accused-appellants did cause the death of eight persons in a barbaric and brutal manner wherein merciless killing of a child of only 1½ years is also involved. Therefore, the accused in the present case do not deserve any sympathy. 21. Hence, all the criminal appeals filed by the appellants are sans merit and are liable to be dismissed. We uphold the judgment passed by the High Court as far as awarding of sentences is concerned. However, the sentences shall run in conformity with the observations made by the Constitution Bench of this Court in its judgment dated 19.07.2016 passed in these appeals. The impugned judgment passed by the High Court is modified to the above extent and all the appeals are disposed of accordingly.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.231-233 OF 2009
MUTHURAMALINGAM & ORS. ….. Appellant(s)
:Versus:
STATE REPRESENTED BY INSPECTOR OF POLICE ….. Respondent(s)
WITH
Criminal Appeal No.225 of 2009
Criminal Appeal Nos.226-227 of 2009
Criminal Appeal No.895 of 2009
Criminal Appeal No.429 of 2015
JUDGMENT
Pinaki Chandra Ghose, J.
1. Brief facts giving rise to the initiation of criminal proceedings in
these cases are as follows: A gruesome incident occurred in Taluk
Ramanathapuram, District Tamil Nadu in which the appellants, the
deceased and few witnesses were related to each other. As per
prosecution case, on 10.02.1994, accused persons assembled unlawfully
with deadly weapons and with the common intention to commit murder,
they chased the family members of deceased Rajendran when they got
down from the bus in the village near Karisalkulam Branch Road. They
were coming back to their village after attending the cremation of
Rajendran, who died in another case on 09.02.1994, and the appellants
herein and few others were accused in that case. The accused persons,
in a gruesome attack on the family members, murdered 8 persons,
including one who succumbed to the injuries later in the Hospital. PW-
1 immediately after the occurrence proceeded to Kovilankulam Police
Station and lodged the complaint, Ex.P1. PW-22 who was the Sub-
Inspector of Police at Kovilankulam Police Station registered the case
as Crime No.6 of 1994 under Sections 147, 148, 324, 307, 302 of the
Indian Penal Code (“IPC”) and under Section 25(1) of Indian Arms Act.
After completing the investigation, PW-23 filed the charge-sheet
against the accused persons under Sections 147, 148, 324, 307,
506(ii), 307 & 302 read with Section 34 IPC.

2. Originally there were 21 accused persons. Accused Chandran died during
the investigation. Hence, 20 accused persons (A1 to A20) were tried by
the Court of Additional Sessions Judge, Fast Track Court,
Ramanathapuram. However, accused No.7 – Murugan @ Kodarai died during
the trial. The learned Additional Sessions Judge, Fast Track Court,
Ramanathapuram, convicted A1 to A6 and A8 to A20 each and sentenced
them to undergo rigorous imprisonment for various offences. A18 –
Malaiyandi died during the pendency of the appeal before the High
Court. The learned Additional Sessions Judge found the occurrence to
be a brutal and gruesome attack by the accused persons forming
unlawful assembly and causing death of eight persons, including a 1½
years child, with a common objective of eliminating everyone in the
deceased’s family.

