Sitaram Kuchhbedia vs. Vimal Rana .

2026 INSC 178
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1837-38 OF 2011


SITARAM KUCHHBEDIA ….APPELLANT(S)

VERSUS

VIMAL RANA AND OTHERS ….RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 1835-36 OF 2011

J U D G M E N T
Mehta, J.
1. Heard.
2. These appeals arise out of the common
th
judgment and order dated 19 July, 2010, rendered
by the Division Bench of the High Court of Madhya
1
Pradesh at Jabalpur in Criminal Appeal Nos. 745
and 774 of 2006, whereby the High Court partly
allowed the appeals preferred by the accused,
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2026.02.23
18:14:29 IST
Reason:

1
Hereinafter, referred to as the “High Court”.
1


namely, Roop Singh, Mukesh Gujar s/o Phool Singh,
Pintu @ Jitendra Kumar, Ajju @ Ajay Singh, Baddu
@ Badda, Vimal Rana, Dhanraj, Kehari Singh, Parath
Singh, Meharban Singh, Phool Singh, Durjan Gujar,
Paggal @ Bal Kishan, Bhagwan Gujar, Prakash
Gujar, Mukesh Gujar s/o Rustom Gujar, Gudda @
Meharban, Malkhan Singh, Pappu @ Pushpendra
Gujar.
3. The accused persons were put to trial before the
2
learned Special Judge (Atrocities), Narsinghpur, in
Special Case No. 51 of 2004. Upon conclusion of the
th
trial, vide judgment and order dated 7 April, 2006,
the accused were convicted for the offences
punishable under Section 148 of the Indian Penal
3
Code and Sections 323, 325, and 302 read with
Section 149 IPC, and were sentenced in the terms set
out below: -

2
Hereinafter, referred to as the “trial Court”.
3
For short, ‘IPC’.
2

4. In appeal, the High Court, the impugned
vide
judgment, toned down the conviction recorded for the
offence punishable under Section 302 read with
Section 149 IPC and altered the same to that
punishable under Section 304 Part II read with
Section 149 IPC, holding that the case would fall
within the ambit of culpable homicide not amounting
to murder. The convictions and sentences recorded
by the trial Court for the offences punishable under
Sections 148, 323 read with 149 IPC, and 325 read
with 149 IPC were, however, maintained.
5. Consequent upon the toning down of the offence
from one punishable under Section 302 IPC, the
sentence of life imprisonment imposed by the trial
Court was set aside and the accused persons were
sentenced to undergo rigorous imprisonment for a
period of six years along with fine of Rs.5,000/- each,
and in default whereof, to further undergo rigorous
imprisonment for one year for the offence punishable
under Section 304 Part II read with Section 149 IPC.

3


Factual Background
6. Succinctly stated, the facts germane for
adjudication of the present appeals are set out
hereinbelow.
7. A Dehati Nalishi (Exh.P/2) was lodged by the
4
informant Late Shri Sitaram Kuchhbedia (PW-1) , on
th
11 July, 2003 at about 9:00 p.m. at the Government
Hospital, Gadarwada, to Shri B.K. Pathak (PW-11),
SHO, Police Station Paloha Bada.
8. It was inter alia alleged in the Dehati Nalishi
(Exh.P/8), that at about 08:00 p.m. on the same day,
while he was at Gadarwada, the informant-appellant
received information that his brother Bhaggu @ Bhag
Chand, who had gone to Bhatera Ghat for bathing in
the river Narmada and was returning in a Jeep, had
been assaulted by persons belonging to the Gujar
community of village Khairi. Upon receiving this
information, the informant-appellant immediately
proceeded towards the place of occurrence in his
Sumo vehicle along with Kanchan (driver), Sanju
Chouksey, and Ganesh Yadav. On the way, near the

4
Hereinafter, referred to as the “informant-appellant”. The
informant-appellant has since expired and stands substituted
through his legal heir Shri Dhanraj Gangapri ( vide Interlocutory
Application No.185690 of 2025).
4


agricultural field of Ekant Jain, he noticed a mini bus
belonging to Banti Dube, in which the Bhaggu @
Bhag Chand was being taken to Gadarwada. Gudda
Maharaj and Guddu Patel, were also present in the
vehicle and both were injured. The informant-
appellant boarded the bus and accompanied his
brother.
9. It is alleged that Bhaggu @ Bhag Chand was
conscious at that time. On being asked about the
occurrence, he stated that at about 7:15 p.m., while
returning from Bhatera Ghat, he found that the road
was obstructed by placing tube-well pipes across the
passage. When he stopped the mini bus, he was
surrounded and assaulted by numerous persons.
Bhaggu @ Bhag Chand further stated that earlier in
the day, at about 02:00 p.m., he had intervened when
the sons of one of the accused, namely, Vimal Rana
were beating Sharan Dubey, and on that account, the
accused persons had assaulted him (Bhaggu) with
. Additionally, Purshottam Sahu (PW-4), Kulhad
lathis
Baba (PW-2), Ashok Kori (PW-3), Guddu Patel, and
Gudda Maharaj (PW-5) were also assaulted in the
same incident and sustained injuries. The informant-
appellant accompanied his injured brother Bhaggu @
5


Bhag Chand to the Government Hospital,
5
Gadarwada. While Bhaggu @ Bhag Chand was
undergoing treatment, he succumbed to the injuries.
The prosecution’s case is that the deceased-Bhaggu
died as a result of the injuries sustained in the
assault.
10. On the basis of the aforesaid Dehati Nalishi
(Exh.P/2), a formal First Information Report
(Exh.P/34), being Crime No. 28 of 2003, came to be
registered for the offences punishable under Sections
147, 148, 149, 307, 302 of IPC and Section 3(2)(v) of
the Scheduled Castes and Scheduled Tribes
6
(Prevention of Atrocities) Act . After conducting the
inquest proceedings, the body of the deceased-
Bhaggu was forwarded for post-mortem examination,
and a Merg intimation (Exh.P/35) was also prepared.
The injured persons were referred to the Government
Hospital, Gadarwada, for medico-legal examination,
radiological investigation and treatment.
11. As per the post-mortem report (Exh.P/8), the
following ante-mortem injuries were found on the
body of the deceased-Bhaggu: -

5
Hereinafter, referred to as the “deceased-Bhaggu”.
6
For short, ‘SC/ST Act’
6



1. Contusion 2.5 x 3 cm over the right subscapular
region.
2. Multiple superficial abrasions 9 cm x 2 cm to 1/4
cm x 1/4 cm on the right shoulder and right side
of the back.
3. Contusion 14 cm x· 3 cm over the right lumbar
region.
4. Contusion 4 x 2 cm x 2 cm on right upper back.
5. Lacerated wound 1 x 1 cm x bone deep, left arm
with fracture of the humerus bone lower end.
6. Contusion 11 x 4 cm over left thigh.
7. Contusion 6 x 4 cm over left thigh.
8. Contusion 8 x 4 cm on left thigh lower end,
contusion 3 x 2 cm over left calf.
9. Contusion 23 x 4 cm left mid back.
10. Contusion 18 x 4 cm over the upper shoulder.
11. Contusion 11 x 3 cm over left shoulder.
12. Contusion 5 x 4 cm over left upper arm.

