Holding

Section 149 IPC applies; conviction altered to Section 304 Part II read with Section 149.

Summary

Six persons formed an unlawful assembly and attacked Nellisetti Venu, resulting in his death by stabbing. The three appellants (A‑2, A‑3 and A‑6) were alleged to have caught hold of the deceased, while the other accused inflicted the fatal injuries. The appellants contended that they neither used weapons nor shared a common intention to kill, arguing that Section 149 of the IPC should not apply. The Supreme Court held that Section 149 imposes constructive liability based on a common object, not on individual intent, and that the assembly had a common object to cause death. Consequently, the conviction under Section 302 read with Section 149 was altered to conviction under Section 304 Part II read with Section 149, and an eight‑year imprisonment was imposed. The appeal was allowed in part.

Issues considered

Whether Section 149 IPC applies to the appellants who did not personally use a weapon but participated in the unlawful assembly.
Whether a common object of causing death was proved for the assembly of six persons.
Whether the conviction under Section 302 read with Section 149 should be altered to Section 304 Part II read with Section 149.

Legislation cited

Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 304(2), s. 506

Subjects

unlawful assemblycommon objectconstructive liabilitySection 149 IPCmurderculpable homicide not amounting to murderalteration of convictioncriminal law

Judgment

A MUMMIDI HEMADRI AND ORS.
v.
STATE OF ANDHRA PRADESH

MARCH 16, 2007

B [DR. ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]

Penal Code, 1860-s.304Part11 rlw. s.149 & s.302 r/w. s.149-Death
caused by stabbing with knives-Six accused-Conviction of Appellants (A-
C 2, A-3 and A-6) by Courts below under s.302 rlw. s.149-0n appeal, held:
Discrepancy in evidence as to whether Appellants were armed-However,
they facilitated attacks by other accused by catching hold of the deceased-
ln that view s. 149 rightly applied by Courts below-However conviction
altered to one uls.304 Part 11 rlw s.149.

D Penal Code, 1860-ss.149 & 141-'Common object' and 'com.man
intention'-Distinction between.

Words and Phrases-'object' and 'common'-Meaning of-Jn the context
of s. 149 !PC-Discussed.

E According to the prosecution, six persons including the three
Appellants (A-2, A-3 and A-6), formed an unlawful assembly and in pursuance
of their common object caused death of a person by stabbing him with knives.
Trial Court convicted the ~ppellants under s.148 and s.302 r/w. s.149 IPC.
High Court upheld the conviction.

F The pivotal question in the present appeal concerns applicability of
ss.149 IPC. It was pleaded that the Appellants did not make use of any weapon
and there was no common intention to kill the deceased and that even
according to the prosecution the only role attributed to them was that they
caught hold of the deceased while the other accused persons inflicted the
injuries, therefore, Section 149 IPC has no application.
G
Partly a!lowing the appeal, the Court

HELD: 1.1. Section 149 IPC has its foundation on constructive liability
which is the sine qua non for its operation. The emphasis is on the common

H 30
MUMMIDI HEMADRI 1·. ST ATE OF ANDHRA PRADESH 31

object and not on common intention. Mere presence in an unlawful assembly A
cannot render a person liable unless there was a common object and he was
actuated by that common object and that object is one of those set out in Section
141 IPC. Where common object of an unlawful assembly is not proved, the
accused persons cannot be convicted with the help of Section 149 IPC. The
crucial question to determine is whether the assembly consisted of five or
more persons and whether the said persons entertained one or more of the B
common objects, as specified in Section 141 IPC. It cannot be laid down as a
general proposition of law that unless an overt act is proved against a person,
who is alleged to be a member of unlawful assembly, it cannot be said that he
is a member of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of C
the acts which fall within the purview of Section 141 IPC.
(Para 12) (36-G, H; 37-A)