3. Learned Additional Sessions Judge delivered his judgment on
30.05.2006, holding all the accused persons guilty and sentenced them
as follows:
|ACCUSED |CONVICTION |SENTENCE |
|A-1 to A-6 & A8 to A20 |U/s 148 IPC |RI for one year |
|A-1 to A-6, A-9 to A13, & |U/s 302 r/w S.34 IPC |Imprisonment for life |
|A-15 | | |
| | | |
|A-8 and A-17 |U/s 302 r/w S.34 IPC |Imprisonment for life |
| |(2 counts) |for each count |
|A-1 to A-6, A-9 to A-13 | U/s 302 r/w S.149 |Imprisonment for life |
|A-15, A-16, A-18 to |(7 counts) |for each count |
|A-20 | | |
| | | |
|A-14 |U/s 302 r/w S.149 IPC |Imprisonment for life |
| |(8 counts) |for each count |
|A-8 and A-17 | U/s 302 r/w S.149 IPC |Imprisonment for life |
| |(6 counts) |for each count |
| | | |
|A-14 and A15 |U/s 307 IPC |RI for 10 years |
|A1 to A6, A8 to A13 and A16 | U/s 307 r/w S.149 IPC |RI for 10 years |
|to A20 | | |
4. Against the judgment and order dated 30.05.2006 passed by the learned
Additional Sessions Judge, criminal appeals were preferred before
Madurai Bench of the Madras High Court. The High Court while disposing
of Criminal Appeal Nos.313, 323, 328, 406, 451 and 539 of 2006, found
that there was no evidence to warrant conviction of A5, A13, A19 and
A20 in the instant case. However, the High Court found all other
accused guilty of eight barbaric murders and attempt to murder while
forming unlawful assembly. The High Court, in paragraph 66 of its
judgment, modified the conviction and sentence imposed by the lower
Court as follows:
i. “A1 to A4, A6, A8 to A12 and A14 to A17 are convicted under
section 148 IPC and sentenced to undergo rigorous imprisonment
for one year;
ii. A1 to A4, A6, A8 to A12, A14 to A17 are convicted under section
302 read with Section 149 IPC(8Counts) instead of 302 read with
34 IPC and sentenced to undergo imprisonment for life for each
count;
iii. We confirm the conviction of A1 to A4, A6, A8 to A12 and A14 to
A17 under Section 307 read with Section 34 IPC and sentence them
to undergo rigorous imprisonment for ten years;
iv. We set aside the conviction and sentence imposed on A5, A13, A19
and A20.”
The High Court in paragraph 73 of the impugned judgment, confirmed the
direction given by the Trial Court that the sentences of life
imprisonment imposed for each count and sentence of imprisonment for
10 years, shall run consecutively. Aggrieved by the judgment and order
dated 14.12.2007, passed by the High Court, the appellants have
approached this Court invoking the jurisdiction under Article 136 of
the Constitution of India. All the connected appeals were clubbed
together for common adjudication since they are arising out of same
impugned judgment.

5. Since legitimacy of the consecutive life sentences in the light of
Section 31 of the Code of Criminal Procedure (in short ‘Cr.P.C.) was
challenged in these appeals, before arriving at the conclusive
findings, a three-Judge Bench of this Court referred the matter to
larger Bench and the said larger Bench – Constitution Bench, vide its
judgment dated 19.07.2016, upheld the legitimacy of consecutive
sentences of life imprisonment and held that “while multiple sentences
of imprisonment for life can be awarded for multiple murders or other
offences punishable with imprisonment for life, the life sentences so
awarded cannot be directed to run consecutively.” The Constitution
Bench further held as follows:

“The power of the Court to direct the order in which sentences
will run is unquestionable in view of the language employed in
Section 31 of the Cr.P.C. The Court can, therefore, legitimately
direct that the prisoners shall first undergo the term sentence
before the commencement of his life sentence. Such a direction
shall be perfectly legitimate and in tune with Section 31. The
converse however may not be true for if the Court directs the
life sentence to start first it would necessarily imply that the
term sentence would run concurrently. That is because once the
prisoner spends his life in jail, there is no question of his
undergoing any further sentence.”

6. Therefore, the only substantial question which remains for our
consideration in the present case is whether the High Court in the
facts and circumstances of the case, was justified in modifying the
conviction from that under Section 302 read with Section 34 IPC to
that of Section 302 read with Section 149 IPC.

7. Mr. ATM Ranga Ramanujam, learned senior counsel appearing for the
appellants submitted that in view of the deposition of PW12, all the
eye-witnesses (PW1-PW4) cannot be believed as it casts suspicion on
the prosecution version as it is admitted by PW12 in his cross-
examination that he saw only three bodies strewed and no injured
person at the place of occurrence. He further submitted that the
investigation has not been done properly in the present case, and
therefore, the accused persons deserve to be acquitted. It was further
submitted that there is substantive difference between Section 34 and
Section 149 of IPC and substitution of Section 34 for Section 149
would result in prejudice to the accused and therefore the same may
not be permitted. Further, no satisfactory explanation to such
substitution was given. He further submitted that there was delay in
the lodging of FIR which creates doubts.

