LexSTATE OF A.P. ETC. versus THAKKIDIRAM REDDY AND ORS. ETC.
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A B STA TE OF A.P. ETC. v. THAKKIDIRAM REDDY AND ORS. ETC. AUGUST 11, 1998 [M.K. MUKHERJEE AND D.P. WADHWA, JJ.] Indian penal code, 1860-Sections 148 and 149-Common object- Determination of -Not essential to establish individual's overt act. C Code of Criminal Procedure, 1973-Sections 464 and 465-Misjoinder of Charges-Effect of Failure of justice-Meaning of. The prosecution case is that there was long standing enmity between the party of the accused and the party of the deceased. On August I 0/11, 1990, at or about I a.m., 21 accused persons armed with crow-bar, sticks and D other deadly weapons broke open the door and entered the house of the deceased. Al assaulted the deceased with a plough rod (negatipale), A2 with a crow-bar and A3 and AS with sticks. The accused also assaulted the wife E (PW-2), the brother (PW-3) parents and cousin in the deceased when they tried to intervene and save the deceased. After the incident, the injured persons were taken to a hospital. The diseased, however, succumbed to his injuries. The incident was reported to the police at 6 a.m. Post-mortem of the body of the deceased was carried out F by PW-12 who found IO injuries on the body of the deceased which in his opinion could be caused by a hard substance such as stick or a crow-bar PW- 14 who examined injuries on the body of PW-I, 2 and 3 also opined that the injuries could be caused by stick or crow-bar. During the cause of investigation blood stained earth, two crow-bars and some broken sticks were recovered from the house of the deceased. G During the trial, the prosecution examined 15 witnesses, out of which PW-I, 2 and 3 (relatives of the deceased) and PW-4 and 5 (neighbours of the deceased) fingured as eye witnesses. The Sessions Court acquitted ten of the accused. Al to A3 were H convicted under Sections 148, 302/149 and Section 457 l.P.C. A4 to All 1088 ST A TE OF A.P. ETC. v. THAKKJDIRAM REDDY 1089 were convicted under Sections 148, 302 read with 149, and Section 447 A I.P.C. A3 and A4 were also convicted under Section 324 I.P.C. On appeal to the High Court,the High Court set aside the conviction of A2 to All under Sections 148 and 302/149 I.P.C. and maintained all other convictions. The High Court held that it was unsafe to convict A2 to All under Sections 148 and 1491.P.C. without there being any specific overt act B attributed to them. The High Court further held that the occular evidence regarding the overt acts committed by A2 to AS and A9 is not supported by medical evidence. The State filed a Special Leave Petition against the acquittal of A2 to C All from charges under Section 148 and 302/149 I.P.C Leave was granted by this Court limited to the question of acquittal of A2 to AS. Another Special Leave Petition was filed by Al before this Court. Before this Court, the counsel for the accused inter-alia contended that charges against the accused were not framed in accordance with Section D 211 of Cr.P.C. though charge was farmed under Section 148 I.P.C. for unlawful assembly, it was not mentioned as to what was the common object of the said unlawful assembly. Further a charge under Section 302 1.P.C. simplicitor was framed against the accused whereas they were convicted under Section 302 read with 149 I.P.C. Allowing the appeal of the State and dismissing that of the accused, this Court HELD : 1. It cannot be gainsaid that since the incident took place in E the house of the deceased at the dead of night, PWs. I, 2 and 3 who were members of his household, were the most natural and probable witnesses. F Further the injuries sustained by them in that night leaves no room for doubt that they were present when the incident took place. As regards P.Ws. 4 and 5, their claim that they saw the incident cannot also be doubted for they were the next door neighbours of the deceased. The evidence of the above five witnesses, so far as it relates to the manner in which the incident took place G is consistent and cogent and does not suffer from any infirmity. (1095-F-H) 2.1. To ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and H 1090 SUPREME COURT REPORTS [1998] 3 S.C.R. A circumstances of a given case that he shared the common ob
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