13. Sup. Friction abrasion 6 x 3 cm left upper back.
14. Sup. Friction abrasion 6 x 4 cm left elbow.
15. Sup. Friction abrasion 7 x 3 left forearm.
16. Lacerated wound 1 x 1/2 x 1/4 cm over left-hand
dorsum.
17. Multiple Sup. Friction abrasion 4 x 1 cn-1 to 1/8
cm x 1/8 cm over the left abdomen and chest.
18. Sup. Friction abrasion 7 x 2 cm over the left shin.
19. Sup. Friction abrasion 4 x 2 cm over the left
medial calf.
20. Lacerated 1 cm x 1/2 x 1/2 cm over shin.
21. Lacerated wound 8 x 1/2 x 1/2 cm over the right
shin below injury no.20.

22. Contusion 12 x 3 cm over the right post calf.
7



23. Multiple Sup. Abrasion 4 cm x 1/2 cm x 1/8 cm x
1/8 cm over the right knee.
24. Lacerated wound 5 x 2 cm x bone deep over left
parietal scalp.
25. Lacerated wound 4 cm x 2 cm x bone deep, left
lower parietal scalp, lateral to injury no. 24.
26. Lacerated wound 3 cm x 1 cm x bone deep, left
temporal region, obliquely placed.
27. Lacerated wound 2 cm x 1/2 cm x bone deep over
left
28. Lacerated 1 x 1/2 cm x 1/4 cm over left eye brow.
29. Lacerated wound 1/2 x 1/2 cm over forehead.
12. The medical jurist Dr. N.K. Bajpai noted his
opinion for the cause of death as below:
“A fresh linear fracture measuring 7 cm in
length was found over the left parietal bone,
obliquely placed, accompanied by extradural and
subarachnoid haemorrhage. There was congestion
of the underlying fronto-parietal region,
corresponding to Injury No.24.”

13. During the course of investigation, the
Investigating Officer prepared the spot map and
panchnama of the place of occurrence. A damaged
grey-coloured Marshal Jeep bearing registration No.
MP-49-D-0235 was seized from the spot, blood stains
being noticed on its front portion. Blood-stained and
control soil, broken glass pieces, blood-stained seat
covers, and other articles were recovered from the
vehicle and the surrounding area. Certain personal
8


and religious articles found inside the vehicle, along
with a blood-stained stone, were also seized. Blood
was scraped from the vehicle door, and a sealed
packet containing the clothes of the deceased-
Bhaggu @ Bhag Chand, was taken into possession.
The seized articles were sent for forensic
examination.
14. Further, documentary proof relating to the caste
of Bhaggu @ Bhag Chand was collected. A list
containing the names of the accused persons was
also obtained from the informant-appellant
(Exh.P/1).
15. Upon completion of the preliminary
investigation, the accused persons were taken into
custody. On the basis of the disclosures made by the
accused persons, namely Bhalu @ Hari Shanker,
Munnalal @ Devi Singh, Phool Singh, Prakash
Gurjar, Ajju @ Ajay, Pintu @ Jitendra, Mukesh
Gurjar, Roop Singh (Panda), Vimal Rana, Dhanraj
Singh, Sultan @ Sulkhan, Gudda @ Meharban,
Pappu @ Pushpendra and Kehar Singh, under
7
Section 27 of the Indian Evidence Act, 1872 , lathis

7
Hereinafter, referred to as the “Evidence Act, 1872”.
9


were recovered from the places disclosed by them.
Pursuant to the disclosure statement given by
accused Baddu @ Badda, a bent stick was recovered
from the place disclosed by him. All the seized articles
were forwarded to the Forensic Science Laboratory,
Sagar, for examination through the Superintendent
of Police. Thereafter, the statements of the witnesses
were recorded. The previous criminal records of some
of the accused, namely, Parath Singh @ Paras Singh,
Gudda @ Meharban Gurjar, and Meharban, were also
collected.
16. Upon completion of investigation, the police
filed a report under Section 173(2) of the Criminal
8
Procedure Code, 1973 before the competent court.
The case was committed to the Sessions Court for
trial which framed charges against the charge-
sheeted accused, namely, Roop Singh, Bhalu @ Hari
Shankar, Mukesh Gujar, Pintu @ Jitendra Kumar,
Ajju @ Ajay Singh, Baddu @ Badda, Vimal Rana,
Dhanraj, Munna Lal, Kehari Singh, Parath Singh,
Meharban Singh, Phool Singh, Durjan Gujar, Paggal
@ Bal Kishan, Bhagwan Gujar, Prakash Gujar,

8
For short, ‘CrPC’.
10


Mukesh Gujar, Gudda @ Meharban, Malkhan Singh,
Pappu @ Pushpendra Gujar, Sulkhan @ Sultan, for
the offences punishable under Sections 148, 294,
and 506-B IPC, Sections 323 and 325 read with
Section 149 IPC, Section 302 read with Section 149
IPC, and Section 3(2)(v) of the SC/ST Act.
17. The accused persons abjured their guilt and
claimed trial.
18. In order to bring home the charges, the
prosecution examined 13 witnesses and exhibited 97
documents.
19. In their statements under Section 313 CrPC, the
accused denied the prosecution allegations in toto
and asserted that they had been falsely implicated on
account of political rivalry and caste factionalism.
Accused Parath Singh, Malkhan Singh, Ajju @ Ajay
Singh, Mukesh Gujar, Kehari Singh, and Durjan
specifically set up a plea of alibi , contending that they
were not present at the place of occurrence at the
relevant time.
20. In defence, the accused examined Sarman (DW-
1), Beni Ram (DW-2), Daya Shankar (DW-3), and
M.A. Qureshi (DW-4). It is essential to note here that
the Medical Officer, namely, Dr. N.K. Bajpai, who
11


conducted the post-mortem examination upon the
body of the deceased (Bhaggu), was available before
th
the trial Court for deposition on 5 February, 2005.
On that day, the counsel representing the accused
admitted the post-mortem report, which was
accordingly marked as Exh.P/8. In view of such
admission, the Public Prosecutor chose to give up the
witness-Dr. N.K. Bajpai instead of examining him on
oath. Accordingly, the trial Court discharged the
medical jurist.
21. The trial Court, upon hearing the rival
submissions and appreciation of the medical and
ocular evidence, recorded a finding that the
deceased-Bhaggu met a homicidal death, the post-
mortem report (Exh.P/8) disclosing as many as 29
injuries, including a fatal head injury. The injuries
sustained by Kulhad Baba @ Shahfaz Khan (PW-2),
Purshottam Sahu (PW-4) and Deen Dayal (PW-9)
were held to be grievous, whereas those suffered by
Ashok Kori (PW-3), Guddu @ Arvind, and Gudda alias
Sandeep (PW-5) were found to be simple in nature.
22. Placing implicit reliance on the testimony of the
injured eye-witnesses, namely Kulhad Baba @
Shahfaz Khan (PW-2), Ashok Kori (PW-3), Dabbu @
12