8. Per contra, Mr. M. Yogesh Kanna, learned counsel for respondent
submitted that the volunteered statement of A5 was reduced into
writing, being Exh.29, whereby 7 aruvals, 10 velsticks, a toy gun and
3 knives were recovered and it was clearly spoken to by the
prosecution witnesses that A1 stabbed deceased (in short ‘D’) D1 with
velkambu on his stomach; A2, A3, A4, A6, A10, A14, A18 attacked D4,
D5, D6 with velstick and aruval; A7 attempted to attack PW3 with
velstick; A8 stabbed D7 with velstick on his left arm; A9 attacked D1
repeatedly with aruval; A11 stabbed D2 on his stomach with velstick;
A12 stabbed D3 with velstick on his stomach and chest, left thigh and
other parts of body; A15 attacked D2 with aruval on his left hand; A16
attacked D3 with aruval on his right hand; A17 attacked D7 with aruval
on his left hand. It was further submitted that all the accused were
armed with sharp and deadly weapons and were hiding in the bushes.
When the deceased came near the place of occurrence, appellants
attacked them shouting slogans that “kill them”, “hack them” and thus
their act itself substantiates the commission of crime within the
meaning of Section 302 read with 149 of IPC.

9. Learned counsel for the respondent further submitted that the
averments made by the appellants in the present case are not
sustainable as eye-witnesses have vividly spoken about the presence
and modus-operandi of the offence committed showing their motive,
which are also essential ingredients to confirm conviction under
Section 149 of IPC. The plea of the appellants that a weapon, like
velstick, cannot cause death was rightly rejected by the High Court as
it was observed by the High Court that cut injury could have been
caused by velstick, depending upon the manner in which the weapon was
used. Since PW-12 is not the eye-witness of the occurrence, he cannot
state any substantive part of the offence and the manner in which the
offence would have been committed. It was lastly submitted by the
learned counsel for the respondent that albeit there was agitated
atmosphere at the village, complaint was given the same day at 05:30
pm and thus there was no delay in lodging the FIR.

10. Having heard the learned counsel on both sides, the legality of the
conviction under Section 302 read with Section 149, has been found
disputed. As regards the case in the light of common intention as per
Section 34 IPC, this Court in Devi Lal Vs. State of Rajasthan, (1971)
3 SCC 471, in para 13 held that “the words ‘in furtherance of the
common intention of all’ are a most essential part of Section 34 of
the Indian Penal Code. It is common intention to commit the crime
actually committed. The common intention is anterior in time to the
commission of the crime. Common intention means a pre-arranged plan.”

11. But this case doesn’t appear to fulfill the essentials of common
intention. The emphasis of such sort of constructive liability and the
legality of conviction by applying Section 34 or Section 149 IPC, have
been examined by Courts in several cases. In Willie (William) Stanley
Vs. State of M.P., AIR 1956 SC 116, it was held as follows:
“Section 34, 114 and 149 of the Indian Penal Code provide for
criminal liability viewed from different angles as regarding
actual participants, accessories and men actuated by a common
object or a common intention and ‘the charge is rolled-up one
involving the direct liability and the constructive liability’
without specifying who are directly liable and who are sought to
be made constructively liable. In such a situation, the absence
of a charge under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by itself,
and before a conviction for a substantive offence without a
charge can be set aside, prejudice will have to be made out.”

12. Moreover, a distinction between ‘’common intention’ and ‘common
object’ was made out by this Court in the case of Chhitarmal Vs. State
of Rajasthan, (2003) 2 SCC 266 as under:
“A clear distinction is made out between common intention and
common object in that common intention denotes action in concert
and necessarily postulates the existence of a pre-arranged plan
implying a prior meeting of the minds, while common object does
not necessarily require proof of prior meeting of minds or pre-
concert. Though there is substantial difference between the two
sections, they also to some extent overlap and it is a question
to be determined on the facts of each case whether the charge
under section 149 overlaps the ground covered by section 34.”

