Full Judgment Text
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CASE NO.:
Appeal (crl.) 1268 of 1997
PETITIONER:
Rajendran & Anr.
RESPONDENT:
State of Tamil Nadu
DATE OF JUDGMENT: 13/04/2004
BENCH:
B.P. Singh & S.B. Sinha.
JUDGMENT:
J U D G M E N T
B.P.Singh, J.
The appellants herein have impugned the judgment and
order of the High Court of Judicature at Madras dated March 23,
1997 in Criminal Appeal No.177 of 1988 whereby their conviction
under Section 302 read with Section 149 of the IPC and sentence of
life imprisonment, as well as their conviction under Section 147 and
sentence of six months rigorous imprisonment has been affirmed by
the High Court. We may observe that apart from these two
appellants, two other persons who were convicted by the same
judgment and order had also preferred a Special Leave Petition
before this Court alongwith the appellants herein, but the Special
Leave Petition in so far as it related to them, was rejected by this
Court by order dated 12.12.1997.
In all eight persons were put up for trial before the
Second Additional Sessions Judge, Madras, charged variously of
offences under Sections 147, 148, 302 and 302/149 IPC. The
appellants herein were A-1 and A-6 before the trial court. The
learned Additional Sessions Judge by his judgment and order dated
25th March, 1988 in Sessions Case No. 142/87 found A-2 guilty of
the offence under Section 302 IPC and sentenced him to
imprisonment for life. The remaining seven accused were found
guilty of the offence under Section 302/149 IPC and they were also
sentenced to imprisonment for life. Further, the appellants herein as
well as A-3, A-4 and A-7 were found guilty of the offence under
Section 147 IPC and sentenced to undergo six months rigorous
imprisonment. A-2, A-5 and A-8 were further sentenced to rigorous
imprisonment for one year under Section 148 IPC.
Aggrieved by the judgment and order of the trial court,
three appeals were preferred before the High Court of Judicature at
Madras being Criminal Appeal Nos. 177-179 of 1988. The appellants
herein were the appellants in Criminal Appeal No. 177 of 1988
alongwith two others. It appears that during the pendency of the
appeal in the High Court, A-2 died. Therefore, the appeal as against
him abated. The High Court by a common judgment of March 25,
1997 allowed the appeals preferred by A-3, A-4 and A-7. However, it
confirmed the conviction and sentence of the other accused including
the appellants herein. A Special Leave Petition was preferred by the
appellants herein alongwith A-5 and A-8, but as earlier noticed, the
Special Leave Petition preferred on behalf of A-5 and A-8 was
rejected by this Court. In this appeal, therefore, we are only
concerned with the conviction of the two appellants herein.
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The case of the prosecution was that on 21.6.1987 at
about 9.00 P.M., all the accused having formed themselves into an
unlawful assembly with the common object of committing the murder
of one Babu surrounded him and assaulted him as a result of which
he succumbed to his injuries. The case of the prosecution was that
while A-2, A-5 and A-8 attacked the deceased with knives causing
injuries, the appellants herein assaulted him with fists. The three
remaining accused who have since been acquitted, were alleged to
have dragged the deceased to a considerable distance, though there
was no allegation that they took part in the assault. So far as the
acquitted accused are concerned the High Court recorded a finding in
their favour since the evidence disclosed that they had come to the
place of occurrence after the assault on the deceased was over and
therefore were not members of the unlawful assembly, sharing a
common unlawful object. In any event, the High Court gave to them
the benefit of doubt as there was no evidence to prove that the
deceased had been dragged by them as alleged. The evidence on
record disclosed the complicity of the remaining accused, including
the appellants herein. They were, therefore, convicted and
sentenced as earlier noticed.
Learned counsel for the appellants submitted that having
regard to the role played by the appellants herein, they cannot be
found guilty of the offence under Section 302 read with Section 149
IPC. The submission is based on the factual foundation that the
appellants herein did not assault the deceased with any weapon and
merely assaulted him with fists. They, therefore, did not share the
common object of the unlawful assembly to commit the murder of
the deceased.
The submission urged on behalf of the appellants must
be rejected. The concurrent finding of fact of the courts below is
that the appellants alongwith three others, namely, A-2 (since
deceased), A-5 and A-8 formed themselves into an unlawful
assembly, the common object of which was to commit the murder of
Babu deceased. Once it is held that they were members of the
unlawful assembly and in pursuance of the common object of such
an assembly, Babu was murdered, the appellants cannot escape their
liability because every member of the unlawful assembly is guilty of
the offence committed by any member of such unlawful assembly, if
in prosecution of the common object of that assembly an offence is
committed. The appellants cannot argue that they were not
members of the unlawful assembly because their participation in the
assault has been proved beyond reasonable doubt. Once their
participation is established, they cannot escape their liability by
pleading that they did not cause any serious injury but merely
assaulted the deceased with fists. The mere fact that they were
members of the unlawful assembly at the time when the offence was
committed, makes them guilty of the offence committed by any
member of the unlawful assembly in prosecution of the common
object of that assembly. Section 149 of the IPC enunciates a
principle of vicarious liability and, therefore, every member of the
unlawful assembly is guilty of the offence committed by any member
of such assembly. Learned Counsel for the appellants relied upon
the decision of this Court in Rajendra Shantaram Todankar v. State
of Maharashtra & Ors. 2003(2) JT SC96 and submitted that the
principles enunciated therein may be applied to the facts of this case.
We are afraid the aforesaid decision renders no help to the appellants
because in that case some of the appellants were acquitted on a
finding that they did not share any common object with those who
indulged in an assault on another person, assault on whom was not
pre-planned, nor shared as common object by them, and the
evidence did not disclose that an unlawful assembly came into
existence at the spur of the moment. This is not a case of that
nature because in the instant case, the very object of the unlawful
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assembly was to commit the murder of Babu and, in fact, Babu was
murdered in pursuance of the common object of the unlawful
assembly. The participation of the appellants not being in doubt, their
conviction with the aid of Section 149 cannot be assailed.
We, therefore, find no merit in this appeal and the same
is accordingly dismissed.
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