Holding

Section 149 IPC cannot be invoked where only four accused are proved to have participated, as the requirement of an unlawful assembly of five or more persons is not satisfied.

Summary

The case concerned fifteen accused persons charged with the murder of Appikatla Tataiah. Four of them (A‑1, A‑2, A‑5 and A‑11) were convicted under section 302 read with section 149 of the IPC, while the remaining eleven were acquitted. The central issue was whether section 149 IPC could be invoked to sustain the murder convictions when the prosecution had not proved the participation of any other persons, given that an unlawful assembly under section 141 IPC requires at least five persons. The Supreme Court held that, because only four accused were found guilty and the other eleven were acquitted, the factual basis for an unlawful assembly was absent and section 149 could not be applied. The Court relied on the precedents Amar Singh v. State of Punjab and Maina Singh v. State of Punjab, which emphasize the five‑person requirement. Accordingly, the appeal of the four appellants was allowed, setting aside the conviction under section 302 read with section 149, while affirming the convictions under the other charges.

Issues considered

Whether section 149 of the Indian Penal Code can be invoked to convict the four appellants when the prosecution failed to prove the involvement of any other persons, given the requirement of at least five persons for an unlawful assembly under section 141.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 57
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 302, s. 34

Subjects

unlawful assemblysection 149 IPCsection 302 IPCmurderconvictionacquittalcommon objectminimum persons requirementcriminal appeal

Judgment

K. NAGAMALLESWARA RAO AND ORS.
A
v.
STATE OF ANDHRA PRADESH

MARCH 14, 1991

[A. M. AHMADI, V. RAMASWAMI AND B
M. F ATHIMA BEEVI, JJ.]

,>- - Criminal Law: Indian Penal Code, 1860-Sections 302 and 34-
Deceased attacked by several persons-No specific overt act attributed
to the accused and instead bald statements that 15 persons caused
, injuries to deceased made in the F.I.R.· and Dying Declaration which
-. ---- was later treated as statement under section 157 Cr. P. C.-Conviction
of the accused under section 302 and section 302 read with section 34
c

J.P. C. cannot be sustained.

Sections 302 and 149-When 15 persons were specifically charged
of forming unlawful assembly and committing murder in prosecution of D
the common object of the assembly but 11 of them were acquitted, the
remaining 4 cannot be convicted under section 302/ 149 as being
members of the unlawful assembly.

The 4 appellants alongwith 11 others were tried for murder and for
).._ causing injuries. The learned sessions judge while acquitting all others E
of all the charges, convicted A-1, A-2, A-5 and A-11 on different
counts. The sentences awarded to them under various charges includ-

- ing the sentence of life imprisonment under section 302 IPC were
ordered to run concurrently. The convicted accused preferred appeal to
the High Court against their conviction and sentences and the State
appealed against the acquittal of the rest of the accused. The High F
Court altered the conviction of A-1 and A-2 under section 302 l.P.C.
~\ / ' and 302 read with section 34 respectively into one under section 302
""'· ·read with section 149 I.P .C. and confirmed the sentence for imprison-
ment for life. Except for this modification the convictions and sen-
tences in respect of all the four accused were confirmed. The state
appeal against acquittal of all other accused was dismissed. G

\ In this appeal preferred by the four convicted accused namely,
~-1, A-2, A-5 and A-11 their counsel confmed his arguments against
lheir convictions aiad sente.ates under section 302 read with section 149
1.1.C. only as the ap,;ellants had either already served or had almost
finished serving their sentences awarded to them under other charges. H

875
876 SUPREME COURT REPORTS [1991] 1 S.C.R.

The argument was that in the absence of a specific f"mdin~_ to_ t~e effect.....;._
A that apart from the 4 appellants the prosecution has proved the involve-
ment of other persons, section _149 I.P.C. cannot be invoked for con-
viCting them under section 302 I.P.C. Confirming the convictions and
sentences of the appellants under other charges but allowing their appeal
against their conviction and sentence under Section 302 I.P.C. read
B with section 1491.P.C. this Court,