13. In the present case, motive is seen in the collective testimony of eye-
witnesses PW1-PW3 when accused came out from the bushes shouting “kill
them”, “hack them”, “fire them”, as also mentioned in the complaint
Exhibit P-1. A child was also mercilessly attacked in the incident
with a spear on his chest. Accused No.7-Muthuramalingam snatched away
the child from her mother Indira Gandhi and killed her too with
velstick.
14. Even PW4 (though not an eye–witness of whole occurrence) also hid in
the nearby bushes to save his life. In his statement he also
corroborated the factum of hearing shooting and also after identifying
accused Muthuramlingam stated that “his wife was also killed by
accused Muthuramlingam with knife and accused Dhakshinamoorthi cut his
wife with aruval”. In a similar case of Umesh Singh & Anr. Vs. State
of Bihar, (2000) 6 SCC 89, this Court observed:
“A report was made by Jugeshwar Singh (PW 7) alleging that the
appellants herein along with several other persons numbering
about 20 came to the “khalihan” (threshing floor) of Bhola Singh
where he and other members of his family were threshing paddy.
They tried to take away the paddy. Upendra Singh threatened that
any resistance would be met with such action which might even
result in death. Thereafter Rajendra Singh hit Bhola Singh with
a lathi and Upendra Singh moved backwards and fired at Bhola
Singh with a gun as a result of which Bhola Singh was hit and
fell down writhing in pain. Saryu Singh was shot at by Rajendra
Singh and Bhagwat Dayal Singh, who was also inflicted a bhala-
blow by Arvind Singh, appellant in the connected matter, Umesh
Singh and Sheonandan Singh fired at Rajdeo Singh as a result of
which he fell down. When Dharmshila, wife of Bhola Singh reached
the threshing floor with her child aged about one-and-a-half-
years old in her arms, named Rinku, Sheonandan Singh snatched
the child and threw the child on the ground as a result of which
the child died. After investigation, the police submitted a
charge-sheet against seven persons named in the FIR as three of
them had died during the pendency of the investigation. The
trial court convicted Sheonandan Singh and Upendra Singh under
Section 302 IPC and sentenced them to death, one of the accused
— Satyendra Singh, was acquitted and the rest of the accused
persons were convicted under Section 302 IPC read with Section
149 and sentenced to life imprisonment. They were further
convicted under Section 324 read with Section 148 IPC and under
Section 27 of the Arms Act. On appeal to the High Court,
conviction was maintained while the sentence of death on
Sheonandan Singh and Upendra Singh was reduced from one of death
to life imprisonment thereafter. Appeals have been preferred
before this Court”.

And later at Para No.3 of the judgment it was held:

“Therefore, there is ample evidence on record in the shape of
the evidence of the eyewitnesses and the witnesses who had
sustained injuries, sounding a ring of truth to the prosecution
case put forward, with the trial court and the High Court having
taken identical views, we do not think there is any good reason
to upset those findings.”.
Thus, we are of the considered opinion that prosecution case has been
well established by the testimonies of eye-witnesses PW1-PW3 and
corroborated by PW4, wherein factum of unlawful assembly was proved.

15. Before arriving at the conclusion, we wish to supply emphasis in the
case of Mohan Singh Vs. State of Punjab, AIR 1963 SC 174 = 192 Supp
(3) SCR 848, where the law on common object in an unlawful assembly
was explained as under:
“8. The true legal position in regard to the essential
ingredients of an offence specified by s.149 are not in
doubt. Section 149 prescribes for vicarious or constructive
criminal liability for all members of an unlawful assembly where
an offence is committed by any member of such an unlawful
assembly in prosecution of the common object of that assembly or
such as the members of that assembly knew to be likely to be
committed in prosecution of that object. It would thus be
noticed that one of the essential ingredients of section 149 is
that the offence must have been committed by any member of an
unlawful assembly, and s. 141 makes it clear that it is only
where five or more persons constituted an assembly that an
unlawful assembly is born, provided, of course; the other
requirements of the said section as to the common object of the
persons composing that assembly are satisfied. In other words,
it is an essential condition of an unlawful assembly that its
membership must be five or more.”