Purshottam Sahu (PW-4), Gudda alias Sandeep (PW-
5) and the independent witness Deen Dayal (PW-9),
and finding their version to be duly corroborated by
the medical evidence, the trial Court held their
presence at the scene of occurrence to be natural and
trustworthy.
23. The trial Court further discarded the objections
regarding the delay in recording statements under
Section 161 CrPC and non-examination of certain
witnesses, holding that the testimony of the injured
witnesses inspired confidence.
24. The Dehati Nalishi (Exh.P/2) and the list of
accused persons (Exh.P/1) were approached with
circumspection, the trial Court expressing doubt
regarding their truthfulness and genuineness.
Nevertheless, the Court found that the direct ocular
testimony of the injured witnesses independently and
convincingly established the participation of the
accused in the assault. The defence of alibi taken by
some of the accused was disbelieved as the
documentary evidence produced in support thereof
was found to be unreliable.
13


25. Consequently, the trial Court vide judgment
th 9
dated 7 April, 2006 held that the accused persons ,
namely, Roop Singh, Mukesh Gujar s/o Phool Singh,
Pintu @ Jitendra Kumar, Ajju @ Ajay Singh, Baddu
@ Badda, Vimal Rana, Dhanraj, Kehari Singh, Parath
Singh, Meharban Singh, Phool Singh, Durjan Gujar,
Paggal @ Bal Kishan, Bhagwan Gujar, Prakash
Gujar, Mukesh Gujar s/o Rustom Gujar, Gudda @
Meharban, Malkhan Singh, Pappu @ Pushpendra
Gujar, had formed an unlawful assembly armed with
lathis , and in prosecution of the common object,
concertedly assaulted the deceased-Bhaggu and the
injured persons by blunt weapons. The necessary
ingredients of Sections 148, 323/149, 325/149, and
302/149 IPC were thus held proved against the
convicted accused-respondents beyond all manner of
doubt. However, the charges under the SC/ST Act
and offences under Sections 294 and 506 IPC were
not found proved.
26. The trial Court extended the benefit of doubt to
some of the accused persons, namely, Bhalu @ Hari

9
Hereinafter, referred to as the “accused-respondents”.
14


Shankar, Sulkhan @ Sultan, and Munna Lal, and
consequently acquitted them.
27. In appeal, preferred by the accused-
respondents, the High Court, upon reappreciation of
the evidence, observed that though the deceased-
Bhaggu had sustained numerous injuries and
several prosecution witnesses had also suffered
injuries, the medical evidence indicated that the
death of Bhag Chand was attributable to a single
head injury. It was held that the death was not the
cumulative result of all the injuries sustained by the
deceased. Proceeding on this premise, the High Court
held that the common object of the unlawful
assembly could not be inferred to be the commission
of murder.
28. The High Court further reasoned that the fatal
injury appeared to be the individual act of one
assailant, and since the prosecution had not led
evidence to establish the identity of the accused who
caused that injury, it would be unsafe to sustain the
conviction of all the accused-respondents under
Section 302 read with Section 149 IPC. The High
Court thus opined that the requirements of a
15


common object to commit murder were not proved
beyond a reasonable doubt.
29. The High Court found that though the intention
to cause death could not be attributed to the
accused-respondents, nonetheless, taking note of the
fact that all the accused were armed with lathis and
had participated in the assault, they could be
attributed with the knowledge that their acts,
committed in furtherance of the common object of the
unlawful assembly, were likely to cause death. On
this reasoning, the conviction was altered from
Section 302 read with Section 149 IPC to Section 304
Part II read with Section 149 IPC, while the conviction
and sentences for the remaining offences were
maintained.
30. In view of the modification of the conviction, the
punishment of rigorous imprisonment for life
awarded by the trial Court was set aside, and instead,
the accused-respondents were sentenced to undergo
rigorous imprisonment for six years and to pay a fine
of Rs.5,000/- each for the offence punishable under
Section 304 Part II read with Section 149 IPC. In the
event of default in payment of fine, they were further
16


required to undergo rigorous imprisonment for a
period of one year.
31. The said judgment now forms the subject
matter of challenge in the present appeals by special
leave preferred by the de facto complainant and the
State. The accused-respondents have, of course,
accepted the findings of the High Court.
Submissions on behalf of the appellants
32. Learned counsel appearing for the appellants
fervently and vehemently contended that the High
Court committed serious error in interfering with the
finding of conviction recorded by the trial Court,
which, after a careful appreciation of the entire
material on record and placing reliance on the
testimony of five injured eye-witnesses along with the
medical and other corroborative evidence, had rightly
convicted the accused-respondents for the offence of
murder punishable under Section 302 read with
Section 149 IPC. It was submitted that the alteration
and toning down of the conviction by the High Court
from Section 302 r/w 149 IPC to one under Section
304 Part II r/w 149 IPC, coupled with the reduction
of sentence to six years’ rigorous imprisonment, is
perverse and legally unsustainable.
17


33. It was urged that the assault was neither casual
nor accidental, but deliberate and premeditated.
Learned counsel drew the Court’s attention to the
statement attributed to the deceased-Bhaggu that
earlier on the same day, at about 2:00 PM, he had
intervened when the sons of Vimal Rana were
assaulting Sharan Dubey. It was urged that this
intervention furnished the immediate motive to the
accused-respondents for the subsequent attack and
lent support to the assertion that the assault was not
a chance occurrence, but a retaliatory act carried out
with deliberation. Further, attention was drawn to
the medical evidence to show that a total of 63
injuries were caused to the victims, out of which 29
injuries were inflicted on the deceased alone,
including five serious injuries on the skull area.
Reliance was placed upon recent decisions of this
10
Court in Chunni Bai v. State of Chhattisgarh
11
and Mahadeo Sahni and Ors. v. State of Bihar
to contend that where multiple grievous injuries are
inflicted on the victim/s by members of an unlawful

10
2025 SCC OnLine SC 955
11
(2002) 6 SCC 656.
18


assembly, the common object to cause death can
legitimately be inferred.
34. It was submitted that the facts/evidence and
corroborative material available on record unerringly
indicate that the offence committed by the accused
would fall within the ambit of Section 302 IPC, and
not under Section 304 Part II IPC. Learned counsel
urged that the manner of assault and the nature of
injuries sustained demonstrate both the intention
and the knowledge attributable to the accused that
their acts were imminently dangerous and bound to
cause death. It was contended that such deliberate
conduct could not, in law, be ignored so as to tone
down the offence to one of culpable homicide not
amounting to murder, and that the alteration of the
conviction to Section 304 Part II IPC resulted in an
unwarranted dilution of criminal liability.
35. It was further contended that once vicarious
liability under Section 149 IPC had been invoked, the
question as to the individual act of the accused who
inflicted the fatal blow to the deceased became
inconsequential. Learned counsel submitted that
Section 149 IPC fastens vicarious liability upon each
member of the unlawful assembly for acts committed
19


in prosecution of the common object. It was urged
that the post mortem report (Exh.P/8) was admitted
by the accused-respondents and the same
conclusively establishes the existence of multiple
injuries all over the body of the deceased, with five on
the vital part, i.e., head. Emphasis was laid on the
fact that the deceased had sustained multiple
injuries, and the ocular testimony disclosed the
concerted participation of all the accused in the
assault, a position which, according to counsel,
found acceptance with the trial Court and was
affirmed by the High Court. It was thus urged that
the consequence of the fatal injury caused to
deceased-Bhaggu would have to be fastened
collectively to all the accused-respondents,
irrespective of the identity of the individual who
inflicted the fatal injury.
36. It was, thus, prayed that the appeal be allowed
and the impugned judgment be set aside while
restoring that of the trial Court.