HELD: Since the accused who are convicted were only four bi -~
number and the prosecution has not proved the involvement of other
persons and the courts below_ have acquitted the a<:her accused of all
the offences, section 149 cannot be invoked for convicting the four..-.<___
C appellants herein. The learned judges were not correct in stating that 7'
- Al, A2, AS and All can be held to be the members of an unlawful
·assembly along with some other unidentified persons on the facts and
circumstances of this case. The charge was not that accused 1,2,5, and y
11 "and others" or "and other unidentified persons" formed into
aQ unlawful assembly but it is th~! "you accused l_to 15" formed into
D an unlawful assembly. It is not the prosecution case that apart from the
said 15 persons there were other persons who were involved in the
crime. When the 11 other accused were acquitted it means that their
involvement in the offence had not been proved. It would not also be
permissible to assume or conclude that others named or unnamed acted 1,
_conjointly with the charged a".cused in the case unless the charge itself -
E specifically said so and there was evidence to conclude that some others
also were involved in the commission of the offence conjointly with the
charged accused in furtherance of a common object. [882A-D f .-
Amar Singh v. State of Punjab, [1987] 1 SCC 679 and Maina
Singh v. Sta,te of Punjab, [1976] 3 SCR 651, followed.
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal--;.......,,,:
No. 680of1987.

From the Ju~gment and Order datc~d 16.8J984 of the Andhra
Pradesh High Court in Crl. A. No. 604 of 1982.
G
N. Santosh Hegde, A.D.N. Rao and A. Subba Rao for th~
Appellants.

G. Prabhakar for the Respondent.

H The Judgment of the Court was delivered by
K.N. RAO v. STATE OF ANDHRA PRADESH [RAMASWAMI, J.] 877

V. RAMASW AMI, J. The appellants along 11 others were tried
A
for causing the murder of one Appikatla Tataiah, and for causing
injuries on Jarugu Rama Koteshwararao (PW 2) on 24th June, 1981
near 'Manchineeti Cheruyu' (fresh water tank) at or about 8.00 P.M.
in Machavaram Village.

The learned Sessions Judge, Krishna Division, Machilipatnam B
,>-,by his Judgment dated 16. 7 .1982 acquitted A-3, A-4, A-6 to A-10,
A-12 and A-15 of all the charges. He convicted Kurakula Nagamelles-
wararao (A-1), Jarugu Kotaiah (A-2), Appikatla Krishnamurthy (A-5)
_::---. and Appikatla Nagulu (A-11) under section 148, Indian Penal Code
and sentenced each of them to undergo two years rigorous imprison-
ment. A-1 was further convicted under section 302, IPC and sentenced
to imprisonment for life. A-2 was convicted under section 302 read c
with section 34, IPC and sentenced to imprisonment for life. A-5 and
""I" A-11 were convicted under section 302 read with section 149, IPC and
each of them were sentenced to undergo imprisonment for life.
Regarding the attack on PW-2 Jarugu Rama Koteshwararao the
learned Sessions Judge convicted A-1 and A-2 under section 326, IPC D
read with section 149 and sentenced each of them to undergo rigorous
imprisonment for four years. The learned Judge further convicted A-5
and A-11 under section·324, IPC for cliusing simple hurt to PW-2 and
~ sentenced each one of them to undergo rigorous imprisonment for two
years. A-1 and A-2 were also c;onvicted under section 324 read with
section 149, IPC and each of them were sentenced to two years rigor- E
ous imprisonment. The sentences awarded against each accused under
various grounds were ordered to run concurrently.

The convicted accused preferred Criminal Appeal No. 604 of
1982 and the State appealed against the acquittal of the rest of the
~- accused in Criminal Appeal No. 630 of 1983. At the time of admission F
of appeal, however, the State appeal was dismissed as against A-9,
A-10, A-12, A-13, A-14, and A-15 and it was admitted only as against
acquittal of A-3, A-4 and A-6 to A-8. The High Court confirmed the
conviction and sentence of A-1, A-2, A-5 and A-11 under section 148,
IPC. However, it alterted the conviction of A-1 and A-2 under section
_\ 302, IPC and Section 302 read with section 34 respectively into one G
)!,_under section 302 read with section 149, IPC and the sentence for
imprisonment for life was confirmed. The conviction of A-5 and A-11
under section 148 and section 302 read with section 149 and the senc
tence awarded thereunder were also confirmed. The High Court also
confirmed the conviction and sentences on the accused under sections
326 and 324 read with section 149 and sections 324 and 326 read with H
878 SUPREME COURT REPORTS [1991] 1 S.C.R.
- . . ~
A section 149, IPC. The sentences were directed to run concurrently. The
learned Judges of the High Court dismissed the appeal preferred by
the State in respect of acquittal of the other accused.

