Holding

Three persons cannot form an unlawful assembly under Section 141 IPC; consequently, convictions under Sections 148 and 149 are set aside, but the appellants can be convicted under Section 302 read with Section 34 on the basis of common intention.

Summary

Seven accused were tried for rioting, murder and related offences arising from the killing of Madda Lakshamandas. The trial court convicted six under Sections 148 and 302 read with Section 149 of the IPC; the high court later acquitted four of them, retaining convictions of three (A‑1 to A‑3) on the basis that they formed an unlawful assembly. On appeal, the Supreme Court held that three persons cannot constitute an unlawful assembly under Section 141, so the convictions under Sections 148 and 149 were set aside. However, the Court found that the evidence showed a common intention to murder, allowing conviction under Section 302 read with Section 34. The appellants were therefore sentenced to life imprisonment under the latter provision.

Issues considered

Whether three accused can be said to have formed an unlawful assembly within the meaning of Section 141 IPC, thereby justifying conviction under Section 148 and application of Section 149.
Whether the non‑applicability of Section 149 bars conviction under Section 302 read with Section 34.
Whether the prosecution evidence establishes a common intention to commit murder among the three appellants.

Legislation cited

Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 323, s. 34, s. 379

Subjects

unlawful assemblySection 149 IPCSection 34 IPCcommon intentionriotingmurderconvictionappealIndian Penal Code

Judgment

A NETHALA POTHURAJU AND ORS.·
v.
STATE OF ANDHRA PRADESH

SEPTEMBER 11, 1991

B [KULDIP SINGH AND M.M. PUNCHHI, JJ.)

Indian Penal Code, 1860: Sections 34, 148, 149 and 3Q2. Unlawful
assembly-Seven accused-Acquittal of four-Remaining three cannot fonn
unlawful Assembly--Section 149 held inapplicable-Evidence disclosing
c commission of offence in furtherance of the common intention-Non-ap-
plicability of Section 149 held no bar for conviction under section 302 read
with Section 34.
Appellants (Al to A3) were tried for the offences under Sections 147,
148, 323 and 309 read with section 149 of the Indian Penal Code. The Trial
Court acquitted A-7 of all the charges but convicted A-1 to A-6 under
D
sections 148 and 302 read with section 149 and sentenced them to
imprisonment for life. On appeal tht High Court acquitted A-4 to A-6 but
confirmed the conviction and sentence of the appellants.

In appeal to this Court it was contended on behalf of the appellants
E that in view of the acquittal of four accused, the appellant's conviction
under section 148 and on applying section 149 cannot be sustained. 1be
appellants being three in number could not have formed unlawful
assembly under section 141 IPC.

Disposing the appeal, this Court,
F
HELD: 1. The High Court erred in confirming the conviction and
sentence of the appellants under Section 148 and on applying 149 I.P.C. on
the ground that they formed an unlawful assembly alongwith some
unidentified persons. The prosecution case was that the seven named
accused formed the unlawful assembly and not that apart' from the seven
G accused persons there were some other unidentified persons who were
involved in the crime. Four accused having been acquitted there was no
question of the remaining three appellants forming an unlawful assembly
within the meaning of section 141 of the Indian Penal Code. Accordingly
the appellants cannot be convicted under section 148 and an applying 149
H I.P.C. Their conviction under the said sections is set aside. [6F-G]
4
POIBURAJU v. SfATE [ KULDIP SINGH, J.] 5

2. Both sections 149 and 34 I.P.C. deal with a combination of persons A
->-- who become liable to be punished as sharers in the commission of offences.
The non-applicability of Section 149 I.P.C. is, therefore, no bar in
convicting the accused under Section 302 read with section 34 I.P.C. if the
evidence discloses commission of offence in furtherance of the common
intention cf them all. [6H, 7-A]
B
2.1 Keeping in view the manner of attack and the number and nature
of injuries, there is no hesitation in holding that the appellants acted in
L furtherance of their common intention, made the murderous attack on the
deceased and caused his instantaneous death. Therefore, they are held
guilty under Section 302 read with Section 34 I.P.C. and are sentenced to c
life imprisonment. [7G-HJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
538of1983.

. From the Judgment and Order dated 6.4.1982 of the Andhra D
Pradesh High Court in Crl. A. No. 469of1981.
-<

G. Narasimhulu for the Appellants.

T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for
the Respondeot. E
The Judgment of the Court was delivered by

KULDIP SINGH, J, Nethala Pothuraju, Nethala Dhananjaya,
I Nethala Remudu and four others (hereinafter referred to as 'A-1 to A-7')
were tried for the offences under Sections 147, 148, 323, 379 and 302 read F
with Section 149 I.P.C. on the allegations that they caused the death of
Madda Lakshamandas of village Ramaraogudem on November 1, 1980
near the Tobacco garden of A-1. The Trial Court acquitted A-7 of all the
charges A-1.to A-6 were, however, found guilty for the offences punishable
under Sections 148 and 302 read with section 149 I.P.C. They were sen-
t~nced to imprisonment for life. On appeal, the High Court confirmed the G
'... -·,--'._
conviction and sentence of A-1 to A-3. The conviction and sentence of A-4
·to A-6 was set aside by the High Court and-they were acquitted on the
following reasoning:

"............. We feel that it would be safe to accept the evidence of
P.Ws. 1 and 2 to the extent it is corroborated by the evidence H
6 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A of P.W.3 in so far as the presence and participation of the
a~used in the attack on the deceased is concerned. Accepting· --<-·
the evidence of P.W.3 we hold that the identity of A-1 to A-3 in
the unlawful assembly consisting of A-1. to A-3 and some other
unidentified persons is satisfactorily established. The manner
in which the attack was made on the deceased can only lead to
B one inference namely that the common object of the unlawful
assembly was to kill the deceased. We accordingly confirm the
conviction and sentence of A-1 to A-3 under Sections 148 and
302 read with 149 l.P.C. We set aside the conviction and sen-
tence of A-4 to A-6 under Sections 148 and 302 read with 149
I.P.C. and acquit them." ·
c
This Court granted leave tQ appeal on the limited question of ap-
plicability of Section 149 I.P.C.

The learned counsel.for the appellants has contended that after the
acquittal of four accused persons by the courts below the conviction of the
D appellants under Section 148 and on applying 149 l.P.C. cannot be sus-
tained. It is argued that the appellants, being three in number, could not >--
have formed an unlawful assembly within the definition' of Section 141
I.P.C.

In our view, there is force in the contention of the learned counsel
E for the appeliants. The appellants being only three in number, there was no
question of their forming an unlawful assembly within the meaning of Sec-
tion 141 1.P.C. It is not the prosecution case that apart from the seven
accused persons there were some other unidentified persons who were
involved in the crime. The High Court clearly fell into error in confirming
F the conviction and sentence of the appellants under Sections 148 and on
applying 149 I.'P.C. en the ground that they formed an unlawful assembfy
alongwith some unidentified persons. The prosecution case from the very
beginning was that Al to A 7, the named persons, formed the unlawful
assembly. A-4 to A-7 having been acquitted, the remaining three appellants
cannot be convicted under Sections 148 and on applying 149 I.P.C. We,
G therefore, set aside the conviction of the appellants under the said sections.·

The question still remains as to whether the appellants can be con-
\rieted under Section 302 read with Section 34 I.P.C. Both Sections 149 and
34 I.P.C. deal with a combination of persons who become liable to be
punished as sharers in the commission of offences. The non applicability of
H Section 149 I.P.C. is, therefore, no bar in convicting the appellants under
POTIIURAJU v. SfATE [ KULDIP SINGH, J.] 7

Section 302 re.ad with section 34 LP.C. if the evidence discloses commission A
-t-· of an offence in furtherance of the common intention of them all.

PW-1, the wife of the deceased, PW-2, the daughter of the deceased
and PW-3, an adjoining land-owner, are the three eye-witnesses to the
occurrence. 1J is in evidence that the complainant and the accused
belonged to opposite fac~ions and there was long standing enmity between B
the parties. During the last 30 years, there had been murders and rioting
between the two factions. The deceased Madda Lakshamandas was under-
... going life imprisonment for the murder of one of the persons beloriging to
the group of the aecused. He had come on parole. On the day of occur-
rence at about 7.00 A.M. when he was passing near the field of A-1 he was
attacked by the accused party. According to the eye-witnesses, A-1 and c
A-3 were armed with spears, A-2, A-4, A-5 and A-6 with knives and A-7
was armed with a stick. All of them way-laid the deceased and dragged him
into the Tobacco garden of A-1. It is in evidence that all the accused
indiscriminately inflicted injuries on the deceased with their respective
weapons. When the deceased fell down the accused kept on giving him
D
spear, knife and stick blows. The deceased was crying for water and when
-\
his daughter brought water A-2 caught hold of her and pushed her aside.
She was also given beating by fists. Thereafter, A-1 left the spear and took
a stick and gave beating to the deceased on his heals and chest and A-3
chopped of the fingers of left hand of the deceased with the knife. A-2
further gave blows to the deceased on his head. The deceased died instan- E
taneously on the spot. Thereafter, .at the asking of A-1, A-2 and A-3
dragged the dead body from the field of A-1 and placed the same on the
road. There were as many as 18 injuries on the person of the deceased.
Seven of those were deep penetrating wounds, 8 lacerated wounds and
remaining were abrasions. The injuries caused fracture on the right
perietal bone resulting in the opening of the skull. The fourth rib was F
broken and there was an injury to the lung. There were injuries all over
the body.

Keeping in view the manner of attack as disdosed by the eye-wit-
nesses and the number and nature of injuries, we have no hesitation in
holding that the appellants made the murderous attack on the deceased G
---'
and caused his instantaneous death. We are satisfied that the appellants
acted in furtherance of their common intention of murdering the deceased.
We, therefore, hold the appellants guilty under Section 302 read wit~ Sec-
tion 34 I.P.C. H

-
8 SUPREME COURT REPORTS (1991) SUPP. 1 S. C. R

A Accordingly, we convert the conviction of the appellants to one
under Section 302 read with section 34 I.P.C. and keep them sentenced to -'.-
life imprisonment. Appellants A-1 and A-3 are on bail under orders of this
Court. We cancel the bail order. These appellants shall surrender to their
bail-bonds to undergo the sentence of imprisonment.

T.N.A Appeal disposed of.