JOSEPHversusSTATE, REP. BY INSPECTOR OF POLICE .

                         [2017) 12 S.C.R. 452


A                                JOSEPH
                                     v.
                STATE, REP. BY INSPECTOR OF POLICE .
                     (Criminal Appeal No.413 of2012)
B                          DECEMBER 14, 2017
            [RANJAN GOGOI AND R. BANUMATHI, JJ.]
            Penal Code, 1860 - s.302 r/w. s.149 - Conviction under, of
    appellants - Propriety - Two factions assembled to attend funeral
c of    PW-2 's cousin - Accused party (consisting of JJ members).
    attacked the Complainant's party - Deceased (son of PW-2)
    succumbed to injuries - Trial court convicted all the accused u/
    s.302 !PC with the aid of constructive liability u/s. 149 - Appeal
    before High Court was dismissed - On appeal, held: First part of
  . s.149 states about the commission of an offence in prosecution of
D 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 instant case,
    there was no common object among the accused .as only A-ll had
    enmity with PW-2s family - It was on the exhortation of A-ll that
    all ·the accused individually reacted - Prosecution failed to prove
E
    that all the accused persons had any common object to commit the
    murder of the deceased which activated all of them to join in
    furtherance of the common object, so as to invoke the first part of
    s.149 - Conviction of A-3 uls. 302 r!w. s.149 is modified as
    conviction u/s. 302 r/w. s.34 - Conviction of A-4 to A-IO u/s. 302 rl
F w s.149 cannot be sustained - Conviction of A-11 u/s.302 r/w. s. 149
    is modified as conviction u/s.302 rlw. s.109.
         Penal Code, 1860 - s.149 - Vicarious liability under - When
    can be invoked - Discussed.
        Arms Act, 1959 - ss.27(2) and (3) - Plea of A3 that he cannot
G be convicted u/s.302 1PC as he and A2 were acquitted u/ss.27(2)
  and (3) - Held: Not tenable - Sole reason for acquittal of A-3 and
  A-2 U/ss.27(2), (3) was non-obtaining of prior sanction from District
  Magistrate for prosecution under the Arms Act-' Thus, A-3s and
  A-2's acquittal ulss.27(2), (3) of the Arms Act is of no avail to A-3 -
H Penal code, 1860 - s.302.
                                   452
      JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                      453


      Constitution of India - Art. 136 - Power of Supreme Court -       A
Held: Supreme court does not, by special leave, convert itself into
an appellate court to appreciate evidence for third time, unless some
serious infirmity or perversity is shown.
      Disposing of the appeals, the Court
       HELD: 1.1 For invoking the vicarious liability under Section B
 149 IPC, it is important to find out if the offence was committed
 to accomplish the common object of the assembly or was the one
 which the member'S 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 C
 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 D
Section 141 IPC must be established. 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 E
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. [Paras 9, 12] [459-G·
H; 460-A-B; 462-B-C]
      1.2 In the present case, there was no common object among         F
the accused as only All had enmity with PW-2's family. There
was no evidence to prove that the accused Nos.l to 11 had any
common object to commit the murder of the deceased which
activated all of them to join in furtherance of the common object.
[Para 14] [462-F; 463-B]
                                                                        G
      2.1 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. [Paras 15] [463-C] .
                                                                        H
    454           SUPREME COURT REPORTS                   [2017] 12 S.C.R.
•
    A        2.2 In the facts and circumstances of the case, 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.
       Accused Nos. 4 to 10 may not have had the knowledge that Al,
       A2 and A3 were armed with bombs and that the murder of the
     B
       deceased was likely to be committed. On the exhortation of All,
       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
     c 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. Accused Nos. 4 to 10 have already undergone the
       sentence for more than six years, they need not surrender. Their
       bail bonds stand discharged [Paras 15, 16 and 24] [463-C, E-F;
     D 465-H; 466-A]
                3. Supreme Court does not, by special leave convert itself
          into an appellate court to appreciate evidence for third time,
          unless some serious infirmity or perversity is shown, this Court
          normally refrains from reappreciating the matter on appeal by
          special leave. [Para 17] [463-G-H]               ·
     E
               Ramaniklal Gokaldas and Others v. State of Gujarat
               {1976) 1 SCC 6 ; Ramanbhai Naranbhai Patel and
               others 11. State of Gujarat (2000) 1 SCC 358 : [1999] 5
               Suppl. SCR 41 - relied on.
     F       4. An attempt was made by A3 that he cannot be convicted
       under Section 302 IPC as he along with A2 was acquitted under
       Section 27(2) and Section 27(3) of the Arms Act, 1959. The sole
       reason for acquittal under Section 27(2) and Section 27(3) of the
       Arms Act was non-obtaining of prior sanction from District
       Magistrate to prosecute the accused under the Arms Act. Hence,
     G his and A2's acquittal under Section 27(2) and Section 27(3) of
       the Arms Act is of no avail to him. Convi~tion of A3 under Section
       302 IPC read with Section 149 IPC is modified as Section 302
       IPC read with Section 34 IPC and the sentence oflife imprisonment
       awarded is confirmed. A3 is are directed to surrender to serve
     H the remaining sentence. [Paras 18, 23] [464-B-C; 465-F-G]
     JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                  455