20


Submissions on behalf of the accused-
respondents

37. Per contra , learned counsel appearing on behalf
of the accused-respondents supported the impugned
judgment and urged that, as per the post-mortem
report (Exh.P/8), the deceased-Bhaggu had
sustained 29 injuries, of which 28 were simple in
nature, and only one injury resulted in fracture of the
parietal bone. The prosecution had failed to establish
the identity of the accused who inflicted the said fatal
injury.
38. Learned counsel further submitted that the
weapons allegedly used in the incident were sticks
( lathis ), which were not, per se, deadly weapons. It
was urged that the prosecution witnesses had made
omnibus allegations and had not attributed any
specific overt act to individual accused.
39. It was further submitted that there was no
intention on the part of the accused-respondents to
cause the death of Bhag Chand, and the common
object of the assembly was merely to chastise him, a
circumstance, it was submitted, manifested from the
fact that most of the injuries were aimed on non-vital
21


parts of the body. Emphasis was laid on the fact that,
save for the injury on head, the remaining injuries
did not contribute to the death of Bhaggu @ Bhag
Chand. On these premises, it was contended that, at
the highest, the offence could not have travelled
beyond Section 304 Part II, if not Section 325 read
with Section 149 IPC, as was rightly held by the High
Court.
40. Learned counsel further pointed out that the
doctor who conducted the post-mortem examination
was not examined during the trial. It was urged that
in the absence of the author of the post-mortem
report (Exh.P/8) entering the witness box, the
prosecution version regarding the precise cause of
death and the effect of the injuries lacked proper
medical substantiation and corroboration.
41. Learned counsel, therefore, prayed that the
appeal be dismissed, submitting that the High Court
had rightly toned down the conviction of the accused-
respondents to one under Section 304 Part II read
with Section 149 IPC, which does not warrant any
interference in these appeals.


22


Discussion and Analysis
42. We have given our anxious consideration to the
submissions advanced at the Bar and have carefully
perused the judgments passed by the High Court, as
well as the trial Court, and the material available on
record.
43. It is pertinent to note that the accused-
respondents have not assailed the judgment of the
High Court by filing any appeal thereagainst seeking
further interference with the findings recorded
therein holding them guilty for the offences. Thus,
the applicability of Section 149 IPC so as to hold the
accused-respondents to be members of the unlawful
assembly is no longer in question as the said findings
have attained finality.
44. In this backdrop, the controversy which
survives for consideration before this Court lies
within a narrow compass, that is, whether the case
as set up by the prosecution would attract the offence
of murder punishable under Section 302 IPC, or
whether the same would fall within the ambit of
culpable homicide not amounting to murder
punishable under Section 304 Part II IPC. At this
juncture, it becomes apposite to advert to the
23


distinction between culpable homicide amounting to
murder and culpable homicide not amounting to
murder. The question as to which acts would
constitute murder and which would fall within the
category of culpable homicide not amounting to
murder has long posed a complex and nuanced
challenge before the courts. The classification
between the two offences, though subtle, is of
considerable legal significance and often
determinative of criminal liability. The discussion
undertaken by this Court in Daya Nand v. State of
12
Haryana , would be instructive for the present
purpose. The relevant extracts are reproduced
below:-
“ 10. The crucial question is as to which was the,
appropriate provision to be applied. In the scheme
of the I PC culpable homicide is genus and
1
murder its specie. All ‘murder’ is ‘culpable
homicide’ but not vice- versa. Speaking generally,
‘culpable homicide’ sans ‘special characteristics of
murder is culpable homicide not amounting to
murder’. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence,
the IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called,
‘culpable homicide of the first degree’. This is the
gravest form of culpable homicide, which is defined
in Section 300 as ‘murder’. The second may be
termed as ‘culpable homicide of the second degree’.

12
(2008) 15 SCC 717: AIR 2008 SC 1823.
24


This is punishable under the first part of Section
304. Then, there is ‘culpable homicide of the third
degree’. This is the lowest type of culpable homicide
and the punishment provided for it is also the
lowest among the punishments provided for the
three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.

11. The academic distinction between ‘murder’ and
‘culpable homicide not amounting to murder’ has
always vexed the Courts. The confusion is caused,
if Courts losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the
interpretation and application of these provisions
seems to be to keep in focus the keywords used in
the various clauses of Sections 299 and 300. The
following comparative table will be helpful in
appreciating the points of distinction between the
two offences:

25

26


in the ordinary way of nature be sufficient to cause
death of a person in normal health or condition. It
is noteworthy that the ‘intention to cause death’ is
not an essential] requirement of Clause (2). Only
the intention of causing the bodily injury coupled
with the offender's knowledge of the likelihood of
such injury causing the death of the particular
victim, is sufficient to bring the killing within the
ambit of this clause. This aspect of Clause (2) is
borne out by illustration (b) appended to Section
300.

13. Clause (b) of Section 299 does not postulate
any such knowledge on the part of the offender.
Instances of cases falling under Clause (2) of
Section 300 can be where the assailant causes
death by a fist blow intentionally given knowing
that the victim is suffering from an enlarged liver,
or enlarged spleen or diseased heart and such blow
is likely to cause death of that particular person as
a result of the rapture of the liver, or spleen or the
failure of the heart, as the case may be. If the
assailant had no such knowledge about the disease
or special frailty of the victim, nor an intention to
cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the
offence will not be murder, even if the injury which
caused the death, was intentionally given. In
Clause (3) of Section 300, instead of the words
‘likely to cause death’ occurring in the
corresponding Clause (b) of Section 299, the words
“sufficient in the ordinary course of nature to cause
death” have been used. Obviously, the distinction
lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course
of nature to cause death. The distinction is fine but
real and if overlooked, may result in miscarriage of
justice. The difference between Clause (b) of Section
299 and Clause (3) of Section 300 is one of the
degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is
27


the degree of probability of death which determines
whether a culpable homicide is of the gravest,
medium or the lowest degree. The word ‘likely’ in
Clause (b) of Section 299 conveys the sense of
probable as distinguished from a mere possibility.
The words “bodily injury…sufficient in the ordinary
course of nature to cause death” mean that death
will be the “most probable” result of the injury,
having regard to the ordinary course of nature.

14. For cases to fall within Clause (3), it is not
necessary that the offender intended to cause
death, so long as the death ensues from the
intentional bodily injury or injuries sufficient to
cause death in the ordinary course of
nature. Rajwant v. State of Kerala , AIR 1966 SC
1874 is an apt illustration of this point.

15. In Virsa Singh v. State of Punjab , 1958 SCR
1495 : 1958 CLJ 818, Vivian Bose, J. speaking for
the Court, explained the meaning and scope of
Clause (3). It was observed that the prosecution
must prove the following facts before it can bring a
case under Section 300, “thirdly”. First, it must
establish quite objectively, that a bodily injury is
present; secondly the nature of the injury must be
proved. These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular injury, that is to
say, that it was not accidental or unintentional, or
that some other kind of injury was intended. Once
these three elements are proved to be present, the
enquiry proceeds further, and fourthly it must be
proved that the injury of the type just described
made up of the three elements set out above was
sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective
and inferential and has nothing to do with the
intention of the offender.