In this appeal Sh. Santosh Hedge, Senior Advocate appearing
for the accused appellants did not canvass the conviction of the four
B appellants, namely, A-1, A-2, A-5 and A-11 under sections 324 and
326, IPC and section 324 read with section 149, IPC and section 326 ·~
read with section 149, IPC in relation to the attack on PW-2 but with-
out prejudice to his contention that on the facts section 149, IPC could

c
not have been invoked in relation to the offence under section 302,
IPC. This stand was taken on the basis that the apEellants had already
served or had almost finished serving the four year term which was
awarded for those offences. The conviction and sentence under section
148 was also not canvassed for the same reason without prejudice the
-
above said contention. He confined his arguments against the convic-
tions and sentences of A-1, A-2, A-5 and A-11 under section 302 read
with section 149, IPC. The argument of the learned counsel for the
D appellant was that in the absence of specific finding to the effect that
apart from the four appellants the prosecution has proved the involve-
ment of other persons, section 149, IPC cannot be used for convicting
the four appellants under section 302. In this connection, he also relied
on the decisions of this Court in Amar Singh v. State of Punjab, [1987]
1SCC679 and Maina Singh v. Statt:. qf Punjab, [1976] 3 SCR 651.
E
So far this part of the case is concerned in the present case the
High Court observed:

"The lower court has convicted A-1 under section 302 of
the Indian Penal Code for attacking the deceased. A-2, was
F convicted under sections 148, 302 r.w. section 34, 324 r.w.
section 149 and 326 I.P.C. for attacking the deceased. A-5
and A-11 were convicted under sections 148, 302 r.w.
section 149, 324 and 326 r.w. section 149 IPC. As already
observed the facts and .circumstances undoubtedly show
that there was an unlawful assembly consisting of more
G than five persons and the common object of the unlawful
assembly was to attack and kill the deceased and attack PW
2. As already observed only such of accused whose pre-
sence and participation is established can safely be held to
be the members of the unlawful assembly. To arrive at such
·a conclusion we have indicated that the evidence of PW 2 to
H extent consisting with the earlier versions of Ex. P-2 can
K.N. RAO 11. STATE OF ANDHRA PRADESH {RAMASWAMI, J.] 879

safely be accepted to be the basis and if corroboration is
necessary the same can be found in the evidence of PWs 1, A
3 and 4 P. Ws. 2's evidence is subjected to scrutiny in the.
light of the contents in Ex. P-2. The consistent version
regarding the presence and participation by A-1, A-2, A-5
and A-11 can safely be accepted and they can be held to be
the members of the unlawful assembly along with some B
others unidentified persons. The common object of the
unlawful assembly was to commit murder of the deceased.
All of them can be conviction under section 302 read with
section 149 IPC inasmuch as there can be no doubt what-
soever that the object of such an unlawful asembly of which

- A-1, A-2, A-5 and A-11 are members is to attack the
deceased and PW-2. In this context it must also be c
remembered that P.W. 2 who received the serious injuries,
would be the last person to leave out the real assailants and
implicate the innocent persons."
(Emphasis supplied)
0
We are of the view that there is some confusion in the statement
of the High Court. The charges under section 324 and section 326 read
with section 149 and section 326 and section 324 read with section 149
are in relation to the injuries inflicted on P.W. 2. So far as injuries
)..._.inflicted on PW 2 is concerned as already stated the conviction and
sentence in regard to the same are not canvassed in this appeal. So far E
as the attack on the deceased is concerned P 1 the statement of PW 1

- given to the village Munsiff on 24.6.1981 immediatedly after the
occurrence stated that:

" ... surrounded my husband and my elder brother armed
with axes, curved knives, and spears. Then Kurakula F
Nagamalleswararao hacked my elder brother with curved
knife (Yerukala kathi) on the left shoulder. Jargugu
Kotaiah hacked my elder brother with an axe on the left
shoulder. Appikatla Krishna Moorthy speared my elder
brother. Appikatla Nagulu beat my elder brother on the
head with stick portion of the spear. I raised hue and cry G
loudly that they are killing my husband and my elder
brother. On hearing my cries Ummadisetti Poornaiah and
my sister-in-law Srikrishna came there. The above fifteen
persons caused injuries to my husband by beating and
hacking with axes, spears and curved knives (Yerukala
kathi) which were in their hand. My husband succumbed to H
the knife injuries."
880 SUPREME COURT REPORTS [1991] 1 S.C.R.

