Holding

A person can be convicted under Sections 148 and 302 read with 149 IPC on the basis of inferred common object and membership in the unlawful assembly, without the need to prove a specific overt act, and charge‑framing defects that do not cause prejudice do not amount to a failure of justice.

Summary

The State of Andhra Pradesh prosecuted twenty‑one accused for a night‑time raid on the house of Gankidi Mohan Reddy that resulted in his murder. The trial court convicted eleven of them under Sections 148, 302 read with 149 IPC and related offences; the High Court set aside the convictions of six accused under Sections 148 and 302/149, holding that specific overt acts were not proved against them. On appeal, the Supreme Court examined whether a member of an unlawful assembly must be shown to have performed an overt act to be liable under Section 149, and whether defects in charge‑framing under the CrPC amounted to a failure of justice. Relying on precedents (Masalti, Lalji, Willis) the Court held that membership and common object can be inferred from the totality of facts and that an overt act is not essential. It also held that the charge‑framing irregularities did not prejudice the accused and therefore did not constitute a failure of justice. Consequently, the Supreme Court restored the convictions of the six accused under Sections 148 and 302/149 IPC.

Issues considered

Whether conviction under Section 148 and Section 302 read with Section 149 IPC can be sustained without proof of a specific overt act by each accused.
Whether the omission of the common object in the charge under Section 148 IPC and the misjoinder of charges violate Section 211 CrPC and amount to a failure of justice under Sections 464 and 465 CrPC.
What test is to be applied to determine if a person shared the common object of an unlawful assembly under Section 149 IPC.
Whether the lack of medical corroboration of alleged overt acts defeats the conviction under Section 149 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 211, s. 313, s. 464, s. 465
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 324, s. 325, s. 447, s. 457

Subjects

unlawful assemblycommon objectSection 149 IPCovert actcharge framingCrPC Sections 464 465vicarious liabilitymurderconvictionfailure of justice

Judgment

A STA TE OF A.P. ETC.
v.
THAKKIDIRAM REDDY AND ORS. ETC.

AUGUST 11, 1998

B [M.K. MUKHERJEE AND D.P. WADHWA, JJ.]

Indian penal code, 1860-Sections 148 and 149-Common object-
Determination of -Not essential to establish individual's overt act.

C Code of Criminal Procedure, 1973-Sections 464 and 465-Misjoinder
of Charges-Effect ofFailure of justice-Meaning of.

The prosecution case is that there was long standing enmity between
the party of the accused and the party of the deceased. On August I 0/11,
1990, at or about I a.m., 21 accused persons armed with crow-bar, sticks and
D other deadly weapons broke open the door and entered the house of the
deceased.

Al assaulted the deceased with a plough rod (negatipale), A2 with a
crow-bar and A3 and AS with sticks. The accused also assaulted the wife
E (PW-2), the brother (PW-3) parents and cousin in the deceased when they
tried to intervene and save the deceased.

After the incident, the injured persons were taken to a hospital. The
diseased, however, succumbed to his injuries. The incident was reported to
the police at 6 a.m. Post-mortem of the body of the deceased was carried out
F by PW-12 who found IO injuries on the body of the deceased which in his
opinion could be caused by a hard substance such as stick or a crow-bar PW-
14 who examined injuries on the body of PW-I, 2 and 3 also opined that the
injuries could be caused by stick or crow-bar. During the cause of investigation
blood stained earth, two crow-bars and some broken sticks were recovered
from the house of the deceased.
G
During the trial, the prosecution examined 15 witnesses, out of which
PW-I, 2 and 3 (relatives of the deceased) and PW-4 and 5 (neighbours of
the deceased) fingured as eye witnesses.

The Sessions Court acquitted ten of the accused. Al to A3 were
H convicted under Sections 148, 302/149 and Section 457 l.P.C. A4 to All
1088
ST ATE OF A.P. ETC. v. THAKKJDIRAM REDDY 1089
were convicted under Sections 148, 302 read with 149, and Section 447 A
I.P.C. A3 and A4 were also convicted under Section 324 I.P.C.

