Nadumogru Ammu Shetty and Others vs Bapa alias Kunta

Curgenven, J.—It is unnecessary for me to express any opinion there with regard to the merits of the learned Sessions Judge''s view that the

convictions under Sections 326 and 148, Indian Penal Code, cannot stand together. He has accordingly set aside the convictions u/s 148, and the

argument now advanced before me is that having set aside those convictions the constructive liability of those accused who were not found guilty of

actually beating the complainant cannot now be visited by conviction u/s 326 read with Section 149, Indian Penal Code. I do not think that there is

any force in this contention. Section 149, Indian Penal Code, only lays down that where an offence is committed by a member of an unlawful

assembly in prosecution of a common object or such as the members knew to be likely to be committed in prosecution of that object, every

person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence. Accordingly the Court has only

to satisfy itself that there was an unlawful assembly with a common object and that the substantive offence was committed in prosecution of that

object. It is clear that this condition can be satisfied without any actual conviction under one of the rioting sections such as Section 148, and the

mere fact that the Court has thought it necessary to set aside the convictions u/s 148 on a technical point and not on a finding that the facts would

not warrant such a conviction can be no obstacle to applying the provisions of Section 149. I think therefore that the convictions of accused 4, 5,

8, 9 and 10 under Sections 326 and 149 are perfectly legal. The learned Sessions Judge having found that there was a riot and that the common

object of the assembly was to cause injuries to P.W. 2, and having further found that the causing of grievous hurt was a probable consequence,

those of the accused who were members of the assembly have rightly been convicted of it.

It has been suggested then that the facts will not warrant the inference that these persons by their presence sufficiently promoted the common

object as to make them liable u/s 149. But they were not only present, they surrounded the victim when he was being beaten and they kept away

other persons. It can hardly be doubted that they thereby furthered the common object of the assembly. The sentences of three months'' rigorous

imprisonment imposed upon them for this conduct are certainly not too severe.

The criminal revision petition is dismissed.