JOSEPH versus STATE, REP. BY INSPECTOR OF POLICE .

Citation: [2017] 12 S.C.R. 452 · Decided: 14-12-2017 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Disposed off
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Judgment (excerpt)

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[2017) 12 S.C.R. 452 
JOSEPH 
v. 
STATE, REP. BY INSPECTOR OF POLICE . 
(Criminal Appeal No.413 of2012) 
DECEMBER 14, 2017 
[RANJAN GOGOI AND R. BANUMATHI, JJ.] 
Penal Code, 1860 - s.302 r/w. s.149 - Conviction under, of 
appellants - Propriety - Two factions assembled to attend funeral 
of PW-2 's cousin - Accused party (consisting of JJ members). 
attacked the Complainant's party - Deceased (son of PW-2) 
succumbed to injuries - Trial court convicted all the accused u/ 
s.302 !PC with the aid of constructive liability u/s. 149 - Appeal 
before High Court was dismissed - On appeal, held: First part of 
. s.149 states about the commission of an offence in prosecution of 
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the common object of the assembly whereas the second part takes 
within its fold knowledge of likelihood of the commission of that 
offence in prosecution of the common object - In the instant case, 
there was no common object among the accused .as only A-ll had 
enmity with PW-2s family - It was on the exhortation of A-ll that 
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all ·the accused individually reacted - Prosecution failed to prove 
that all the accused persons had any common object to commit the 
murder of the deceased which activated all of them to join in 
furtherance of the common object, so as to invoke the first part of 
s.149 - Conviction of A-3 uls. 302 r!w. s.149 is modified as 
conviction u/s. 302 r/w. s.34 - Conviction of A-4 to A-IO u/s. 302 rl 
w s.149 cannot be sustained - Conviction of A-11 u/s.302 r/w. s. 149 
is modified as conviction u/s.302 rlw. s.109. 
Penal Code, 1860 - s.149 - Vicarious liability under - When 
can be invoked - Discussed. 
Arms Act, 1959 - ss.27(2) and (3) - Plea of A3 that he cannot 
G be convicted u/s.302 1PC as he and A2 were acquitted u/ss.27(2) 
and (3) - Held: Not tenable - Sole reason for acquittal of A-3 and 
A-2 U/ss.27(2), (3) was non-obtaining of prior sanction from District 
Magistrate for prosecution under the Arms Act-' Thus, A-3s and 
A-2's acquittal ulss.27(2), (3) of the Arms Act is of no avail to A-3 -
H Penal code, 1860 - s.302. 
452 
JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE 
453 
Constitution of India - Art. 136 - Power of Supreme Court -
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Held: Supreme court does not, by special leave, convert itself into 
an appellate court to appreciate evidence for third time, unless some 
serious infirmity or perversity is shown. 
Disposing of the appeals, the Court 
HELD: 1.1 For invoking the vicarious liability under Section B 
149 IPC, it is important to find out if the offence was committed 
to accomplish the common object of the assembly or was the one 
which the member'S knew to be likely to be committed. Once the 
court finds that the ingredients of Section 149 IPC are fulfilled, 
every person who at the time of committing that offence was a 
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member of the assembly has to be held guilty of that offence. 
After such a finding, it would not be open to the court to see as to 
who actually did the offensive act nor would it be open to the 
court to require the prosecution to prove which of the members 
did which of the above two ingredients. Before recording the 
conviction under Section 149 IPC, the essential ingredients of D 
Section 141 IPC must be established. Whether the members of 
the unlawful assembly really had the common object to cause the 
murder of the deceased has to be decided in the facts and 
circumstances of each case, nature of weapons used by such 
members, the manner and sequence of attack made by those 
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members on the deceased and the circumstances under which 
the occurrence took place. It is an inference to be deduced from 
the facts and circumstances of each case. [Paras 9, 12] [459-G· 
H; 460-A-B; 462-B-C] 
1.2 In the present case, there was no common object among 
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the accused as only All had enmity with PW-2's family. There 
was no evidence to prove that the accused Nos.l to 11 had any 
common object to commit the murder of the deceased which 
activated all of them to join in furtherance of the common object. 
[Para 14] [462-F; 463-B] 
2.1 First part of Section 149 IPC states about the 
commission of an offence in prosecution of the common object of 
the assembly whereas the second part takes within its fold 
knowledge of likelihood of the commission. of that offence in 
prosecution of the common object. [Paras 15] [463-C] . 
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454 
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SUPREME COURT REPORTS 
[2017] 12 S.C.R. 
2.2 In the facts and circumstances of the case, the 
prosecution has not proved the existenc
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