On appeal to the High Court,the High Court set aside the conviction
of A2 to All under Sections 148 and 302/149 I.P.C. and maintained all other
convictions. The High Court held that it was unsafe to convict A2 to All
under Sections 148 and 1491.P.C. without there being any specific overt act B
attributed to them. The High Court further held that the occular evidence
regarding the overt acts committed by A2 to AS and A9 is not supported by
medical evidence.

The State filed a Special Leave Petition against the acquittal of A2 to C
All from charges under Section 148 and 302/149 I.P.C Leave was granted
by this Court limited to the question of acquittal of A2 to AS. Another Special
Leave Petition was filed by Al before this Court.

Before this Court, the counsel for the accused inter-alia contended
that charges against the accused were not framed in accordance with Section D
211 of Cr.P.C. though charge was farmed under Section 148 I.P.C. for
unlawful assembly, it was not mentioned as to what was the common object
of the said unlawful assembly. Further a charge under Section 302 1.P.C.
simplicitor was framed against the accused whereas they were convicted
under Section 302 read with 149 I.P.C.
E
Allowing the appeal of the State and dismissing that of the accused,
this Court

HELD : 1. It cannot be gainsaid that since the incident took place in
the house of the deceased at the dead of night, PWs. I, 2 and 3 who were
members of his household, were the most natural and probable witnesses. F
Further the injuries sustained by them in that night leaves no room for doubt
that they were present when the incident took place. As regards P.Ws. 4 and
5, their claim that they saw the incident cannot also be doubted for they were
the next door neighbours of the deceased. The evidence of the above five
witnesses, so far as it relates to the manner in which the incident took place G
is consistent and cogent and does not suffer from any infirmity. (1095-F-H)

2.1. To ascertain whether a particular person shared the common
object of the unlawful assembly it is not essential to prove that he committed
some illegal overt act or had been guilty of some illegal omission in pursuance
of the common object. Once it is demonstrated from all the facts and H
1090 SUPREME COURT REPORTS [1998] 3 S.C.R.

A circumstances of a given case that he shared the common object of the
unlawful assembly in furtherance of which some offence was committed-or
he knew was likely to be committed-By any other person, he would be guilty
of that offence. Undoubtedly, commission of an overt act by such a person
would be one of the tests to prove that he shared the common object, but it
B is not the sole test. [1099-CJ
2.2. When the injuries are considered in the context of the facts, that
there was bitter enmity between the parties, that at an unearthly hour the
miscreants armed with various weapons like crow-bars and sticks trespassed
into the house of the deceased after breaking open the door, dragged him out
C of the bed room to the front yard and beat him to death, and that whoever came
to his rescue was beaten up, the only conclusion that can bi;; drawn was that
they formed an unlawful assembly with the common object of committing
murder of the deceased and as soon as their objective was achieved they left
the place. [1101-B-C)
D Masalti v. State of U.P., [1964) 8 SCR 133 and Lalji v. U.P., [1989) 1
sec 437, relied on.
3. It is undoubtedly true that the charges suffered from some infirmities. "-
However, the accused persons were in no way prejudiced due to the errors
and omissions in the charges. Apart from the fact that this point was not
E agitated in either of the Courts below, from the fact that the material
prosecution witnesses (who narrated the entire incident) were cross examined
at length from all possible angles and the suggestions that were put forward
to the eye witnesses, it is clear that the accused persons were not in any way
prejudiced in their defence. In their examination under Section 313 of the
F Code, the accused persons were specifically told of their having committed
offences under Sections 148 and 302/149 I.P.C. [1095-D-E) //'-

Willis {William) Slaney v. The State of Madhya Pradesh, (1995) 2 SCR
1140, relied on.

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 458 of
1996 Etc.

From the Judgment and Order dated 19.8.95 of the Andhra Pradesh High
Court in Cr!. A.No. 917of1994.