It may be seen from this report that there is a bald statement that
A fifteen persons caused injuries to her husband (deceased) by beating ~
and hacking with axes, spears and curved knives (Yerukala Kathi)
which were in their hands and her husband succumbed to the knife
injuries. It did not attribute any overt act to A-1, A-2, A-5 and A-11,
who are the appellants in this case. The PW 2 gave the statement Ex.
B P 2 dated 25.6.1981 recorded by the Munsiff Magistrate, Avamigadda
as a dying declaration which was later taken as a statement under
section 157 Code of Criminal Procedure. In this so far as the injuries,~
inflicted on the deceased are concerned he had merely stated:

"The aforesaid four persons and the other eleven persons,
beat and hacked my younger sisters' husband Appikatla ~-
c Tataiah and felled him down." .-

The charges framed against the accused appellants also stated:
·y--
"That you, accused No. 1 to 15, on the night of 24th day of
D June, 1981,-at about 8 P.M. near the Manchineeti Cheruvu'
in Machavaram Village, Divi taluk, were members of an
unlawful assembly and did, in prosecution of the common
object of which viz., in killing Appikatla Tataiah, S/o Chit-
tonna alias Chinna Ammanna and J arugu Rama Koteswara
Rao, S/0 Mangaiah of Machavaram village ...... " -1_
E
Thus the specific prosecution case was that accused 1 to 15 attacked
the deceased and no specific overt act was attributed to any of the
accused. It is true that PW 1 in her evidence stated that A-1 hacked the ,..
deceased on the left side of neck with Y erukala Kathi and the evidence
of doctor PW 8 showed that this is injury No. 2 which proves fatal by
F itself. But in the light of the first information report P-1 and the dying
declaration Ex. P-2 dated 25-6.1981 of P.W. 2 recorded by the Munsiff -.._ ,
Magistrate which w~s_later on treated as statement under section 57 of _ "¥
the Criminal Procedure Code which did not attribute any specific overt
act to any of the appellant accused in this case, this case was not
accepted by the High Court. It is because of this reason the High Court
G did not accept the conviction of the appellants 1 and 2, namely,
accused 1 and 2 under section 302 and section 302 read with section 34,
IPC and altered the conviction into one under. section 302 read with__)
section 149, IPC.

, The learned counsel for the appellant also contended that the
H evidence of PW 1 apart from the fact it was not accepted by the High
K.N. RAO v. STATE OF ANDHRA PRADESH [RAMASWAMI, J.] 881

~ourt in so far as it related to the specific overt acts of A-1, 2, 5 and 11 · A
· are concerned are also not acceptable as they are full of infirmities and
improbalities and also by reason of the possibility of improving the
case. He had pointed out that though PW 2 and deceased were said to
have gone to the Manchineeti Cheruyu (fresh water tank) to verify
whether the paddy bags kept by them for soaking were in tact, paddy B
bags were not found by the investigating officer or anybody and they
were not recovered. The learned counsel also pointed out, the story
>-that PWs 1 and 3 had gone that side for calls of nature are also not
believeable as the place were ladies ease was on the opposite dirction
and not in the direction of the fresh water tank. The house of the

-
deceased and PW 2 and that of PW 4 were about 150 yards away from
_,,,.,.--- the scene of occurrence and the occurrence is stated to have taken c
place at 8.00 P.M. These ladies ran to the scene of occurrence on
hearing the cries of the deceased and PW 2. It was also pointed out
that though they stated that when they (ladies) went to answer the calls
~ of nature they had taken along with them chambus or Iotas with water,
and those chambus or Iotas were not recovered. In her evidence PW I
D
stated that when she found her husband lying dead with number of
injuries and blood everywhere she fell over her husband and wept but
none of her blood stained clothes were recovered or sent for chemical
examination. Similarly PW 3 also stated that when she found her
husband PW 2 injured she carried him but her blood stained clothes
~were also not recovered. Though they had stated before going to the
E
village Munsiff for giving the complaint and after taking PW 2 to· the
house they have changed the clothing their evidence clearly throw a

- doubt as to the presence at the time of occurrence. It should be kept in
mind that PW 1 is the wife of the deceased PW 3 is the wife of the
injured PW 2 and PW 4 is the brother of PW 3. And thus they are all
closely related and the possibility of an exaggeration or of improving in
F
their evidence cannot be ruled out. It may also be pointed out that
V these witnesses stated that there was electric lamp post and the light·
· , was on in the place 'of occurrence, but it is the evidence of the
investigating officer that on the day when the occurrence took place
there wan no electric lamp post and there was no question of any
electric light being on. There is ample evidence of rivalry between the
G
parties also. In these circumstances their presence at the time of
\ occurrence is doubtful and it is also not possible to believe the evidence
)._of PWs 1, 2, 3 and 4 in respect overt acts attributed to the four appel-
lants herein. In fact, as already stated the High Court was not willing
to accept their evidence in this regard and that is why the conviction
~ was made under section 302 read with section 149, IPC. H
882 · SUPREME COURT REPORTS [ 1991] 1 S.C.R.