28


16. The ingredients of clause “Thirdly” of Section
300, IPC were brought out by the illustrious Judge
in his terse language as follows:
To put it shortly, the prosecution must prove
the following facts before it can bring a case under
Section 300, “thirdly”.
First, it must establish, quite objectively,
that a bodily injury is present.
Secondly, the nature of the injury must be
proved. These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury,
that is to say that it was not accidental or
unintentional, or that some other kind of injury
was intended. Once these three elements are
proved to be present, the enquiry proceeds further
and
Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above is sufficient to cause death
in the ordinary course of nature. This part of the
enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.

17. The learned Judge explained the third
ingredient in the following words (at page 468):
The question is not whether the prisoner
intended to inflict a serious injury or a trivial one
but whether he intended to inflict the injury that is
proved to be present. If he can show that he did
not, or if the totality of the circumstances justify
such an inference, then of course, the intent that
the section requires is not proved. But if there is
nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is
that he intended to inflict it. Whether he knew of
its seriousness or intended serious consequences,
is neither here or there. The question, so far as the
intention is concerned, is not whether he intended
to kill, or to inflict an injury of a particular degree
of seriousness but whether he intended to inflict
29


the injury in question and once the existence of the
injury is proved the intention to cause it will be
presumed unless the evidence or the
circumstances warrant an opposite conclusion.

18. These observations of Vivian Bose, J. have
become locus classicus. The test laid down by Virsa
Singh's case (supra) for the applicability of clause
“Thirdly” is now ingrained in our legal system and
has become part of the rule of law. Under clause
thirdly of Section 300 IPC, culpable homicide is
murder, if both the following conditions are
satisfied : i.e. (a) that the act which causes death is
done with the intention of causing death or is done
with the intention of causing a bodily injury; and
(b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause
death. It must be proved that there was an
intention to inflict that particular bodily injury
which, in the ordinary course of nature, was
sufficient to cause death, viz., that the injury found
to be present was the injury that was intended to
be inflicted.

19. Thus, according to the rule laid down in Virsa
Singh's case , even if the intention of accused was
limited to the infliction of a bodily injury sufficient
to cause death in the ordinary course of nature,
and did not extend to the intention of causing
death, the offence would not be murder.
Illustration (c) appended to Section 300 clearly
brings out this point.

20. Clause (c) of Section 299 and Clause (4) of
Section 300 both require knowledge of the
probability of the act causing death. It is not
necessary for the purpose of this case to dilate
much on the distinction between these
corresponding clauses. It will be sufficient to say
that Clause (4) of Section 300 would be applicable
where the knowledge of the offender as to the
30


probability of death of a person or persons in
general as distinguished from a particular person
or persons - being caused from his imminently
dangerous act, approximates to a practical
certainty. Such knowledge on the part of the
offender must be of the highest degree of
probability; the act having been committed by the
offender without any excuse for incurring the risk
of causing death or such injury as aforesaid.

21. The above are only broad guidelines and not
cast-iron imperatives. In most cases, their
observance will facilitate the task of the Court. But
sometimes the facts are so intertwined and the
second and the third stages so telescoped into each
other that it may not be convenient to give a
separate treatment to the matters involved in the
second and third stages.

22. The position was illuminatingly highlighted by
this Court in State of Andhra
Pradesh v. Rayavarapu Punnayya , (1976) 4 SCC
382 : 1977 CLJ 1 Abdul Waheed Khan @
Waheed v. State of Andhra Pradesh , 2002 SCC
OnLine SC 792 : 2002 Supp (1) SCR 703; Augustine
Saldanha v. State of Karnataka , 2003 SCC OnLine
SC 9052003 CLJ 4458, Thangiya v. State of T.N. ,
(1977) 4 SCC 600 (2): 2005 CLJ 684 and
in Rajinder v. State of Haryana , 2005 SCC OnLine
SC 227:—2006 CLJ 2926.”

45. To appreciate the conceptual as well as practical
distinction between these two offences in a clearer
perspective, it may be useful to bear in mind the
overlapping yet distinct contours of Sections 299 and
300 IPC. The relationship between the two
provisions, often described as one of genus and
31


species, may be illustratively understood in the
manner indicated below: -
46. From the above conspectus, it emerges that
when a Court is confronted with the question
whether the offence disclosed by the proved facts is
“murder” or “culpable homicide not amounting to
murder,” it would be appropriate to approach the
issue in a structured manner comprising three
stages.
47. At the first stage, the Court must determine
whether the accused has committed an act which has
caused the death of another, that is to say, whether
the case involves a homicide. If such causal
connection between the act of the accused and the
32


death is established, the enquiry then proceeds to the
second stage, that is to say, whether the act so
committed amounts to “culpable homicide” within
the meaning of Section 299 IPC.
48. If the answer to this question is prima facie in
the affirmative, the Court must then enter upon the
third stage of enquiry, viz. , whether the facts proved
by the prosecution bring the case within the ambit of
any of the four clauses of Section 300 IPC, which
define murder. If the case does not fall within any of
the four clauses of Section 300, the offence would be
culpable homicide not amounting to murder,
punishable under either Part I or Part II of Section
304 IPC, depending upon whether the case attracts
the second or the third clause of Section 299 IPC.
49. Even if the case falls within the four clauses of
Section 300 IPC, the Court must further examine
whether any of the Exceptions to Section 300 IPC are
attracted. If the case is covered by any such
Exception, the offence would fall back to Section 299,
that is, culpable homicide not amounting to murder.
50. We shall now examine the present case in the
light of the aforesaid principles.
33


51. Upon a comprehensive appraisal of the evidence
on record, both the Courts below have concurrently
recorded a finding that the death of Bhaggu @ Bhag
Chand was homicidal in nature. The post-mortem
report (Exh.P/8) revealed as many as 29 injuries on
the body of the deceased-Bhaggu, including a
significant injury on the head, i.e., injury No.24. The
dimensions and impact of the injury are recorded in
the post-mortem report (Exh.P/8) as below: -
“A fresh linear fracture measuring 7 cm in length
over the left parietal bone, obliquely placed,
accompanied by extradural and subarachnoid
haemorrhage, having congestion of the underlying
fronto-parietal region, corresponding to Injury
No.24.”

