TMI Blog1998 (8) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the judgment of the High Court, the State of Andhra Pradesh has filed an appeal besides the appeal filed by A1 - against the acquittal of A2 to A11 of the charges under Section 148 and 302/149 IPC wherein leave to appeal has been granted limited to the acquittal of A2 to A5 and A9. Bom the appeals have been heard together and mis judgment will dispose of them. 3. The prosecution case, in brief, is that in the intervening night of August 10/11, 1990, at or about 1 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 of Ganki Mohan Reddy (the deceased) in Thimmapur village. They broke open the door of the house and dragged him into its front yard. When his wife Bhagya Lakshmi (P.W.2) and his brother Ganki Narsimha Reddy (P.W.3) intervened, A3 beat the former and A2 the latter, bom 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 A1 beat him with a plough-rod (negatipale). A2 with a crow-bar and A3 and A5 with sticks. When the parents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed when A13 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. 5. The accused persons pleaded not guilty to the charges leveled 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. 1, 2 and 3 and two of their neighbours, namely Gankidi Laxma Reddy (P.W.4) and Babu Reddy (P.W.5), figured as eye witnesses, P.W.s. 1, 2 and 3 narrated the prosecution case detailed earlier and also spoke about their long standing enmity with the accused; and P.Ws. 4 and 5 fully supported their version of the incident. The Trial Judge discussed the evidence of the above five witnesses threadbare in the light of the arguments canvassed on behalf of (he 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 evidence of the eye w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 AS and A9. He contended that charges were not framed against the accused persons in accordance with Section 211 of the CrPC, in that, in the charge framed under Section 148 IPC though it was alleged that 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 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 from the infirmities pointed out by Mr. Arunachalam but the question is whether the trial, and, for that matter, the convictions recorded against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam. 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. 1, 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 be doubted for they were the next door neighbours of the deceased. The evidence of the above five wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by A1 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 5 fully supported their version about the roles played by the above six accused persons. It is of course true that there are some contradictions in between their statement made in Court and before the police during investigation. Both 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 A1, rejected their evidence qua the other accused, only so far as it related to their convictions under Section 148 and 302/149 IPC 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 not supported by the medical evidence. In our considered view, none of the grounds can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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 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 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, 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 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the offence committed by any other member of the mob, in furtherance of the common object, without proof of any overt act committed by them. We do not, however, wish to dilate on this aspect of the matter any further as we find the second ground canvassed by the High Court that the ocular evidence regarding overt acts committed by A2 to AS and A9 is not supported by medical evidence, is factually incorrect. 18. As stated earlier the deceased sustained 10 injuries (details of which we will refer to at a later stage) including 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 regards the four injured, we get from the evidence of P.W.14 that P.W.1 sustained four injuries, P.W.2 and P.W.3 two each and G. Narsimha Reddy, six. He opined that injury Nos. 1 and 6 found 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 21. It was also contended by Mr. Arunachalam mat since, admittedly, the injury inflicted by A1 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 A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned counsel, committing the murder was the individual act of A1 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 A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with, the second part of Section 149 IPC. In either v ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