      S. The words uttered by All was the starting point for all A
the troubles and all the accused acted only on such instigation of
All. Though no overt act is attributed to All, the words uttered
by him " ... hack, throw bomb and kill.•." clearly show that only on
his exhortation, other accused acted and attacked the complainant
party. All was convicted under Section 302 IPC read with Section B
149 IPC even though he was charged under Section 302 IPC
read with Section 109 IPC (fourth charge). Though the conviction
of All 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 and the sentence of life
imprisonment awarded is confirmed. All is directed to surrender C
to serve the remaining sentence. [Paras 19, 23] (464-F-G; 46S-
F]
       6. On the exhortation of All, Al hurled the bomb which hit
the forehead of deceased. A2 hurled the bomb which hit the right
ankle of one 'R'. Bomb hurled by A3 fell on the floor and exploded. D
The bomb hurled by A2 and A3, though, had not hit the deceased,
the fact remains that they carried the bomb which clearly indicates
that A3 was sharing the intention with Al and A2 in committing
the murder. Conviction of A3 under Section 302 IPC read with
Section 149 IPC is modified as conviction under Section 302 IPC
read with Section 34 IPC. [Para 20] (464-H; 46S-A"B]                E
      7. Further, since the prosecution had 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 S (under Section 148 IPC) and accused Nos. 6 to ll
(under Section 147 IPC) are set aside. [Para 21] [46S-C]            F
      8. In view of the individual acts of the appellants, A4 and
AS attacked PWl and PW2 on their left shoulders respecti.vely
with sickles, conviction of AS is modified as conviction under
Section 324 IPC and the sentence of rigorous imprisonment of
one year is maintained. Conviction of A4 under Section 324 is
affirmed and the sentence of imprisonment of one year imposed G
upon him is affirmed. Considering the acts of accused Nos.6 to
10 that they attacked 'R' 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. [Para 22] [46S-D-E]         H
456           SUPREME COURT REPORTS                      [2017] 12 S.C.R.



A           Rajendra Shantaram Todankar v. State of Maharashtra
            and Ors. (2003) 2 SCC 257 : [2003] 1 SCR 10 ;
            Allauddin Mian and Others. Sharif Mian and Anr. v.
            State of Bihar (1989) 3 SCC 5 : (1989] 2 SCR 498 -
            relied on.
B            State of Punjab v. Sanjiv Kumar alias Sanju and Ors.
            (2007) 9 SCC 791 : [2007] 7 SCR 1025 ; Daya Kishan
            v. State of Haryana (2010) 5 SCC 81: (2010] 4 SCR
            854 ; Kuldip Yadav and Ors. 1~ State of Bihar (2011) 5
            SCC 324 : (2011] 5 SCR 186 ; Lalji and Ors. I'. State
            of U.P. (1989) 1 SCC 437: [1989] 1 SCR 130 ; Ranbir
c           Yadav v. State of Bihar (1995) 4 SCC 392 : (1995] 2
            SCR 826 ; Raclwmreddy Chenna Reddy and Ors. v.
            State of A.P. (1999) 3 SCC 97 - referred to.
                             Case Law Reference
D     [2003] 1 SCR 10                relied on               Para 10
      [2007] 7 SCR 1025              referred to             Para 10
      [1989] 2 SCR 498               relied on               Para 11
      [20101 4 SCR 854               referred to             Para 11
 E    [2011] 5 SCR 186               referred to             Para 11
      [1989] 1 SCR 130               referred to             Para 12
      [1995] 2 SCR 826               referred to            Para 12
      (1999) 3 sec 97                referred to             Para 12
 F    (1976) 1 sec 6                 relied on              Para 17
      [1999) 5 Suppl. SCR 41         relied on               Para 17
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.413of2012.
G          From the Judgment and Order dated 10.02.2011 of the High Court
      of Madurai Bench of Madras in Criminal Appeal (MD) No. 519 of 2002
                                     WITH
            Crl. A. No. 585 of 2013 and Crl. A. No. 662 of 2016.