52. At the cost of repetition, it may be noted that the
post mortem report (Exh. P/8) was admitted by the
accused-respondents and hence the observations
and findings noted therein stand proved beyond the
pale of doubt.
53. The medical opinion as expressed in the post
mortem report (Exh. P/8) attributed the cause of
death to coma resulting from the head injury which
caused extensive damage to the skull bones and the
brain tissue. The ocular testimony of the injured eye-
34


witnesses was found consistent and reliable,
establishing that the deceased-Bhaggu was
assaulted by the accused-respondents with lathis .
The High Court, while differing with the trial Court
on the nature of the offence, did not disturb the
finding that there existed a direct causal connection
between the injuries inflicted by the accused-
respondents and the death of the deceased-Bhaggu.
In view of these concurrent findings, the first and
second stages of the enquiry stand satisfied, namely,
that the accused-respondents committed an act
which resulted in the death of the deceased-Bhaggu.
The proved facts thus satisfy the ingredients of
Section 299 IPC and bring the case within the ambit
of culpable homicide. The enquiry, therefore, narrows
down to whether the case would fall within the four
corners of Section 300 IPC so as to constitute murder
punishable under Section 302 IPC, or whether it
would amount to culpable homicide not amounting
to murder punishable under Section 304 IPC.
54. Learned counsel for the appellants submitted
that the medical evidence discloses a total of 63
injuries caused to the victims, of which 29 injuries
were inflicted upon the deceased-Bhaggu alone,
35


including five injuries on the skull/head region. It
was urged that the multiplicity and nature of the
injuries, with repetitive blows on the vital body part,
i.e., head, clearly demonstrate a concerted and brutal
assault, the cumulative effect of which unmistakably
brings the case within the ambit of murder. It was
further contended that the assault was neither
casual nor sudden, but deliberate. Emphasis was
laid on the circumstance that earlier on the same
day, at about 2:00 p.m., the deceased-Bhaggu had
intervened in an altercation involving the sons of
Vimal Rana, which furnished the immediate motive
for the subsequent attack. According to the
appellants, the occurrence was thus retaliatory and
premeditated, with blows of lathis being repeatedly
landed on the head of the deceased. Without a doubt,
the admitted facts of the case would not attract any
of the Exceptions to Section 300 IPC. No such
finding was, as a matter of fact, recorded by the
High Court .
55. As against this, learned counsel for the
accused-respondents submitted that the common
object of the assembly was merely to chastise the
deceased. The injuries were predominantly inflicted
36


on non-vital parts of the body and, therefore, the
requisite mens rea to attract Clause (3) of Section 300
IPC could not be attributed to the accused. Though
the deceased sustained multiple injuries, only one
injury, resulting in fracture of the parietal bone,
proved fatal, and the prosecution had failed to
establish which particular accused had inflicted the
said injury. It was further urged that the doctor Shri
N.K. Bajpai, who conducted the post-mortem
examination was not examined, and the post-mortem
opinion does not indicate that the death was the
cumulative effect of all the injuries. According to the
defence, the use of lathis and the placement of
injuries predominantly on non-vital parts negates the
existence of intention to cause death. Consequently,
according to the accused-respondents, the offence
would, at best, extend only to culpable homicide not
amounting to murder, punishable under Part II of
Section 304 IPC. On this reasoning, the accused-
respondents sought to sustain the view taken by the
High Court that the accused-respondents did not
have the intention to cause death in furtherance of
the common object.
37


56. Having considered the rival submissions
advanced by the parties, the pivotal question which
arises for determination is whether the accused-
respondents possessed the intention to cause the
death of Bhaggu @ Bhag Chand, or intended to inflict
such bodily injury as was sufficient in the ordinary
course of nature to cause death, thereby attracting
Clause (3) of Section 300 IPC, an issue on which the
High Court took a view adverse to the prosecution.
57. The Court is conscious of the fact that the
determination of intention, being a state of mind, is
seldom susceptible to a rigid or mechanical formula.
It must necessarily be gathered from the cumulative
effect of the circumstances proved on record,
including the nature of the weapon used, the part of
the body targeted, the manner of assault, the number
of injuries, and the circumstances surrounding the
occurrence. In this context, reference may profitably
be made to the decision of this Court in Pulicherla
13
Nagaraju v. State of A.P. , wherein the factors
relevant for discerning intention were elucidated. The
relevant extract is reproduced hereinbelow:-

13
(2006) 11 SCC 444.
38


“29. Therefore, the court should proceed to
decide the pivotal question of intention, with
care and caution, as that will decide whether
the case falls under Section 302 or 304 Part I or
304 Part II. Many petty or insignificant matters -
plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an
objectionable glance, may lead to altercations and
group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion
may be totally absent in such cases. There may be
no intention. There may be no premeditation. In
fact, there may not even be criminality . At the
other end of the spectrum, there may be cases
of murder where the accused attempts to avoid
the penalty for murder by attempting to put
forth a case that there was no intention to cause
death. It is for the courts to ensure that the
cases of murder punishable under Section 302,
are not converted into offences punishable
under Section 304 Part I/II, or cases of culpable
homicide not amounting to murder, are treated
as murder punishable under Section 302. The
intention to cause death can be gathered
generally from a combination of a few or several
of the following, among other, circumstances:
( i ) nature of the weapon used; ( ii ) whether the
weapon was carried by the accused or was
picked up from the spot; ( iii ) whether the blow
is aimed at a vital part of the body; ( iv ) the
amount of force employed in causing injury; ( v )
whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; ( vi )
whether the incident occurs by chance or
whether there was any premeditation; ( vii )
whether there was any prior enmity or whether
the deceased was a stranger; ( viii ) whether there
was any grave and sudden provocation, and if
so, the cause for such provocation; ( ix ) whether
it was in the heat of passion; ( x ) whether the
person inflicting the injury has taken undue
39


advantage or has acted in a cruel and unusual
manner; ( xi ) whether the accused dealt a single
blow or several blows. The above list of
circumstances is, of course, not exhaustive and
there may be several other special
circumstances with reference to individual
cases which may throw light on the question of
intention. Be that as it may.”
[Emphasis supplied]

58. Applying the principles laid down in the
aforesaid decision to the facts of the present case, we
are of the considered opinion that the High Court
erred in interfering with the conviction recorded
under Section 302 IPC by altering it to one under
Section 304 Part II IPC. The evidence on record,
particularly the consistent testimony of the injured
eye-witnesses, establishes that the vehicle in which
the deceased-Bhaggu, and the other injured
witnesses were travelling was waylaid after the
passage was deliberately obstructed by the accused-
respondents by placing tube-well pipes across the
road. The deceased-Bhaggu was thereafter subjected
to a concerted assault by the accused-respondents,
who were armed with lathis . There is nothing on
record to suggest that the weapons were picked up
casually at the spot; rather, the accused were lying in
40


wait, prepared to launch the assault on the
unsuspecting victims.
59. The sequence of events assumes greater
significance in view of the circumstance that earlier
on the same day, the deceased-Bhaggu had
intervened in an altercation involving one of the
accused-respondents with one Sharan Dubey
belonging to the Brahmin community, thereby
furnishing an immediate motive for retaliation. The
deliberate obstruction of the road by placing tube-
well pipes, the prior presence of the accused-
respondents in form of an unlawful assembly armed
with lathis , and the repeated blows inflicted upon the
deceased-Bhaggu, including multiple injuries on the
head region and so also to the other injured persons,
cumulatively demonstrate that the assault was
neither sudden nor an isolated act aimed at
chastisement, but was rather a concerted intentional
attack. It is also on record that the deceased belonged
to a Scheduled Caste community, whereas the
accused-respondents belonged to the Gujar
community. Significantly, in their statements
recorded under Section 313 CrPC, the accused-
respondents themselves adverted to the existence of
41


caste and political factions between the parties,
asserting that they had been falsely implicated on
account of such factionalism. Though the charge
under the SC/ST Act was not ultimately sustained,
the admitted background of inter se caste
factionalism provides contextual motive for the
occurrence and lends further support to the inference
that the assault was retaliatory rather than erupting
spontaneously or from a sudden quarrel. Equally,
there is no material on record to indicate that the
assault was the outcome of any grave and sudden
provocation so as to attract any of the Exceptions to
Section 300 IPC. These attendant circumstances,
when viewed cumulatively, assume considerable
importance in determining whether the proved facts
bring the case within the ambit of Section 300 IPC
while ruling out the exceptions.
60. Even though the weapons of offence were lathis ,
which in the abstract may not always be
characterised as a deadly weapon, their lethality
depends upon the manner of use, the part of the body
targeted, and the force employed. The present case is
not one of a solitary blow delivered in the heat of the
moment. The accused-respondents, acting in concert
42


