NETHALA POTHURAJU AND ORS.· versus STATE OF ANDHRA PRADESH

Citation: [1991] SUPP. 1 S.C.R. 4 · Decided: 11-09-1991 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Disposed off
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Judgment (excerpt)

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NETHALA POTHURAJU AND ORS.· 
v. 
STATE OF ANDHRA PRADESH 
SEPTEMBER 11, 1991 
[KULDIP SINGH AND M.M. PUNCHHI, JJ.) 
Indian Penal Code, 1860: Sections 34, 148, 149 and 3Q2. Unlawful 
assembly-Seven accused-Acquittal of four-Remaining three cannot fonn 
unlawful Assembly--Section 149 held inapplicable-Evidence disclosing 
commission of offence in furtherance of the common intention-Non-ap-
plicability of Section 149 held no bar for conviction under section 302 read 
with Section 34. 
Appellants (Al to A3) were tried for the offences under Sections 147, 
148, 323 and 309 read with section 149 of the Indian Penal Code. The Trial 
Court acquitted A-7 of all the charges but convicted A-1 to A-6 under 
sections 148 and 302 read with section 149 and sentenced them to 
imprisonment for life. On appeal tht High Court acquitted A-4 to A-6 but 
confirmed the conviction and sentence of the appellants. 
In appeal to this Court it was contended on behalf of the appellants 
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that in view of the acquittal of four accused, the appellant's conviction 
under section 148 and on applying section 149 cannot be sustained. 1be 
appellants being three in number could not have formed unlawful 
assembly under section 141 IPC. 
Disposing the appeal, this Court, 
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HELD: 1. The High Court erred in confirming the conviction and 
sentence of the appellants under Section 148 and on applying 149 I.P.C. on 
the ground that they formed an unlawful assembly alongwith some 
unidentified persons. The prosecution case was that the seven named 
accused formed the unlawful assembly and not that apart' from the seven 
G accused persons there were some other unidentified persons who were 
involved in the crime. Four accused having been acquitted there was no 
question of the remaining three appellants forming an unlawful assembly 
within the meaning of section 141 of the Indian Penal Code. Accordingly 
the appellants cannot be convicted under section 148 and an applying 149 
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I.P.C. Their conviction under the said sections is set aside. [6F-G] 
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POIBURAJU v. SfATE [ KULDIP SINGH, J.] 
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2. Both sections 149 and 34 I.P.C. deal with a combination of persons A 
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who become liable to be punished as sharers in the commission of offences. 
The non-applicability of Section 149 I.P.C. is, therefore, no bar in 
convicting the accused under Section 302 read with section 34 I.P.C. if the 
evidence discloses commission of offence in furtherance of the common 
intention cf them all. [6H, 7-A] 
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2.1 Keeping in view the manner of attack and the number and nature 
of injuries, there is no hesitation in holding that the appellants acted in 
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furtherance of their common intention, made the murderous attack on the 
deceased and caused his instantaneous death. Therefore, they are held 
guilty under Section 302 read with Section 34 I.P.C. and are sentenced to c 
life imprisonment. [7G-HJ 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
538of1983 . 
. From the Judgment and Order dated 6.4.1982 of the Andhra D 
Pradesh High Court in Crl. A. No. 469of1981. 
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G. Narasimhulu for the Appellants. 
T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for 
the Respondeot. 
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The Judgment of the Court was delivered by 
KULDIP SINGH, J, Nethala Pothuraju, Nethala Dhananjaya, 
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Nethala Remudu and four others (hereinafter referred to as 'A-1 to A-7') 
were tried for the offences under Sections 147, 148, 323, 379 and 302 read F 
with Section 149 I.P.C. on the allegations that they caused the death of 
Madda Lakshamandas of village Ramaraogudem on November 1, 1980 
near the Tobacco garden of A-1. The Trial Court acquitted A-7 of all the 
charges A-1.to A-6 were, however, found guilty for the offences punishable 
under Sections 148 and 302 read with section 149 I.P.C. They were sen-
t~nced to imprisonment for life. On appeal, the High Court confirmed the G 
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conviction and sentence of A-1 to A-3. The conviction and sentence of A-4 
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·to A-6 was set aside by the High Court and-they were acquitted on the 
following reasoning: 
" ............. We feel that it would be safe to accept the evidence of 
P.Ws. 1 and 2 to the extent it is corroborated by the evidence H 
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SUPREME COURT REPORTS 
(1991) SUPP. 1 S. C.R. 
of P.W.3 in so far as the presence and participation of the 
a~used in the attack on the deceased is concerned. Accepting· 
the evidence of P.W.3 we hold that the identity of A-1 to A-3 in 
the unlawful assembly consisti
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