K. NAGAMALLESWARA RAO AND ORS. versus STATE OF ANDHRA PRADESH

Citation: [1991] 1 S.C.R. 875 · Decided: 14-03-1991 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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K. NAGAMALLESWARA RAO AND ORS. 
v. 
STATE OF ANDHRA PRADESH 
MARCH 14, 1991 
[A. M. AHMADI, V. RAMASWAMI AND 
M. F ATHIMA BEEVI, JJ.] 
,>- -
Criminal Law: Indian Penal Code, 1860-Sections 302 and 34-
Deceased attacked by several persons-No specific overt act attributed 
to the accused and instead bald statements that 15 persons caused 
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injuries to deceased made in the F.I.R.· and Dying Declaration which 
---- was later treated as statement under section 157 Cr. P. C.-Conviction 
of the accused under section 302 and section 302 read with section 34 
J.P. C. cannot be sustained. 
Sections 302 and 149-When 15 persons were specifically charged 
of forming unlawful assembly and committing murder in prosecution of 
the common object of the assembly but 11 of them were acquitted, the 
remaining 4 cannot be convicted under section 302/ 149 as being 
members of the unlawful assembly. 
The 4 appellants alongwith 11 others were tried for murder and for 
A 
B 
c 
D 
).._ causing injuries. The learned sessions judge while acquitting all others 
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of all the charges, convicted A-1, A-2, A-5 and A-11 on different 
counts. The sentences awarded to them under various charges includ-
ing the sentence of life imprisonment under section 302 IPC were 
ordered to run concurrently. The convicted accused preferred appeal to 
the High Court against their conviction and sentences and the State 
appealed against the acquittal of the rest of the accused. The High 
F 
Court altered the conviction of A-1 and A-2 under section 302 l.P.C. 
~\ /' and 302 read with section 34 respectively into one under section 302 
""'· 
·read with section 149 I.P .C. and confirmed the sentence for imprison-
ment for life. Except for this modification the convictions and sen-
tences in respect of all the four accused were confirmed. The state 
appeal against acquittal of all other accused was dismissed. 
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In this appeal preferred by the four convicted accused namely, 
~-1, A-2, A-5 and A-11 their counsel confmed his arguments against 
lheir convictions aiad sente.ates under section 302 read with section 149 
1.1.C. only as the ap,;ellants had either already served or had almost 
finished serving their sentences awarded to them under other charges. H 
875 
876 
SUPREME COURT REPORTS 
[1991] 1 S.C.R. 
The argument was that in the absence of a specific f"mdin~_ to_ t~e effect.....;._ 
A that apart from the 4 appellants the prosecution has proved the involve-
ment of other persons, section _149 I.P.C. cannot be invoked for con-
viCting them under section 302 I.P.C. Confirming the convictions and 
sentences of the appellants under other charges but allowing their appeal 
against their conviction and sentence under Section 302 I.P.C. read 
B 
with section 1491.P.C. this Court, 
HELD: Since the accused who are convicted were only four bi -~ 
number and the prosecution has not proved the involvement of other 
persons and the courts below_ have acquitted the a<:her accused of all 
the offences, section 149 cannot be invoked for convicting the four..-.<___ 
C 
appellants herein. The learned judges were not correct in stating that 
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- Al, A2, AS and All can be held to be the members of an unlawful 
D 
E 
F 
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· assembly along with some other unidentified persons on the facts and 
circumstances of this case. The charge was not that accused 1,2,5, and y 
11 "and others" or "and other unidentified persons" formed into 
aQ unlawful assembly but it is th~! "you accused l_to 15" formed into 
an unlawful assembly. It is not the prosecution case that apart from the 
said 15 persons there were other persons who were involved in the 
crime. When the 11 other accused were acquitted it means that their 
involvement in the offence had not been proved. It would not also be 
permissible to assume or conclude that others named or unnamed acted 1, 
_ conjointly with the charged a".cused in the case unless the charge itself -
specifically said so and there was evidence to conclude that some others 
also were involved in the commission of the offence conjointly with the 
charged accused in furtherance of a common object. [882A-D f 
Amar Singh v. State of Punjab, [1987] 1 SCC 679 and Maina 
Singh v. Sta,te of Punjab, [1976] 3 SCR 651, followed. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal--;.......,,,: 
No. 680of1987. 
From the Ju~gment and Order datc~d 16.8J984 of the Andhra 
Pradesh High Court in Crl. A. No. 604 of 1982. 
N. Santosh Hegde, A.D.N. Rao and A. Subba Rao for

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