and in furtherance of their common object, inflicted
as many as 63 injuries in total, of which 29 injuries
were sustained by the deceased-Bhaggu alone, as
reflected in the post-mortem report (Exh.P/8).
61.
A close scrutiny of the post-mortem report
(Exh.P/8) reveals multiple contusions and abrasions
over various parts of the body, but more significantly,
four bone-deep lacerated wounds over the left
parietal and temporal regions, along with associated
grievous injuries to the brain. Injury Nos. 24 to 27, to
be specific, were bone-deep wounds on the head, a
vital part of the body. The medical opinion attributes
the cause of death to coma resulting from ante-
mortem head injury. The situs, depth, and
multiplicity of the head injuries clearly establish that
multiple blows were directed at a vital region with
considerable force. The finding recorded in the
impugned judgment that only one scalp injury was
caused to deceased-Bhaggu is perverse and recorded
in ignorance of the medical evidence available on
record.
62. When repeated blows are inflicted on the
parietal and temporal regions with lathis , resulting in
bone-deep lacerations causing fractures and brain
43


damage and culminating in coma, it cannot be said
that the assailants lacked the intention to inflict such
bodily injury as was sufficient in the ordinary course
of nature to cause death. The nature, location, and
magnitude of the injuries leave little scope for treating
the death to be the result of a solitary blow.
63. Further, the absence of oral testimony of the
doctor who conducted the post-mortem does not
detract from the evidentiary value of the post-mortem
report (Exh.P/8), particularly when the accused-
respondents themselves have admitted the same.
The injuries noted in the post-mortem report
(Exh.P/8) are corroborated in material particulars by
the consistent ocular evidence. Further, there is
nothing to suggest that any supervening
circumstance, such as infection, gangrene, or other
factor, contributed to the fatal outcome. In these
circumstances, the only reasonable inference that
can be drawn is that the intention and common
object of the unlawful assembly formed by the
accused-respondents was to inflict such bodily
injuries to deceased-Bhaggu as were sufficient in the
ordinary course of nature to cause death. The case,
44


therefore, squarely falls within Clause (3) of Section
300 IPC.
64. As regards the submission advanced on behalf
of the accused-respondents that the doctor who
conducted the post-mortem examination was not
examined and that, consequently, the post-mortem
report (Exh.P/8) remained uncorroborated, thereby
weakening the prosecution's case. As we have noted
above, the medical jurist Dr. N.K. Bajpai was present
th
before the trial Court on 5 February, 2005.
However, the defence chose to admit the post-mortem
report, which was accordingly marked as Exh.P/8,
and consequently, the doctor was given up and not
examined. In such circumstances, the absence of
oral testimony of the doctor does not create any
material infirmity in the prosecution's case. In this
regard, we may gainfully refer to the judgment of this
14
Court in Akhtar v. State of Uttaranchal , wherein
it was held as under:-
“21. It has been argued that non-examination of
the medical officers concerned is fatal for the
prosecution. However, there is no denial of the fact
that the defence admitted the genuineness of the
injury reports and the post-mortem examination
reports before the trial court. So the genuineness

14
(2009) 13 SCC 722.
45


and authenticity of the documents stands proved
and shall be treated as valid evidence under
Section 294 CrPC. It is settled position of law that
if the genuineness of any document filed by a party
is not disputed by the opposite party it can be read
as substantive evidence under sub-section (3) of
Section 294 CrPC. Accordingly, the post-mortem
report, if its genuineness is not disputed by the
opposite party, the said post-mortem report can be
read as substantive evidence to prove the
correctness of its contents without the doctor
concerned being examined.”

65. The finding regarding the existence of an
unlawful assembly has been consistently recorded by
both the trial Court and the High Court, and the
same is not in dispute. The High Court itself observed
that there was no probability of innocent bystanders
being falsely implicated, as the mini-bus in which the
deceased-Bhaggu along with other injured, was
travelling, was stopped by placing pipes across the
road, and the assailants emerged from the bushes.
The injured witnesses, Guddu @ Arvind, Gudda @
Sandeep (PW-5), Deen Dayal (PW-9), Kulhad Baba @
Shahfaz Khan (PW-2), Dabbu @ Purshottam Sahu
(PW-4) and Ashok Kori (PW-3), collectively suffered
numerous injuries, bringing the total number of
injuries in the occurrence to 63. All injuries were
caused by hard and blunt objects. The concerted
46


nature of the attack and the prior preparation by
obstructing the road, unmistakably establish that
the accused-respondents had formed an unlawful
assembly and acted in prosecution of the common
object of such assembly, i.e., to assault the victims.
66. Once it is established that an unlawful
assembly existed and the accused-respondents
intended to commit murder of deceased-Bhaggu in
furtherance of the common object of such assembly,
the individual attribution of the fatal injury fades into
insignificance. It is trite law that Section 149 IPC
embodies the principle of vicarious liability and
renders every member of an unlawful assembly guilty
of the offence committed in prosecution of the
common object.
67. The object of the provision is to ensure that
criminal liability cannot be evaded on the plea that
specific role of the particular accused could not be
discerned from the evidence. Conduct of each person
forming the unlawful assembly, coupled with
participation in prosecution of the common object, is
sufficient to fasten vicarious liability on every
member of the assembly for the offence committed by
any member of that assembly. In such
47


circumstances, it is immaterial as to which accused
delivered the fatal injury, once the offence is shown
to have been committed in furtherance of the
common object of the unlawful assembly. For this
purpose, reference may be made to the decision of
15
this Court in Nitya Nand v. State of U.P. , wherein
the scope and ambit of Section 149 IPC was
elaborated in the following terms:-
“43. This brings us to the pivotal section which
is Section 149 IPC. Section 149 IPC says that
every member of an unlawful assembly shall be
guilty of the offence committed in prosecution
of the common object. Section 149 IPC is quite
categorical. It says 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 committing of that
offence, is a member of the said assembly; is
guilty of that offence. Thus, if it is a case of
murder under Section 302 IPC, each member of
the unlawful assembly would be guilty of
committing the offence under Section 302IPC.

44. In Krishnappa v. State of Karnataka ,
(2012) 11 SCC 237 : (2013) 1 SCC (Cri) 621] , this
Court while examining Section 149IPC held as
follows: (SCC p. 243, paras 20-21)

“ 20 . It is now well-settled law that the
provisions of Section 149IPC will be
attracted whenever any offence

15
(2024) 9 SCC 314.
48


committed by any member of an unlawful
assembly in prosecution of the common
object of that assembly, or when the
members of that assembly knew that
offence is likely to be committed in
prosecution of that object, so that every
person, who, at the time of committing of
that offence is a member, will be also
vicariously held liable and guilty of that
offence. Section 149 IPC creates 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. This principle ropes in
every member of the assembly to be guilty
of an offence where that offence is
committed by any member of that
assembly in prosecution of common
object of that assembly, or such members
or assembly knew that offence is likely to
be committed in prosecution of that
object.