H Guntur Prabhakar and Mrs. D. Bharathi Reddy for the Appellants.
STATE OF A.P. ETC. 1·. THAKKIDIRAM REDDY [M.K. MUKHERJEE,J.] ] 091

Arunachalam T.S., P.Venkat Reddy, N. Sudhakaran and Mrs. D. Bharathi A
Reddy for the Respondents.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Special leave granted in S.L.P. (Cr!.) No. 4429 of
I 995, limited '.o the nature of offence. B
2. In Sessions Case No. 552 to I 992, the Additional Sessions Judge,
Karim Nagar, indicted twenty one persons for lurking house trespass, rioting,
murder and other allied offences. While acquitting ten of them, the trial
Judge convicted the other eleven (who were arrayed as A I to A I I respectively
in the Trial Court and hereinafter will be so referred to) under Sections I 48 C
and 302/149 IPC. Besides, A I to A3 were convicted under Section 457 !PC,
A4 to A 1I under Section 44 7 IPC and A3 and A4 under Section 324 IPC.
Against their convictions and sentences A I to A I I preferred an appeal before
the High Court which was disposed of by setting aside the convictions of A2
to Al I under Sections 148 and 302/149 IPC and maintaining all other
convictions. Assailing the judgment of the High Court, the State of Andhra D
Pradesh has filed an appeal - besides the appeal filed by A I - against the
acquittal of A2 to A I I of the charges under Section 148 and 302/149 IPC
wherein leave to appeal has been granted limited to the acquittal of A2 to AS
and A9. Both the appeals have been heard together and this judgment will
dispose of them.
E
3. The prosecution case, in brief, is that in the intervening night of
August 10/1 I, 1990, at or about I A.M., all the accused persons formed
themselves into an unlawful assembly armed with crow-bars, sticks and other
deadly weapons and descended upon the house ofGankidi Mohan Reddy (the
deceased) in Thimmapur village. They broke open the door of the house and F
dragged him into its front yard. When his wife Bhagya Lakshmi (P.W.2) and
his brother Ganakidi Narsimha Reddy (P. W.3) intervened, A3 beat the former
and A2 the latter, both with sticks. Meanwhile, the deceased had extricated
himself from the clutches of the miscreants and tried to run away but he was
apprehended by them and again brought to the front yard. There A I beat him
with a plough-rod (negatipale). A2 with a crow-bar and A3 and A5 with G
sticks. When the parents of the deceased intervened A I and A4 beat them
also. Thereafter the other accused persons started beating the deceased.
Gankidi Narsimha Reddy, a cousin of the deceased, then came to his rescue,
but he was also caught hold of and beaten up. The miscreants then left the
place. All the injured persons were taken to Government hospital, Karim
Nagar, in a tractor where their injuries were attended to. However Ganakidi H
1092 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Mohan Reddy succumbed to his injuries at about 4 A.M. A few hours later
(at about 6 A.M.) P.W.1 went to L.M.D. Colony Police Station and reported
the incident and on his report Syed Sadiq (P.W. 13), the Head Constable,
registered a case. Circle Inspector P. Satyanarayana (P. W.15) of Husnabad
took up investigation and went to the Government hospital There he held
B inquest upon the dead body and sent requisition to the Medical Officer for
its post-mortem examination. He then went to the scene of offence, got it
photographed and seized some blood stained earth, two pairs of sleepers,
two crow-bars and some broken sticks therefrom. In course of investigation _,
he arrested the accused persons and pursuant to the statements made by
some of them recovered some-crow-bars and sticks. On completion of
C investigation, he submitted charge sheet against them.

4. The motive that was attributed to the accused for committing the
offences was that there was a long standing enmity between them and the
family of the deceased. According to the prosecution in the year 1982, the
deceased, who was the Sarpanch of Thimmapur village, did not permit some
D relations of A2 and A3 to join their services even though they got appointments
as Carobar and Sweeper in the Gram Panchayat under orders of the District
Panchayat Officer. This enraged A2 and A3 and they assaulted the deceased.
Three days later, when a panchayat was held over the issue the two groups
fought with each other for which cases were registered against both. Later
E on, there was a matrimonial dispute between the cousin of A I and the
daughter of one of the followers of the deceased. Following that dispute the
relatives of the girl beat her husband, her father-in-law and A 1 for which a
case was registered. It is further alleged that A12 usurped the house of one
Fakir which was unauthorisedly built on a Government land and the deceased,
as the Sarpanch, got a resolution passed for its demolition. He got similar
F resolution passed when A 13 constructed another unauthorised house. Owing
to such bitter enmity the accused persons conspired to do away with the
deceased and pursuant to that conspiracy they committed the crimes the
question.