H
      JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                          4S7


      P.R. Kovilan Poongkuntran, S. Gowthaman, Ms. Aswathi M. K!            A
Rahul Joshi, Y. Arunagiri, P. Soma Sundaram, 0. Shokeen, P. V.
Yogeswaran, M. Yogesh Kanna, Mrs. Sujatha Bagadhi, Advs. for the
appearing parties.
       The Judgment of the Court was delivered by
      R.BANUMATHI,J. I. Theseappealsariseoutofthejudgment                   B
dated 10.02.2011 passed by Madras High Court at Madurai Bench
dismissing Criminal Appeal No.S19 of 2002 thereby affirming the
conviction of the 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 imptisonment imposed upon          c
each of them.
        2. Briefly stated case of prosecution is that on 12.01.1994, PW2-
Anthony Mududhagam 1 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 3.0S p.m., Jesu Adimai (A !)(since       D
dead), Selvaraj (A2) and Sahayam (A3) armed with country made bombs
in their hands, Selvam (A4) and Antony Innasi (AS) armed with sickles,
Charles (A6), Jerone (A7), Edwinson (AS), Raj (A9) and Elizabethan
(A10) with sticks and Joseph (All) came there and confronted the
deceased Kennedy, PW2 and Suresh (PWl) [who just came there to
see his father PW2]. Joseph (All) instigated all the accused to attack      E
on them. Selvam (A4) attacked PWl with sickle on the left shoulder.
JesuAdimai (A I) 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 (AS) attacked PW2 on his left       F
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. Thereafter Johnson (PW-3)
hired a tempo and took the injured to Nagercoil Kotlar Government
Hospital. On the way to hospital, Kennedy succumbed to injuries.
                                                                            G
       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
                                                                            H
458            SUPREME COURT REPORTS                         [2017] 12 S.C.R.



A     viz., blood stained earth (M.0,6) and sample earth (M.0.7) from the
      scene of crime and conducted the inquest (Ex.Pl I). 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
 B
      "the death was due to head injuries and the same could have been
      caused by expldsion of bomb" and issued post-mortem certifiqte
      (Ex.P-6). On 15.01.1994, PW12-Ganesan-lnspector 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
 c    (A4) which led to recovery of sickle with wooden handle (M.0.2) and
      sickle with iron handle (M.0.3). 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
 D    witnesses (PWs 1to12) and marked nineteen exhibits (Ex.P-i to Ex.P-
      19) and seven material objects (M.0.1 to M.0.7). 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
 E    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
 F    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
 a    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
 H
      JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                             459
                   [R. BANUMATHI, J.]

and that the appellants knew that death of Kennedy was likely to be            A
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            B
circumstances of the case, prosecution has clearly proved the existence
of commonobject 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.                                     c
       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           D
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      E
      and that the offence has been committed in prosecution of the
      comrnon 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.
                                                                               F
       The s.econd 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 Section 149, if it can be shown
       that the offence was such as the members knew was likely to be
       committed.
                                                                               G
       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
                                                                               H
460.            SUPREME COURT REPORTS                         [2017] 12 S.C.R.



