Paragraph numbers below are the court’s original numbering, recovered from the source text.
8. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecu- ti.on of the common object must be one which is committed with a view to accomplish the common object. In order that the of- fence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even ifthe offence commit- c ted .is not in direct prosecution of the common object of the as- sembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired D by all the members is the same, the knowledge that is the ob- ject which is being pursued is shared by all the members and . they are in general agreement as to how it is to be achieved and that is now the common object of the assembly.
An object is entertained in the human mind, and it being merely a mental E attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person com- mils and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from .. F the nature of the assembly, arms it carries and behaviour at the time of or before or after the occurrence. The word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an G offence is committed in prosecution of the common object, it would generally be an offence which the members of the uni aw- ful assembly knew was likely to be committed in prosecution of the common object.
That, however, does not make the converse proposition true; there may be cases which would come within H the second part but not within the first part. The distinction be- STATE OF KARNATAKA v. CHIKKAHOTTAPPA @ VARADE GOWDA [DR. ARIJIT PASAYAT, J.] tween the two parts of Section 149 cannot be ignored or oblit- erated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part but offences committed in pros- y ecution of the common object would also be generally, if not __,., always, be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. (See Chikkarange Gowda and others v. c State of Mysore AIR 1956 SC 731). These aspects were also recently highlighted in Chandra & Ors. v. State of UP and Anr. [2004 (5) sec 141].
9. The injuries which were inflicted by the accused per- r sons on the deceased as noted by the High Court.are as fol- lows: One contusion 4" X 4" on occipital region of head. 2. Deep incised wound 2" X 1" x 2" right side of the partial region of head. 3. Incised wound 6 X 3" X 1" on the left side of the fore head. Bone exposed on both bounds. Blood stains seen on all the wounds. 4. Contusion 3"x4" on right shoulder joint. 5. Deep incised wound 5"-x 2" x1" on middle 113rd of right arm humerous exposed. 6. Incised wound 4"x3" x2" on right axilla in horizontal direction, pleura and lung exposed. 7 . Deep incised cut injury on right wrist joint. Right hand detached from the body at the level of wrist joint, only skin flap is connecting, all the bones are exposed. 8. Deep incised wound 2" X 2" on dorsum of the left H hand bones exposed wound is in horizontal direction. )… 9. Incised wound 2" x 1" x 1" on left elbow joint, horizontal direction, bones exposed, Radial artery and small blood vessels cut open.
10. Deep incised wound upper 113rct of the left fore arm 2"x2"1 just below the elbow joint, bones exposed.
11. Deep incised wound 4" x 3" x 2" on middle, 113rct and the left thigh, shaft of left femur exposed and blood vessels cut open. Wound is in a horizontal direction. c
12. Deep incised wound 3" x 2" x 1" on the !eft knee joint, pattellar tendon are cut and bone exposed. Horizontal direction femeral artery and sophanus vain cut open.
13. Deep incised wound 3" x 2" x 2" right knee joint, pattella bone exposed 2" x 2" x 2" blood vesels are cut open, horizontal direction.
14. Deep incised wound 6" x 3" just below the left knee joint. Head of the tibia exposed. Blood vessels cut open, horizontal direction.
15. Incised wound 3" x 2" x 3" on lateral aspect of right thigh, shaft of femur exposed, blood vessels cut open, horizontal in direction, blood clots seen on the \r wounds.
16. Deep incised wound 6" x 4" x 5" middle 1/3'd of right leg, tibia and febul also cut superficially, horizontal in direction, femoral artery sophenus vain cut open.
17. Left ankle joint and tendo achulus tender also cut into pieces.
18. Deep incised wound 3"x2"x1" on the left popleteal fosa, all the blood vessels cut open, horizontal in direction. STATE OF KARNATAKA v. CHIKKAHOTTAPPA @ VARADE GOWDA [DR. ARIJIT PASAYAT, J.]
19. Incised wound 6"x4" on right leg on the medial aspect, all the muscles and blood vessels cut open, horizontal in direction.
20. Incised wound 2"x 2" x1" on dorsum of right foot, horizontal in direction. 10. As noted above, there were three injuries on the head and injury No.6 was of such nature that the plura and lung were exposed. Injury No.7 was a deep incised cut injury on right wrist joint. Right hand was detached from the body at the level of wrist joint. Further, rest of the injuries were not on the lower c parts of the body as noted by the High Court. In fact the injury No.4 was an injury on the right shoulder joint and injury No.5 was a deep incised wound S"x 2"x 1", on middle 1/3'd of right arm humerous exposed. 11. Most of the injuries were deep incised wounds of vary- ing sizes. Additionally, as noted above, the rnultiple fractures on the base of the occipital bone was noticed. The intention of the assailants as established by the evidence of the witnesses was the cause of death of the deceased and not to cause grievous injury. 12. Above being the position the High Court's judgment is clearly unsustainable and is set aside. The respondents are convicted for offence punishable under Section 302 read with Section 149 IPC instead of Section 326 read with Section 149 IPC as held by the High Court. The sentences imposed by the Trial Court stand restored. Respondents shall surrender to cus- tody forthwith to serve remainder of sentences. 13. Appeal is allowed. S.K.S. Appeal allowed. t