G 5. The accused persons pleaded not guilty to the charges levelled
against them and contended that they were falsely implicated.

6. In support of its case, the prosecution examined 15 witnesses but no
witness was examined on behalf of the defence. Of the witnesses examined,
P.Ws. I, 2 and 3 and two of their neighbours, namely Gankidi Laxma Reddy
H (P.W.4) and Babu Reddy (P.W.5), figured as eye witnesses, P.W.s.1, 2 and 3
STAT2 OF A.P. ETC. v. THAKKJDIRAM REDDY [M.K. MUKHERJEE,J.] 1093
natTated the prosecution case detailed earlier and also spoke about their long A
standing enmity with the accused; and P.Ws. 4 and 5 fully supported their
version of the i~cident. The Trial Judge discussed the evidence of the above
five witnesses threadbare in the light of the arguments canvassed on behalf
of the defence against its acceptance and held that so far as the place and
time of offence and the overt acts attributed to them, there were no material
discrepancies except one or two omissions. The Trial Judge found that the B
evidence of the eye witnesses was corroborated by the evidence of P.W.12,
who held post-mortem examination upon the deceased, and of Dr. Raghavaiah
~ who exmained P.Ws. I, 2 and 3 and Gankidi Narsimha Reddy, the cousin of
the deceased (not examined) and found injuries on their persons. The trial
Judge further found that the F.I.R. was promptly lodged by P.W.l and it
contained the substratum of the prosecution case. Inspite of such findings C
the trial Judge gave the benefit of doubt to Al2 to A2 l as their names were
not mentioned in the F.I.R.

7. The High Court virtually confirmed all the findings of the Trial Court
in all respects but set aside the convictions gf A2 to A 11 of the offences D .
under Section 148 and 302/149 !PC with the following observations:

, J.. "The omnibus statement about the culpability of the accused in the
testimony of the prosecution witnesses would in the circumstances of
the case have to be considered only in the light of specific overacts
attributed to the accused and as may be corroborated by Medical
evidence. Therefore, we find it difficult to accept that all the appellants E
were members of the unlawful assembly with the object of committing
the offence. In the circumstances, we hold that it is highly unsafe to
apply Section 149 and make everyone of them constructively liable.
We therefore have no hesitation in dismissing the prosecution case
against the appellants on the charge under Section 149 !PC.
Accordingly, the conviction of all the appellants accused under Section F
149 !PC is set aside.

Having rejected the contention that the appellants were members of
unlawful assembly, it would be equally unsafe to apply section 148 of
!PC on the basis of omnibus statements made by the prosecution
witnesses which is not corroborated by Medical evidence. Accordingly, G
the conviction of all the (appellants) accused under Section 148 IPC
is s~t aside."

In upholding the conviction of A I for the murder the High Court
observed that all the five witnesses consistently deposed that A I
beat the deceased with a stick meant for ploughing called nagatipale H
1094 SUPREME COURT REPORTS [1998] 3 S.C.R.

A on his head and the doctor (P.W.12) opined that the victim died of the
head injury.

8. We have carefully gone through the entire evidence on record and
the judgments of the learned Courts below and heard the learned counsel for
the parties at length.
B
9. Before considering the factual aspects of the case, it will be necessary
to advert to a question of law relating to the validity of the trial raised by Mr.
Arunachalam, the learned counsel appearing for A2 to A5 and A9. He
contended that charges were not framed against the accused persons in
C accordance with Section 211 of the Code of Criminal Procedure, in that, in the
charge framed under Section 148 IPC though it was alleged t~at they were the
members of an unlawful assembly it was not mentioned what was its common
object. Besides, he contended, a charge under Section 302 IPC simplicitor was
framed against all the accused persons and not with the aid of Section 149
IPC for which they were convicted by the trial court. He submitted that an
D accused is entitled to precisely know the exact nature of the charge brought
against him. According to him, unless he has this knowledge, he will be
prejudiced in his defence, particularly in a case - as the present one - where
he is sought to be prosecuted for acts not committed by himself but by others
with whom he is in company. It is undoubtedly true that the charges suffered
E from the infirmities pointed out by Mr. Arunachalam but the question is
whether the trial, and, for that matter, the convictions recorded against the
accused were vitiated thereby.