16. Moreover, in the case of Mahadeo Singh Vs. State of Bihar, (1970) 3
SCC 46, it was observed by this Court:
“10. In the present case the facts and the circumstances show
that the assault and the demolition of the stairs of the well
took place in the same transaction because the members of the
unlawful assembly attacked Ram Prasad and his people and injured
some of them simultaneously or in ‘quick succession. Sarjug
Mahto and Suraj Mahto both said that at the instigation of
accused Ram Charan accused Manogi gave a bhala blow near the
left elbow of Sarjug Mahto. Sarjug also said that accused Sheo
Pujan gave him a bhala blow below the elbow of the left hand and
the appellant gave him a bhala blow on the finger of right hand.
According to Suraj Mahto the appellant struck Sarjug Mahto on
the finger of his right hand. Suraj and Sarjug then raised an
alarm. On hearing the alarm Ram Prasad, Bharat and Lakhan came.
Ram Prasad protested to the accused against the attack on Sarjug
Mahto. At the instigation of accused Ram Charan accused
Rajballam struck Ram Prasad With a bhala. Ram Prasad fell down
and died there. Ram Lakhan then struck Bharat with a garasa. Ram
Charan struck him on the head with a bhala. The assailants then
fled away. The evidence proves that the common object of all the
members of the assembly was that murder was likely to be
committed in prosecution of a common object, namely, to commit
murder, assault, mischief and criminal trespass. All the members
of the assembly were armed with weapons; they knew that murder
was to be committed in prosecution of that object. It cannot,
therefore, be said that the appellant is not guilty of the
charge under Sections 302/149 of the Indian Penal Code.”

17. However, an overt act is not always an inflexible requirement of rule
of law to establish culpability of a member of an unlawful assembly.
The crucial question is whether the assembly entertained a common
unlawful object and whether the accused was one of the members of such
an assembly by intentionally joining it or by continuing in it being
aware of the facts which rendered the assembly unlawful. Without
unlawful object no assembly becomes an unlawful assembly.

18. Further, in paragraph 6 of Shambhunath Singh Vs. State of Bihar, AIR
1960 SC 725, it was held by this Court:
“Section 149 of the Indian Penal Code is declaratory of the
vicarious liability of the members of an unlawful assembly for
acts done in prosecution of the common object of that assembly or
for such offences as the members of the unlawful assembly knew to
be likely to be committed in prosecution of that object. If an
unlawful assembly is formed with the common object of committing
an offence, and if that offence is committed in prosecution of
the object by any member of the unlawful assembly, all the
members of the assembly will be vicariously liable for that
offence even if one or more, but not all committed the offence.
Again, if an offence is committed by a member of an unlawful
assembly and that offence is one which the members of the
unlawful assembly knew to be likely to be committed in
prosecution of the common object, every member who had that
knowledge will be guilty of the offence so committed. But
“members of an unlawful assembly may have a community of object
upto a certain point, beyond which they may differ in their
objects, and the knowledge possessed by each member of what is
likely to be committed in prosecution of their common object may
vary not only according to the information at his command, but
also according to the extent to which he shares the community of
object and as a consequence of this the effect of Section 149 of
the Indian Penal Code may be different on different members of
the same unlawful assembly.” Jahiruddin v. Queen Empress, ILR 22
Cal 306.”

19. Furthermore, in the case of Mizaji Vs. State of UP, AIR 1959 SC 572,
this Court observed:
“From this conduct it appears that members of the unlawful
assembly were prepared to take forcible possession at any cost
and the murder must be held to be immediately connected with the
common object and therefore the case falls under s.149, Indian
Penal Code and they are all guilty of murder. This evidence of
Hansram and Matadin which relates to a point of time immediately
before the firing of the pistol shows that the members of the
assembly at least knew that the offence of murder was likely to
be committed to accomplish the common object of forcible
possession.”

20. After careful consideration of the submissions made by the learned
counsel on both sides, we are of the considered opinion that the
accused-appellants did cause the death of eight persons in a barbaric
and brutal manner wherein merciless killing of a child of only 1½
years is also involved. Therefore, the accused in the present case do
not deserve any sympathy.

21. Hence, all the criminal appeals filed by the appellants are sans merit
and are liable to be dismissed. We uphold the judgment passed by the
High Court as far as awarding of sentences is concerned. However, the
sentences shall run in conformity with the observations made by the
Constitution Bench of this Court in its judgment dated 19.07.2016
passed in these appeals. The impugned judgment passed by the High
Court is modified to the above extent and all the appeals are disposed
of accordingly.
. . . . . . . . . . . . . . . . . .
.J
(Pinaki Chandra Ghose)
. . . . . . . . . . . . . . . . . .
.J
(Amitava Roy)
New Delhi;
December 9, 2016.

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