21 . The factum of causing injury or not
causing injury would not be relevant,
where the accused is sought to be roped
in with the aid of Section 149 IPC. The
relevant question to be examined by the
court is whether the accused was a
member of an unlawful assembly and not
whether he actually took active part in
the crime or not.”

45. Thus, this Court in Krishnappa
case [ Krishnappa v. State of Karnataka ,
(2012) 11 SCC 237 : (2013) 1 SCC (Cri) 621] held
that Section 149IPC creates a constructive or
vicarious liability of the members of the
unlawful assembly for the unlawful acts
committed pursuant to the common object by
49


any other member of that assembly. By
application of this principle, every member of
an unlawful assembly is roped in to be held
guilty of the offence committed by any member
of that assembly in prosecution of the common
object of that assembly. The factum of causing
injury or not causing injury would not be
relevant when an accused is roped in with the
aid of Section 149 IPC. The question which is
relevant and which is required to be answered
by the court is whether the accused was a
member of an unlawful assembly and not
whether he actually took part in the crime or
not.

46. As a matter of fact, this Court in Vinubhai
Ranchhodbhai Patel v. Rajivbhai Dudabhai
Patel [ Vinubhai Ranchhodbhai Patel v. Rajivbhai
Dudabhai Patel , (2018) 7 SCC 743 : (2018) 3 SCC
(Cri) 340] has reiterated the position that Section
149IPC does not create a separate offence but only
declares vicarious liability of all members of the
unlawful assembly for acts done in common object.
This Court has held: (SCC pp. 752-53 & 756, paras
20, 22 & 34)

“ 20 . In cases where a large number of
accused constituting an “unlawful
assembly” are alleged to have attacked
and killed one or more persons, it is not
necessary that each of the accused
should inflict fatal injuries or any injury
at all. Invocation of Section 149 is
essential in such cases for punishing the
members of such unlawful assemblies on
the ground of vicarious liability even
though they are not accused of having
inflicted fatal injuries in appropriate
cases if the evidence on record justifies.
The mere presence of an accused in such
an “unlawful assembly” is sufficient to
50


render him vicariously liable under
Section 149IPC for causing the death of
the victim of the attack provided that the
accused are told that they have to face a
charge rendering them vicariously liable
under Section 149IPC for the offence
punishable under Section 302IPC.
Failure to appropriately invoke and apply
Section 149 enables large number of
offenders to get away with the crime.
*
. When a large number of people gather
22
together (assemble) and commit an
offence, it is possible that only some of
the members of the assembly commit the
crucial act which renders the transaction
an offence and the remaining members
do not take part in that “crucial act” - for
example in a case of murder, the
infliction of the fatal injury. It is in those
situations, the legislature thought it fit as
a matter of legislative policy to press into
service the concept of vicarious liability
for the crime. [ Ramu Gope v. State of
Bihar , 1968 SCC OnLine SC 74, para 5 :
AIR 1969 SC 689, p. 692, para 5:“ 5 . …
When a concerted attack is made on the
victim by a large number of persons it is
often difficult to determine the actual part
played by each offender. But on that
account for an offence committed by a
member of the unlawful assembly in the
prosecution of the common object or for
an offence which was known to be likely
to be committed in prosecution of the
common object, persons proved to be
members cannot escape the
consequences arising from the doing of
that act which amounts to an offence.”]
Section 149IPC is one such provision. It
is a provision conceived in the larger
51


public interest to maintain the
tranquillity of the society and prevent
wrongdoers (who actively collaborate or
assist the commission of offences)
claiming impunity on the ground that
their activity as members of the unlawful
assembly is limited.
*
34 . For mulcting liability on the members
of an unlawful assembly under Section
149, it is not necessary that every
member of the unlawful assembly should
commit the offence in prosecution of the
common object of the assembly. Mere
knowledge of the likelihood of
commission of such an offence by the
members of the assembly is sufficient.
For example, if five or more members
carrying AK 47 rifles collectively attack a
victim and cause his death by gunshot
injuries, the fact that one or two of the
members of the assembly did not in fact
fire their weapons does not mean that
they did not have the knowledge of the
fact that the offence of murder is likely to
be committed.”
[Emphasis supplied]

68. The reasoning assigned by the High Court for
toning down the offence from that punishable under
Section 302 IPC read with Section 149 IPC to Section
304 Part II IPC read with Section 149 IPC is extracted
below: -
“30. We have carefully considered the evidence
adduced by the prosecution witnesses and the
defence witnesses. It is true that the deceased
suffered number of injuries and prosecution
52


witnesses also suffered injuries; some of which
were grievous in nature also, but it has to be noted
that it was only one injury on the head of deceased,
which resulted into his death. The death of
deceased was not the result of the cumulative effect
of all the injuries. Therefore, in our opinion, the
common object of the unlawful assembly could not
be held to be of committing murder of the deceased.
It must be held to be the individual act of one
assailant, which resulted into death of deceased.
Since there is nothing on record to indicate that
who caused the fatal injury to deceased, it would
be unsafe to convict all the appellants under
Section 302/149 of the Indian Penal Code, but
since all the appellants were armed with Lathies,
they were liable to be convicted under Section 304-
II of the Indian Penal Code.

31. For the foregoing reasons, we acquit appellants
for the offence punishable under Section 302 read
with Section 149 of the Indian Penal Code and
instead convict them for the offence punishable
under Section 304-II read with Section 149 of the
Indian Penal Code. The conviction and sentence of
the appellants under Sections 148, 323/149 and
325/149 of the Indian Penal Code are affirmed. For
the offence under Section 304-II read with Section
149 of the Indian Penal Code, the appellants are
sentenced to undergo rigorous imprisonment for a
period of six years with a fine of Rs.5000/- each
and in default, they shall suffer sentence of one
year rigorous imprisonment.”

69. A bare perusal of the aforesaid findings makes
it evident that the reasoning of the High Court is self-
contradictory. While affirming the invocation of
Section 149 IPC, it went on to record that the
prosecution could not prove the identity of the
53


assailant who caused the fatal injury to the deceased-
Bhaggu. This approach runs contrary to the very
principle of vicarious liability embodied in Section
149 IPC. The conclusion so drawn by the High Court
is perverse without any justifiable foundation, and
hence, the same cannot be sustained.
70. As an upshot of the above discussion, we are of
the considered opinion that the High Court
committed an error apparent in facts and in law in
altering the conviction of the accused-respondents
from Section 302 read with 149 IPC to one under
Section 304 Part II read with 149 IPC. The impugned
judgment to that extent suffers from perversity and
illegality and hence cannot be sustained.
71. Accordingly, the appeals are allowed. The
th
judgment and order dated 19 July, 2010, passed by
the High Court is set aside, and the conviction of the
accused-respondents and sentence of life
imprisonment as awarded by the trial Court are
restored.
72. The accused-respondents shall surrender
within a period of eight weeks, failing which the
concerned trial Court shall take necessary steps to
secure their custody and commit them to prison for
54


serving the remaining sentence in terms of the
judgment of the trial Court.
73. Pending application(s), if any, shall stand
disposed of.

….……………………J.
(SANJAY KAROL)


...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
FEBRUARY 23, 2026.







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