10. Sub-Section (I) of Section 464 of the Code of Criminal Procedure,
1973 ('Code' for short) expressly provides that no finding, sentence or order
F by a Court of competent jurisdiction shall be deemed invalid merely on the
ground that no charge was framed or on the ground of any error, omission
or irregularity in the charge including any misjoinder of charges, unless in the
opinion of the Court of appeal, confirmation or revision, a failure of justice
has in fact (emphasis supplied) been occasioned thereby. Sub-section (2) of
G the said section lays down the procedure that the Court of appeal, confirmation
or revision has to follow in case it is of the opinion that a failure of justice
has in fact been occasioned. The other section relevant for our purposes is
Section 465 of the Code; and it lays down that no finding, sentence or order :t-
passed by a Court of competent jurisdiction shall be reversed or altered by
a Court of appeal, confirmation or revision on account of any error, omission
H or irregularity in the proceedings, unless in the opinion of that Court, a failure
STATE OF A.P. ETC. v. THAKKIDIRAM REDDY [M.K. MUKHERJEE, J.] 1095
of justice has in fact been occasioned. It further provides, inter alia, that in A
determining whether any error, omission of irregularity in any proceeding
under this Code has occasioned a failure of justice, the Court shall have
regard to the fact whether the objection could and should have been raised
at an earlier stage in the proceedings.

1I. This Court in Willis (William) Slaney v. The State of Madhya B
Pradesh, [1955] 2 SCR I 140 elaborately discussed the applicability of Sections
535 and 537 of the Code of Criminal Procedure 1898, which correspond
-7-
respectively to Section 464 and 465 of the Code, and held that in judging a
question of prejudice, as of guilt, court? must act with a broad vision and look
to the substance and not to technicalities, and their main concern should be c
to see whether the accused had a fair trial, whether he knew that he was being
tried for, whether the main facts sought to be established against him were
explained to him fairly and clearly and whether he was given a full and fair
chance to defend himself. Viewed in the context of the above observations
of this Court we are unable to hold that the accused persons were in any way
prejudiced due to the errors and omissions in the charges pointed out by Mr. D
Arunachalam. Apart from the fact that this point was not agitated in either
of the Courts below, from the fact that the material prosecution witnesses
- J..
(who narrated the entire incident) were cross examined at length from all
possible angles and the suggestions that were put forward to the eye witnesses
we are fully satisfied that the accused persons were not in any way prejudiced E
in their defence. While on this point we may also mention that in their
examination under Section 3 I3 of the Code, the accused persons were
specifically told of their having committed offences (besides others) under
Sections 148 and 302/149 !PC. For all these reasons we reject the threshold
contention of Mr. Arunachalam.
F
12. Coming now to the facts of the case, it cannot be gainsaid that since
the incident took place in the house of the deceased at the dead of night,
PWs. l, 2 and 3, who were members of his house hold, were the most natural
and probable witnesses. Further, the injuries sustained by them in that night
leaves no room for doubt that they were present when the incident took place.
As regards P.Ws. 4 and 5, their claim that they saw the incident cannot also
G
be doubted for they were the next door neighbours of the deceased. The

---· evidence of the above five witnesses, so far as it relates to the manner in
which the incident took place is consistent and cogent and does not suffer
from any infirmity. On the contrary, their evidence stands corroborated by the
following facts and circumstances :- H
1096 SUPREME COURT REPORTS [1998] 3 S.C.R.

