JOSEPH v. STATE

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 C 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 E 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 F 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] . G H • 454 A B c SUPREME COURT REPORTS [2017] 12 S.C.R.

2.2 In the facts and circumstances of the case, the prosecution has not proved the existence of the common object amongst the accused and that all of them acted in furtherance of the common object to invoke the first part of Section 149 IPC. Accused Nos. 4 to 10 may not have had the knowledge that Al, A2 and A3 were armed with bombs and that the murder of the deceased was likely to be committed. On the exhortation of All, the accused seem to have individually reacted. There is no definite finding of the High Court that the common object of the assembly was to commit the murder or that the accused persons had knowledge that the offence of murder was likely to be committed and hence, the conviction of the accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC cannot be sustained. Accused Nos. 4 to 10 have already undergone the sentence for more than six years, they need not surrender. Their bail bonds stand discharged [Paras 15, 16 and 24] [463-C, E-F; D 465-H; 466-A]

#3. 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, this Court normally refrains from reappreciating the matter on appeal by special leave. [Para 17] [463-G-H] · Ramaniklal Gokaldas and Others v. State of Gujarat {1976) 1 SCC 6 ; Ramanbhai Naranbhai Patel and others 11. State of Gujarat (2000) 1 SCC 358 : [1999] 5 Suppl. SCR 41 - relied on. E F

#4. An attempt was made by A3 that he cannot be convicted under Section 302 IPC as he along with A2 was acquitted under Section 27(2) and Section 27(3) of the Arms Act, 1959. The sole reason for acquittal under Section 27(2) and Section 27(3) of the Arms Act was non-obtaining of prior sanction from District Magistrate to prosecute the accused under the Arms Act. Hence, G his and A2's acquittal under Section 27(2) and Section 27(3) of the Arms Act is of no avail to him. Convi~tion of A3 under Section 302 IPC read with Section 149 IPC is modified as Section 302 IPC read with Section 34 IPC and the sentence oflife imprisonment awarded is confirmed. A3 is are directed to surrender to serve the remaining sentence. [Paras 18, 23] [464-B-C; 465-F-G] H JOSEPH v. STATE, REP. BY INSPECTOR OF POLICE 455 S. The words uttered by All was the starting point for all A the troubles and all the accused acted only on such instigation of All. Though no overt act is attributed to All, the words uttered by him " ... hack, throw bomb and kill .•. " clearly show that only on his exhortation, other accused acted and attacked the complainant party. All was convicted under Section 302 IPC read with Section B 149 IPC even though he was charged under Section 302 IPC read with Section 109 IPC (fourth charge). Though the conviction of All under Section 302 IPC read with Section 149 IPC cannot be sustained, the same is modified as conviction under Section 302 IPC read with Section 109 IPC and the sentence of life imprisonment awarded is confirmed. All is directed to surrender C to serve the remaining sentence. [Paras 19, 23] (464-F-G; 46S- F]

#6. On the exhortation of All, Al hurled the bomb which hit the forehead of deceased. A2 hurled the bomb which hit the right ankle of one 'R'. Bomb hurled by A3 fell on the floor and exploded. D The bomb hurled by A2 and A3, though, had not hit the deceased, the fact remains that they carried the bomb which clearly indicates that A3 was sharing the intention with Al and A2 in committing the murder. Conviction of A3 under Section 302 IPC read with Section 149 IPC is modified as conviction under Section 302 IPC read with Section 34 IPC. [Para 20] (464-H; 46S-A"B] E

#7. Further, since the prosecution had not succeeded in establishing and proving that there was an unlawful assembly with a common object to commit the offence, conviction of the accused Nos. 3 to S (under Section 148 IPC) and accused Nos. 6 to ll (under Section 147 IPC) are set aside. [Para 21] [46S-C] F

#8. In view of the individual acts of the appellants, A4 and AS attacked PWl and PW2 on their left shoulders respecti.vely with sickles, conviction of AS is modified as conviction under Section 324 IPC and the sentence of rigorous imprisonment of one year is maintained. Conviction of A4 under Section 324 is affirmed and the sentence of imprisonment of one year imposed G upon him is affirmed. Considering the acts of accused Nos.6 to 10 that they attacked 'R' and PW-2 with sticks, conviction of accused Nos.6 to 10 under Section 323 read with Section 149 is modified as conviction under Section 323 IPC maintaining their sentence of imprisonment of six months. [Para 22] [46S-D-E] H 456 SUPREME COURT REPORTS [2017] 12 S.C.R. A B c