 A     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 .
. B
              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:

 c           "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
 D           guilty of that offence. The two clauses of Section 149 vary in
             dei:ree 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
 E           fold the commjssjon of an act which may not necessarily be the
             common object of the assembly. nevertheless. the members of
             the assembly had knowledi:e of likelihood of the commjssjon 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
 F           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 offepce would not necessarily enable
 G           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
 H           arms can-ied by the members of the assembly, their common object
     JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                              461
                  [R. BANUMATHI, J.]

      and the behaviour of the members soon before, at or after the A
      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 B
      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]                           C
      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
eiucidated in Allauddin Mian and Others. Sharif Mian and Am: v.
State of Bihar (1989) 3 SCC 5, this Court held:                                D
      "8 . ........Therefore. in order to fasten vicarious responsibility on
      any member of ail unlawful assembly the prosecution must prove
      that the act constitutin1: 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            E
      prosecution of the common object of that assembly. Under this
      section. therefore. every member of an unlawful assembly renders
      himselfliable 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         F
      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                  G
      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]
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462            SUPREME COURT REPORTS                        [2017] 12 S.C.R.



A          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
B     in the facts and circumstances of each case, nature of weapons used by
      such members, the manner and s"equence 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;
 c    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 (A I) in respect of laying the fishing net in the sea. On
 D    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 (A 11 ), the accused party attacked the complainant party. The
      occurrence started on the eastern side of the church and in front of the
 E    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 (Al I) had enmity with PW-2's family.
 F    Jesu Adimai (Al), Selvaraj (A2) and Sahayam (A3) were armed with
      bombs; Selvam (A4) and Antony Innasi (AS) were armed with sickles;
      and A6 to A I 0 were armed with sticks. On the exhortation of Joseph
      (A 11 ), Jesu Adimai (Al) 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
 G    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
 H
      JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                             463
                   [R. BANUMATHI, J.]

the common intention to cause the death of the complainant party. Selvam       A
(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 W 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.                              B
       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
                                                                               c
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,          D
 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 I 0 may not have had the knowledge that
 Jesu Adimai (A 1), Selvaraj (A2) and Saha yam (A3) were armed with            E
 bombs and that the murder of Kennedy was likely to be committed. On
 the exhortation of Joseph (A 11 ), 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         F
 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 11. State of Gujarat ( 1976) I SCC 6 and                   G
Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000) I
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
                                                                               H
464             SUPREME COURT REPORTS                         [2017) 12 S.C.R.


 A    only to accused Nos. I 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.
 B
              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, I 959. As rightly contended by the learned counsel
      for the State, the sole reason for acquittal under Section 27(2) and Section
 c    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 All: On behalf of Joseph (All), it was submitted
 D 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 I to 3 have consistently stated that
   Joseph (A 11) asked them to " ... hack and hurl bomb ... ". The words
   uttered by accused Joseph is the starting point for all the troubles and all
 E the accused acted only on such instigation of accused Joseph (A I I). In
   his evidence, Johnson (PW3) had stated ''that there had been dispute
   between the families of Jesu Adimai (A I) and Joseph (A 11) 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
·p
   exhortation of the accused Joseph, other accused acted and attacked
   the complainant party. Joseph (A I I) was convicted under Section 302
   IPC read with Section 149 IPC even though he was charged under
   Se.ction 302 IPC read with Section I 09 IPC (fourth charge). Though the
   conviction of the accused Joseph under Section 302 IPC read with Section
 G 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 (Al I), Jesu
      Adimai (A I) hurled the bomb which hit the forehead of deceased
      Kennedy. Selvam (A2) hurled the bomb which hit the right ankle of
 H·
      JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE                          465
                   [R. BANUMATHI, J.]

Raja. Bomb hurled by Sahayam (A3) fell on the floor and exploded.           A
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 (Al) 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.      B
       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
                                                                            c
to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section
147 IPC) are set aside.
       22. Considering the individual acts of the appellants, Selvam (A4)
and Antony Innasi (A5) attacked PWl and PW2 on their left shoulders
respectively with sickles, conviction of Antony Innasi (A5) is modified     D
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 sen!ence 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     E
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 (A 11) under Section
302 IPC read with Section 149 IPC is modified as Section 302 IPC read       F
with Section 34 IPC and under Section 302 IPC read with Section I 09
IPC respectively and the sentence oflife imprisonment awarded to each
of them is confirmed. Criminal Appeal No.413 of 2012 preferred by
Joseph (A 11) is dismissed. Sahayam (A3) and Joseph (A 11) are directed
to surrender to serve their remaining sentence.
                                                                            G
       24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony
Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and
Elizabethan (AlO)] 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
                                                                            H
466             SUPREME COURT REPORTS                    [2017] 12 S.C.R.


A     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.


B
      Divya Pandey                                         Appeals disposed of.