1.2. The word 'object' means the purpose or design and, in order to make
it 'common', it must be shared by all. In other words, the object should be
common to the persons, who compose the assembly, that is to say, they should D
all be aware of it and concur in it A common object may be formed by express
agreement after mutual consultation, but that is by no means necessary. It
may be formert at any stage by all or a few members of the assembly and the
other members may just join and adopt it. Once formed, it need not continue
to be the same. It may be modified or altered or abandoned at any stage. The
expression 'in prosecution of common object' as appearing in Section 149 E
IPC have to be strictly construed as equivalent to 'in order to attain the
common object'. It must be immediately connected with the common object by
virtue of the nature of the object. There must be community of object and the
object may exist only up to a particular stage, and not thereafter. Members of
an unlawful assembly may have community of object up to certain point beyond F
which they may differ in their objects and the knowledge, possessed by each
member of what is likely to be committed in prosecution of their common
object may vary not only according to the information at his command, but
also according to the extent to which he shares the community of object, and
as a consequence of this the effect of Section 149 IPC may be different on
different members of the same assembly. (Para 121"f37-B-C-D-El G
1.3. 'Common object' is different from a 'common intention' as it does
) not require a prior concert and a common meeting of minds before the attack.
It is enough if each has the same object in view and their number is five or
more and that they act as an assembly to achieve that object. The 'common
object' of an assembly is to be ascertained from the acts and language of the H
32 SUPREME COURT REPORTS [2007] 4 S.C.R.

A members composing it, and from a consideration of all the surrounding
circumstances. It may be gathered from the course of conduct adopted by the
members ofth.e assembly. What the common object of the unlawful assembly
is at a particular stage of the incident is essentially a question of fact to be
determined, keeping in view the nature of the assembly, the arms carried by
B the members, and the behaviour of the members at or near the scene of the
incident. It is not necessary under law .that in all cases of unlawful ass~mbly,
with an unlawful common object, the same must be translated into actiori or
be successful. Under the Explanation to Section 141, an asse!Jlbly which was
not unlawful when it was assembled, may subsequently become unlawful. It is
not necessary that the intention or the purpose, which is necessary to render
C an assembly an unlawful one comes into existence at the outset. The time of
forming an unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the course of incident
at the spot eo instante. [Para 13) [37-F-G-H)

D 1.4. Section 149 IPC, consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object
must be one which is committed with a view to accomplish the common 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
E which the accused was a member. Even ifthe offence committed is not in direct ,
prosecution of the common objeet of the assembly, it may yet fall under Section
141 IPC, if it can be held that the offence was such as the members knew was ,
likely to be committed and this is what is required in the second part of the
section. The purpose for which the members of the assembly set out or desired
to 'achieve is the object. If the object desired by all the members is the same,
F the knowledge that is the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved and -~

that is now the common object of the assembly. An object is entertained in the
human mind, ar.d it being merely a mental attitude, no direct evidence can be
available and, like intention, has generally to be gathered from the act which
G the person commits and the result therefrom. Though no hard and fast rule
can be laid down under the circumstances from which the common objeet can
be culled out, it may reasonably be collected from the nature of the assembly,
arms it carries and behaviour at or before or after the scene of occurrence.
The word 'knew' used in the second limb of the' section implies something "-·
more than a possibility and it cannot be made to bear the sense of 'might have
H been known'. Positive knowledge is necessary. When an offence is committed
MUMMIDJ HEMADRJ v. STA TE OF ANDHRA PRADESH 33
in prosecution of the common object, it would generally be an offence which A
the members of the unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does not make the converse
proposition true; there may be cases which would come within the second part
but not within the first part. jPara 141138-C-GI

1.5. The distinction between the two parts of Section 149 IPC, cannot B
be ignored or obliterated. In every case it would be an issue to be determined,
"' whether the offence committed falls within the first part or it was an offence
such as the members of the assembly knew to be likely to be committed in
prosecution of the common object and falls within the second part. However,
there may be cases which would be within first part of the offences committed C
in prosecution of the common object would also be generally, if not always,
within the second part, namely, offences which the parties knew to be likely
committed in the prosecution of the common object.
[Para 14) f38-G-H; 39-A-B]

Chikkarange Gowda and Ors v. State of Mysore, AIR (1956) SC 731 D
and Chanda and Ors. v. State of UP. and Anr., 120041 5 SCC 141, relied on

2.1. Considering the background facts and the roles attributed to the
accused persons it is crystal clear that the accused persons had caught hold
of the deceased and thereafter the attacks by A-4 and A-5 came. A-1 instigated
the other accused persons to attack the deceased. [Para 15) (39-C) E
2.2. There is some discrepancy in the evidence as to whether A-2, A-3
and A-6 were armed. While some of the witnesses stated that they were without
arms, some have specifically stated that they were armed. Their version is
that before the attacks A-2, A-3 and A-6 caught hold of the deceased. In view
of aforesaid background, though Section 149 IPC has to be applied, yet it has F
to be Section 304 Part JI read with Section 149 IPC. The conviction is
accordingly altered. Custodial sentence of 8 years would meet the ends of
justice. [Para 161 (39-Dj

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 359 of G
2007.