However, the learned Judges over-looked that since the accused
A who are convicted were only four in number and the prosecution has ~
not proved the involvement of other persons and the courts below
have acquitted all the other accused of all the offences,· section 149
cannot be invoked for convicting the four appellants herein. The
learned Judges were not correct in stating that Al, A2, AS and All
B "can be held to be the members of the unlawful assembly along with
some others unidentified persons' on the facts and circumstances of
this case. The charge was not that accused 1,2, 5 and 11 "and others"-~
or "and other unidentified persons" formed into an unlawful assembly
but it is that "you accused 1 to 15" who formed into an unlawful
assembly. It is not the prosecution case that apart from the said 15
persons there were other persons who were involved in the crime. -~ --
c When the 11 other accused were acquitted it means that their involve-
.-
ment in the offence had not been proved. It would not also be permis-
sible to assume or conclude that others named or unnamed acted con-
jointly with the charged accused in the case unless the charge itself Y
specificaUy said so and there was evidence to conclude that some
D others also were involved in the commission of the offence conjointly
with the charged accused in furtherance of a common object.

In Maina Singh's case (supra) the appellant in that case and four
others were charged with offences under sections 302/149, IPC, the
appellant with having shot at the deceased and the other accused with ~
E giving blows to the deceased with a sharp-edged weapon: The Trial
Court acquitted the four accused and convicted the appellant under
section 302 read with section 34. IPC. The High Court dismissed the
appeal of the State against the acquittal as also the appellants appeal
against the conviction. In the appeal before the Supreme Court it was
contended for the appellant that it was not permissible to take the view
-
F that a criminal act was done by the appellant in furtherance of the
common intention of other co-accused when those accused who had -:;.. ., r
been named had all been acquitted and that all that was permissible for / "
the High Court was to convict the appellant of an offence which he
might have committed in his individual capacity. The head note in the
report brings the ratio of the judgment correctly and that ma~be
G quoted:

"In a given case even if the charge disclosed only the-~
named persons as co-accused and the prosecution witnesses
confined their testimony to them, it would be permissible
to conclude th&t others~ named or unnamed, acted
H co jointly with on~ of the charged accused if there was other
K.N. RAO v. STATE OF ANDHRA PRADESH [RAMASWAMI, J.] 883

evidence to lead to that conclusion, but not otherwise. A
The charge in the present case related to the commission of
the offence of unlawful assembly by the appellant along
with four named co-accused, and with no other person. The
trial in fact went on that basis throughout. There was also
no direct or circumstantial evidence 'to show that the B
offence was committed by the appellant along with any
other unnamed person. So when the other four co-accused
• had been given the benefit of doubt and acquitted, it would
not be permissible to take the view that there must have
been some other person along with the appellant in causing
injuries to the deceased. The appellant would accordingly C
be responsible for the offence, if any, which could be
shown to have been committed by him without regard to
the participation of others."

The facts in the Amar Singh's case (supra) in short were that
seven accused were charged for murder under section 302 read with D
section 149 IPC. Two out of the seven accused were acquitted by the
Trial Court and on appeal the High Court acquitted one more accused.
However, the High Court convicted four of the accused under section
).__ 302 read with section 149 IPC and sentenced them for life imprison-
ment. The four convicted accused appealed to this Court and it was
contended on their behalf that after the acquittal of three accused E
persons out of seven, the appellants who were remaining four cannot
be held to have formed an unlawful assembly within the meaning of
Section 141, IPC and accordingly the charge under section 149 was not
maintainable. Accepting this contention this Court observed:

"As the appellants were only four in number, there was no F
question of their forming an unlawful assembly within the
meaning of section 141 IPC. It is not the prosecution case
that apart from the said seven accused persons, there were
other persons who were involved in the crime. Therefore,
on the acquittal of three accused persons, the remaining
four accused, that is, the appellants, cannot be· convicted G
... under section 148 or section 149 IPC for any offence, for,
the first condition to be fulfilled in designating .an assembly
an 'unlawful assembly' is that such assembly must be of five
ot more persons, as required under section 141 IPC. In our
opinion, the convictions of the appellants under sections
148 and 149 IPC cannot be sustained." · H
884 SUPREME COURT REPORTS (1991) I S.C.R.
\
A The ratio of these judgments are also applicable to the facts and
circumtances of this case.

In the result the appeal of the appellants against the conviction
and sentence under section 302 read with section 149, !PC is allowed
and the same is set aside. We, however, confirm the conviction and
B
sentence of the appellants under the other charges.
..~
R.N.J. Appeal allowed .
•

-