A (i) P.W.12, who held the post mo11em examination upon the body
of the deceased, found ten injuries which, in his opinion, could
be caused by a hard substance like stick or crow bar;

(ii) P. W.14, the other doctor, who examined P. Ws. 1, 2, 3 and
Gankidi Narsimha Reddy in the early hours of the morning
B noticed a number o' injuries on their persons and, according to
him, all those injuries could also be caused by such weapons;

(iii) the F.I.R. was lodged at the earliest available opportunity and
therein the substance of the prosecution case finds place;

(iv) blood stained earth, two crow bars and some broken sticks were
c found in the front yard of the house of the deceased; and

(v) an unhinged broken doorleaf was found lying on the floor.

From all these materials on record it must be said that the concurrent
findings of the Courts be.low that on the fateful night a mob armed with crow-
D bars, sticks and other weapons forcibly entered into the house of the deceased,
killed him and injured four members of his family who came to his rescue, are
unexceptional.

13. That brings us to the questions whether A I to AS and A9, who are
E only before us in these appeals, were amongst the miscreants and, if so, the
nature of offences committed by them. PWs. I, 2 and 3 named A 1 to AS and
A9 (besides others) as the members of the mob and also gave out categorically
the parts played by them in the rioting and murder. According to these
witnesses when the deceased was dragged to the front yard of the house,
his wife intervened. A3 then beat her with stick. When P.W.3 went to their

c
F rescue A2 also beat him with stick. In the meantime the deceased had extricated
himself from their clutches and ran into the house but A 1 to A3 went inside
and dragged him to the front yard again. Then, A I beat him with a nagatipale
on his head and he fell down. A2 then beat him with crow bar on his cheek
and when P.W.l 's wife intervened A9 beat her with a stick. Their further
G evidence is that Al to A3 and AS beat the deceased again and when P.W.I
tried to save him A4 beat him with stick on his head. Lastly, the witnesses
stated that on being instigated by A I other accused beat Narsimha, when he
came to their rescue. These witnesses also spoke about the previous long
standing enmity between their family and the accused. PWs.4 and S fully
supported their version about the roles played by the above six accused
H persons. It is of course true that there are some contradictions in between
STATE OF A.P. ETC. v. TllAKKIDIRAM REDDY [M.K. MUKHERJEE, J.] 1097
r-~ their statement made in Court and before the police during investigation. Both A
the Courts below found those contradictions minor and of no moment; and
having gone through them we are in complete agreement with the views so
expressed.

14. As noticed earlier, the High Court, while relying upon the evidence
of the above witnesses to uphold the conviction of A 1, rejected their evidence B
qua the other accused, only so far as it related to their convictions under
Section 148 and 302/149 !PC on the grounds, that without strict proof of their
specific overt acts they could not be convicted for the above offences only
on the omnibus statements of the five eye witnesses about their culpability
and that their testimony regarding the overt acts of the other accused was C
not supported by the medical evidence. In our considered view, none of the
grounds can be sustained.

15. The question as to what is required to be proved against a person
who is alleged to be a member of an unlawful assembly came up for
consideration before a four-Judge Bench of this Court in Masalti v. State of D
UP., [1964] 8 SCR 133 and it answered the same with the following words:
_..... .J.. "While determining this question, it becomes relevant to consider
wh.ether the assembly consisted of more persons who were merely
passive witnesses and had joined the assembly as a matter of idle
curiosity without intending to entertain the common object of the E
assembly. It is in that context that the observations made by this
Court in the case of Baladin v. State of UP. assume significance;
otherwise, in law, it would not be correct to say that before a person
is held to be a member of an unlawful assembly, it must be shown
that he had committed some illegal overt act or had been guilty of
some illegal omission in pursuance of the common object of the F
assembly. In fact, Section 149 makes it clear 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; G
and that emphatically brings out the principle that the punishment
prescribed by Section 149 is in a sense vicarious and does not
always proceed on the basis that the offence has been actually
committed by eve.'Y member of the unlawful assembly. "
(emphasis supplied) H
1098 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 16. The same principles were enunciated by this Court in Lalji v. State .....1

of U.P., (1989] 1SCC437 wherein it said:

"The two essentials of the section are the commission of an offence
by any member of an unlawful assembly and that such offence must
have been committed in prosecution of the common object of that
B assembly or must be such as the members of that assembly knew to
be likely to be committed. Not every person is necessarily guilty but
only those who share in the common object. The common object of ......
the assembly must be one of the five objects mentioned in Section 141
I.P.C. Common object of the unlawful assembly can be gathered from
c the nature of the assembly, arms used by them and the behaviour of
the assembly at or before scene of occurrence. It is an inference to
be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the
time of committing of the offence guilty of that offence. Thus this
D section created a specific and distinct office. In other words, it created
a constructive or vicarious liability of the members of the unlawful
assembly for the unlawful acts committed pursuant to the common 1- ...
object by any other member of that assembly. However, the vicarious
liability of the members of the unlawful assembly extends only to the
acts done in pursuance of the common object of the unlawful assembly,
E or to such offences as the members of the unlawful assembly knew
to be likely to be committed in prosecution of that object. Once the
case of a person falls within the ingredients of the section the
question that he did nothing with his own hands would be immaterial.
He cannot put forward the defence that he did not with his own hand
F commit the offence_ committed in prosecution of the common object /-"
of the unlawful assembly or such as the members of the assembly
knew to be likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural
results of the combination of the acts in which he joined. It is not
.necessary that all the persons forming an unlawful assembly must do
G some overt act. When the accused persons assembled together, armed
with lathis, and were parties to the assault on the complainant party,
f-
the prosecution is not obliged to prove which specific overt act was
done· by which of the accused. This section makes a member of the
unlawful assembly responsible as a principal for the acts of each, and
H all, merely because he is a member of an unlawful assembly. While
STATE OF A.P. ETC. v. THAKKIDIRAM REDDY [M.K. MUKHERJEE, J.] 1099
overt act and active participation may indicate common intention of A
the person perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicarious criminal liability under Section 149. It
must be noted that the basis of the constructive guilt under Section
149 is mere membership of the unlawful assembly, with the requisite
common object or knowledge."
B
(emphasis supplied)
_,. 17. From the above judgments of this Court it is evident that to ascertain ·
whether a particular person shared the common object of the unlawful assembly
it is not essential to prove that he committed some illegal overt act or had
been guilty of some illegal omission in pursuance of the common object. Once C
it is demonstrated from all the facts and circumstances of a given case that
he shared the common object of the unlawful assembly in furtherance of
which some offence was committed - or he knew was likely to be committed
- by any other person, he would be guilty of that offence. Undoubtedly,
commission of an overt act by such a person would be one of the tests to
prove that he shared the common object, but it is not the sole test. Coming D
now to the present case, the fact that at the dead of night a mob of persons
armed with various weapons forcibly trespassed into the house of the deceased
..Jter breaking open the door, clearly indicates that they had formed an
unlaw r(UI assembly with a common object to commit some offence and each
of them w<0uld be liable for the offence committed or knew likely to be E
committed b;v any of the members of the mob. To ascertain what was the
common object of the above unlawful assembly, we will advert later. Suffice
it to say, at this s,tage, that in the facts and circumstances of this case the
six accused (with wlLom only we are concerned in these appeals) would be
guilty for the offence com;mitted by any other member of the mob, in furtherance
of the common object, withciut proof of any overt act committed by them. We F
do not, however, wish to dih.1te on this aspect of the matter any further as
we find the second ground ca~vassed by the High Court that the occular
evidence regarding overt acts com, mitted by A2 to A5 and A9 is not supported
by medical evidence, is factually it' correct.

18. As stated earlier the decease~y sustained IO injuries (details of which G

-- .. we will refer to at a later stage) inclw~ing lacerations and abrasions and the
doctor opined that all those injuries could be caused by hard and blunt
weapon like crow-bar or stick. As rega\rds the four injured, we get from the
evidence of P.W.~4 6at P.W.l sustaineJd four injuries, P.W.2 and P.W.3 two
each and G. Nars1mha Reddy, six. He 'opined that injury Nos. I and 6 found H

'\
•
1100 SUPREME COURT REPORTS [1998] 3 S.C.R.