From the Final Judgment and Order dated 09.09.2005 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1367
of2003.
H
34 SUPREME COURT REPORTS (2007) 4 S.C.R.

A V.N. Raghupathy for the Appellants.

P. Vinay Kumar and D. Bharathi Reddy for the Respondent.

The Judgment of the Court was delivered. by

B DR. ARIJIT PASA YAT, J. I. Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division
Bench of the Andhra Pradesh High. Court which upheld the conviction of the
appellants for the offence punishable under Sections 148 and 302 read with
Section 149 of the Indian Penal Code, 1860 (in short the 'IPC').
c
3. In all, six ~ccused persons faced trial. The present appeal is by
accused 2, ~ and 6 (in short described as A-2, A-3 and A-6). It is to be noted
that the pres'ent speclal leave petition so far as· it relates to accused l, 4 and ...
'
5 (in short described as A-1, A-4 and A-5). was dismissed by order dated
21.4.2006 while A-4 and A-5 were convicted for the offence punishable under
D Section 302 IPC, A-1, A-2, A-3 and A-6 were convicted for offence punishable
under Section 302 read with Section I49 IPC and each of the accused persons
were convicted for the offence relatable to Section 148 IPC, for which they
were sentenced to suffer rigorous imprisonment for one year and to pay a fine
of Rs. I 00 each with default stipulation. In respect of offence punishable under
E Section 302 read·with Section I 49 IPC each accused was sentenced to undergo
imprisonment for life and to pay a fine of Rs.300/- with default stipulation.

4. Prosecution version as unfolded during trial is as follows:

On 21.10. I 997 at about 5 O'clock near old K.B.S. Office at
F Chinthareddipalem Donka, Stone Housepet, Nellore, the accused persons
formed an unlawful assembly and in pursuance of their common object, they .,
caused the death of one Nellisetti Venu (hereinafter referred to as the 'deceased')
by stabbing with knives.

5. According to the prosecution, PW-2 is the pat.emal uncle's son of the
G deceased. The deceased and the material witnesses were living in Wood
House Sangham in Nellore whereas the accused persons were living in different
localities in Nellore Town. A-1 was doing business in gunny bags at Wood
House Sangham and accused Nos. 2 to 6 were working as coolies. One week
'
before the incident, accused No. I harassed PW-6, who is the daughter in law
H of PW-7. On 20.10.1997 at about 3.00 p.m. PWs 1, 8, 10 Kapu Subba Rao (the
MUMMIDI HEMADRI v. STATE OF ANDHRA PRADESH [PASAYAT,J.] 35
,./
husband of PW-6) and the deceased went to the shop of A-1 and chastised A
A-1 for spreading rumours that PW-6 was having illicit intimacy with one
painter.

