of  the  assembly  were  armed  with weapons;  they  knew  that  murder  was  to  be committed  in  prosecution  of  that  object.  It  cannot, therefore, be said that the appellant is not guilty of the  charge  under Sections  302/149 of  the  Indian Penal Code.”

17. However,  an  overt  act  is  not  always  an  inflexible

requirement of rule of law to establish culpability of a member

of an unlawful assembly.  The crucial question is whether the

assembly entertained a common unlawful object and whether

the accused was one of the members of such an assembly by

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intentionally joining it or by continuing in it being aware of the

facts which rendered the assembly unlawful. Without unlawful

object no assembly becomes an unlawful assembly.

18. Further,  in  paragraph  6  of  Shambhunath  Singh Vs.

State of Bihar, AIR 1960 SC 725, it was held by this Court:  

“Section 149 of the Indian Penal Code is declaratory of  the  vicarious  liability  of  the  members  of  an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an  unlawful  assembly  is  formed  with  the  common object of committing an offence, and if that offence is committed in prosecution of the object by any member of  the  unlawful  assembly,  all  the  members  of  the assembly  will  be  vicariously  liable  for  that  offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of  the  offence  so  committed.  But  "members  of  an unlawful assembly may have a community of object upto a 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 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal

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306.”

19. Furthermore, in the case of Mizaji Vs. State of UP, AIR

1959 SC 572, this Court observed:

“From this conduct it  appears that members of the unlawful  assembly  were  prepared  to  take  forcible possession at any cost and the murder must be held to be immediately connected with the common object and  therefore  the  case  falls  under s.149, Indian Penal Code and they are all  guilty of murder.  This evidence of Hansram and Matadin which relates to a point  of  time  immediately  before  the  firing  of  the pistol  shows that the members of  the assembly at least knew that the offence of murder was likely to be  committed  to  accomplish  the  common  object  of forcible possession.”

20. After careful consideration of the submissions made by the

learned counsel on both sides, we are of the considered opinion

that the accused-appellants did cause the death of eight persons in

a barbaric and brutal manner wherein merciless killing of a child of

only  1½  years  is  also  involved.  Therefore,  the  accused  in  the

present case do not deserve any sympathy.  

21. Hence,  all  the  criminal  appeals  filed  by  the  appellants  are

sans merit and are liable to be dismissed. We uphold the judgment

passed  by  the  High  Court  as  far  as  awarding  of  sentences  is

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concerned. However, the sentences shall run in conformity with the

observations made by the Constitution Bench of this Court in its

judgment  dated  19.07.2016  passed  in  these  appeals.  The

impugned judgment passed by the High Court is modified to the

above extent and all the appeals are disposed of accordingly.  

. . . . . . . . . . . . . . . . . . .J         (Pinaki Chandra Ghose)

. . . . . . . . . . . . . . . . . . .J         (Amitava Roy)

New Delhi; December 9, 2016.