A on the person of Narsimha Reddy were grievous in nature and all other """"~
injuries on his person and the injuries found on the persons of the three
witnesses were simple in nature. He further opined that the injuries could be
caused by blunt weapon like stick. The injuries found on the person of the
deceased as also the four injured fit in with the version of the eye witnesses
B regarding the manner of assault by A 1 to A5 and A9 and we are at loss to
understand how the High Court concluded that the medical evidence did not
corroborate their evidence.

19. The next question that requires an answer is what was the common
object of the unlawful assembly. Both the learned counsel appearing for the
C accused submitted that considering the nature of the injuries inflicted by the
miscreants upon the deceased, it could not be said that their common object
was to commit the murder. According to the learned counsel, even if the
entire prosecution case was believed the only inference that could be drawn
was that the accused persons were guilty only of the offence under Section
325 for causing grievous hurt with blunt weapons, read with Section 149
D IPC. To appreciate this contention raised on behalf of the appellants it will
be necessary to refer to the injuries sustained by the deceased. PW12, who
held the post mortem examination upon the deceased stated that he found
the following external injuries on his person :

"!. Laceration left cheek 3" x l" x 1/2".
E
2. Abrasion left shoulder 2" x l ".

3. Laceration right leg l" x I" x 112".

4. Three abrasions on the left leg each l" x 1:".
F
5. Laceration right frontal area 5" x 1/2" x 112''.

6. Laceration right parietal area 6" x 1/ . x I".
'
7. Laceration occipital area 4" x I 2' x 112".
G
8. Abrasion left lower chest I" x) I"."
y-
So far as internal injuries are ccpcerned he stated that on examination
of the skull, he found fractures on the Pright temporal bone, parietal bone and
occiptal bone and the total length of 'he fracture was 7". He further stated
H that subarachnoid haemorrhage was pr (sent. He opined that the head injury
#
STA TE OF A.P. ETC. v. THAKKIDIRAM REDDY [M.K. MUKHERJEE, J.] 1101
alone was sufficient to cause the death of the deceased. A
,.' ;

20. If the injuries were to be considered in isolation we might have
persuaded ourselves to give a second thought to the above submission of
the learned counsel but when the injuries are considered in the context of the
facts, that there was bitter enmity between the parties, that at an unearthly
hour the miscreants armed with various weapons like crow-bars and sticks B
trespassed into the house of the deceased after breaking open the door,
dragged him out of the bed room to the front yard and beat him to death, and
that whoever came to his rescue was beaten up, the only conclusion that can
be drawn was that they formed the unlawful assembly with the common
object of committing murder of the deceased and as soon as their objective
was achieved they left the place.
c
21. It was also contended by Mr. Arunachalam that since, admittedly,
the injury inflicted by AI caused the death of the deceased and the injuries
inflicted by others on his person were simple in nature, it could not be
conclusively said that A2 to AS and A9 shared with A I a common object to D
commit the murder. In other words, according to the learned counsel, committing
the murder was the individual act of AI and not in furtherance of the common
.. object of the unlawful assembly. We are unable to accept the above contention
for the reasons mentioned earlier. That apart, the manner in which the incident
took place clearly proves that even if we were to assume that A2 to AS and
A9 did not share the common object of committing the murder, they, being E
members of the unlawful assembly certainly knew that the murder was likely
to be committed by Al in prosecution of the common object so as to make
them liable under Section 302 read with, the second part of Section 149 !PC.
In either view of the matter, therefore, we are of the opinion that the High
Court was not at all justified in acquitting A2 to AS and A9 of the charges p
under Sections 148 and 302/149 !PC.

22. On the conclusions as above, we dismiss the appeal preffered by
Edla Bhoomreddy (Al), son of Gopal Reddy, and allow the appeal of State
of Andhra Pradesh and restore the convictions and sentences recorded against
Thakkidi Ram Reedy (A2), Kasam Kanka Reedy (A3), Mothey Narayana G
Reddy (A4), Gunukulla Malla Reddy (AS) and Edla Bhoom Reedy (A9), son
of Narsimha Reedy, by the trial court under Section 148 and 302/149 !PC. A2
to AS and A9 are directed to surrender to their bail bonds to serve out the
sentence imposed by the Trial Court.
B.K.M. Appeal dismissed. H