6. On 21.10.1997 at about 3.30 p.m. a mediation was held at the shop of
A- I in the presence of mediators PW-9 and one Mekala Ramaiah. Both the
elders advised the parties to settle the dispute amicably. However, A-1 did not B
listen to the said advice, while the deceased stated that it is proper to abide
.)
by the advice of the elders. Since the mediation failed, both the parties left
the place. Subsequently, PWs 1 to 5 and the deceased together joined at
Bhaskar's Tea Stall for discussion about the mediation. Then the deceased
told them that he had to talk to one Gas Dealer near Sivalayam and he started
to go to that place. PWs 1 to 5 accompanied him. On reaching near KBS
c
office, they saw the accused persons. A- I instigated the other accused
persons to attack them. Then all the accused persons surrounded them with
weapons. A-2, A-3 and A-6 caught hold of the deceased. A-4 deajt two blows
with a knife on the back of the deceased. A-5 stabbed the deceased with a
knife on the left side of chest below the ribs and also on the right thigh. D
Seeing this PW's 1 to 5 raised cries. On hearing their cries, number of people
gathered there and upon their arrival, the accused persons went away.
Thereafter, PW's I to 5 shifted the deceased to Government Head Quarters
Hospital in an auto rickshaw. The Doctors examined the deceased and declared
him as dead. After 20 minutes, the Sub-Inspector of Police, on receipt of
telephonic information, came to the hospital and examined PWs 2 to 5. On the
E
same day at about 6.45 p.m. PW-I gave a report (Ex.Pl) to PW-18 whereupon
he registered a case in Crime No.135of1995 under Sections 147, 148, 302 and
506 read with Section 149 IPC and recorded FIR in Ex.P 9. At about 7.30 p.m.
PW-19 the Circle Inspector of Police took up investigation, visited the scene
of offence and recorded the statements of PW's. PW-19 conducted inquest F
over the dead body of the deceased in the presence of PW-14 and another.
During the course of inquest, PW-19 seized M.Os. 4 to 7 from the dead body
of the deceased. At about 1.30 p.m. PW-17 the Civil Assistant Surgeon,
Government Maternity Hospital, conducted autopsy over the dead body of
the deceased and opined that the cause of death was due to shock and
hemorrhage due to multiple injuries as per the post mortem report (Ex.P 7). On G
8.11.1997, PW-19 arrested the accused persons at Ayyappa Swamy Temple,
) Nellore. Later PW-21 the Circle Inspector of Police sent the material objects
to FSL who submitted the report (Ex.P24). On completion of investigation PW-
21 filed charge sheet. The plea of the accused was that of total denial.
H
36 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 7. Twenty one witnesses were examined to further the prosecution
version. PWs I to 5 were claimed to be eye-witnesses. Placing reliance on the
evidence of PWs I to 5 the trial Court recorded the order of conviction.

8. The conviction was challt:nged before the High Comt. The main plank
of the appellants' argument before the High Court was that there were various
B inconsistencies and infirmities and the prosecution has failed to establish its
case beyond reasonable doubt. It was further submitted that there was
discrepancy in the evidence so far as A-1, A-4 and A-5 are concerned. It was
further pleaded that A-2, A-3 and A-6 did not make use of any weapon. There
was no common intention to kill the deceased and even according to the
C prosecution the only role attributed to A-2, A-3 and A-6 was that they caught
hold of the deceased while the other accused persons inflicted the injuries.
Therefore, it was contended that Section 149 IPC has no application.

9. Stand of the.prosecution before the High Court was that there was
D clear cut and direct evidence attributed against all the accused persons and
even though the A-2, A-3 and A-6 did not inflict injuries, they facilitated the
attacks and in that view Section 149 !PC has been rightly applied.

I 0. The High Court found that all the accused persons came together,
they were armed and even though A-2, A-3 and A-6 did not attack the
E deceased, they caught hold of the deceased and that facilitated the attack by
the other accused persons. The High Court found no substance in the plea
of the accused persons and dismissed the appeals.

11. The stand taken by the accused and the prosecution before the High
Court were reiterated in this appeal.
F
12. The pivotal question is applicability of Section 149 IPC. Said provision
has its foundation on constructive liability which is the sine qua non for its
operation. The emphasis is on the common object and not on common
intention. Mere presence in an unlawful assembly cannot render a person
G liable unless there was a common object and he was actuated by that common
object and that object is one of those set out in Section 141 IPC. Where
common object of an unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149 IPC. The crucial question .\
to determine is whether the assembly consisted of five or more persons and
H whether the said persons entertained one or more of the common objects, as
MUMMIDIHEMADR!v.STATEOFANDHRAPRADESH[PASAYAT,J.] 37

specified in Section 141 !PC. It cannot be laid down as a general proposition A
a
of law that unless an overt act is proved against person, who is alleged to
be a member of unlawful assembly, it cannot be said that he is a member of
an assembly. The only thing required is that he should have understood that
the assembly was unlawful and was likely to commit any of the acts which
fall within the purview of Section 141 IPC. The word 'object' means the B
purpose or design and, in order to make it 'common', it must be shared by all.
In other words, the object should be common to the persons, who compose
the assembly, that is to say, they should all be aware of it and concur in it.
A common object may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may be formed at any
stage by all or a few members of the assembly and the other members may. C
just join and adopt it. Once formed, it need not continue to be the same. It
may be modified or altered or abandoned at any stage. The expression 'in·
prosecution of common object' as appearing in Section 149 IPC have to be
strictly construed as equivalent to 'in order to attain the common object'. It
must be immediately connected with the common object by virtue of the
nature of the object. There must be community of object and the object may D
exist only up to a particular stage, and not thereafter. Members of an unlawfol
assembly may have community of object up to certain point beyond which
they may differ in their objects and the knowledge, possessed by eacp
member of what is likely to be committed in prosecution of their common
object may vary not only according to the information at his command, but E
also according to the extent to which he shares the community of object, and
as a consequence of this the effect of Section 149, IPC may be different on
different members of the same assembly.

13. 'Common object' is different from a 'common intention' as it does not
require a prior concert and a common meeting of minds before the attack. It F
is enough if each has the same object in view and their number is five or more
and that they act as an assembly to achieve that object. The 'common object'
of an assembly is to be ascertained from the acts and language of the
members composing it, and from a consideration of all the surrounding
circumstances. It may be gathered from the course of conduct adopted by the G
members of the assembly. What the common object of the unlawful assembly
is at a particular stage of the incident is essentially a question of fact to• be
determined, keeping in view the nature of the assembly, the arms carried by
the members, and the behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases of unlawful assembly,
with an unlawful common object, the same must be translated into action or H
38 SUPREME COURT REPORTS [2007] 4 S.C.R.

A be successful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful. It
is not necessary that the intention or the purpose, which is necessary to
render an assembly an. unlawful one comes into existence at the outset. The
time of forming an unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful, may subsequently
B become unlawful. In other words it can develop during the course of incident
at the spot eo instante.
A.

14. Section 149 IPC, consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object
C must be one which is committed with a view to accomplish the common
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 a member. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may yet fall under
Section 14 l IPC, if it can be held that the offence was such as the members
D knew was likely to be committed and this is what is required in the second
part of the section. The purpose for which the members of the assembly set
out or desired to achieve is the object. If the object desired by all the members
is the same, the knowledge that is the object which is being pursued is shared
by all the members and they are in general agreement as to how it is to be
E achieved and that is now the common object of the assembly. An object is
entertained in the human mind, and it being merely a mental attitude, no direct
evidence can be available and, like intention, has generally to be gathered
from the act which the person commits and the result therefrom. Though no

-
hare( and fast rule can be laid down under the circumstances from which the
common object can be called out, it may reasonably be collected from the
F nature of the assembly, arms it carries and behaviour at or before or after the
scene of occurrence. The word 'knew' used in the second limb of the section
implies something more than a possibility and it cannot be made to bear the
sense of 'might have been known'. Positive knowledge is necessary. When
an offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly knew
G was likely to be committed in prosecution of the common object. That, however,
does not make the converse proposition true; there may be cases which
would come within the second part but not within the first part. The distinction
between the two parts of Section 149 IPC, cannot be ignored or obliterated.
In every case it would be an issue to be determined, whether the offence
H committed falls within the first part or it was an offence such as the members
MUMMIDI HEMADRI v. STA TE OF ANDHRA PRADESH [PASAYA T. J.] 39
of the assembly knew to be likely to be committed in prosecution of the A
common object and falls within the second part. However, there may be cases
which would be within first part of the offences committed in prosecution of
the common object would also be generally, if not always, within the second
part, namely, offences which the parties knew to be likely committed in the
prosecution of the common object. (See Chikkarange Gowda and Ors. v.
State of Mysore, AIR ( 1956) SC 73 I and Chanda and Ors. v. State of UP. and B
Anr., [2004] 5 SCC 141).

15. Considering the background facts and the roles attributed to the
accused persons it is crystal clear that the accused persons had caught hold
of the deceased and thereafter the attacks by the other A-4 and A-5 came. C
A-1 instigated the other accused persons to attack the deceased.

16. There is some discrepancy in the evidence as to whether A-2, A-
3 and A-6 were armed. While some of the witnesses stated that they were
without arms, some have specifically stated that they were anned. Their
version is that before the attacks A-2, A-3 and A-6 caught hold of the. D
deceased. In view of aforesaid background, though Section 149 IPC has to
be applied, yet it has to be Section 304 Part II read with Section 149 IPC. The
conviction is accordingly altered. Custodial sentence of 8 years would meet
the ends of justice.

17. The appeal is allowed to the aforesaid extent. E
B.B.B. Appeal allowed.

(

I
)