Important points
1. In order to attract Section 149 IPC factum of unlawful assembly u/s 141 must be proved.
2. The essence of liability u/s 34 IPC is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action.

Headnote:(i) Indian Penal Code, 1860-Section 149 r/w Section 141-Condition precedent to invoke Section 149-Unlawful assembly must be proved.
       Held : From the evidence it transpires that the accused persons had gone to the field and were ploughing. Obviously, at that point of time it cannot be said that they constituted an unlawful assembly within the meaning of Section 141 of the Indian Penal Code inasmuch as it has not been established by the prosecution that they had one of the five specified objects enumerated in Section 141 of the IPC, as their common objects. Mr. B.B. Singh, however, relied upon the explanation to Section 141 and contended that an assembly which was not unlawful, when it assembled, may subsequently become an unlawful assembly. There is no dispute with the aforesaid preposition. But from the evidence of PWs. 1, 3 and 4, it is difficult for us to conceive that at any later point of time the accused persons can be said to have nurtured one of the five specified objects as their common objects. This being the position and in the absence of establishing the fact that the accused persons constituted an unlawful assembly, their conviction by taking recourse to Section 149 IPC is unsustainable. Section 149 postulates an assembly of five or more persons having a common object namely, one of those named in Section 141 and then the doing of acts by members of the assembly in prosecution of that object. In view of our conclusion that there was no unlawful assembly, conviction of the appellants under Section 149 IPC cannot be sustained. We accordingly set aside the conviction of the appellants under Section 302/149 IPC. (Para 2)
       (ii) Indian Penal Code, 1860-Section 34-Joint liability for criminal act-Essence of liability is to be found in existence of common intention-Distinct feature of Section 34 is element of participation in action-There must be pre-arrangement or premeditated concert.
       Held : Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it pre-supposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. (Para 3)
       In the instant case 13 accused persons were ploughing a land. The victim went to the land objecting to the ploughing. Thereupon fight ensued. To accused persons caught hold of the viction and two other inflicted injuries on the victim. The trial Court convicted the accused persons who caught hold of the victim also u/s 302 r/w 34.
       Held : From the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Ramanand Yadav cannot be held guilty of the charge under Section 302/34 IPC but accused Samundar Yadav and Sheo Layak Yadav did commit the offence under Section 302/34, having assaulted deceased Tapeshwar on his head by means of gandasa on account of which Tapeshwar died. The accused Ram Pravesh Yadav and Ramanand Yadav are, therefore, acquitted of the charges levelled against them. (Para 3)

Order

Seven accused appellants who were tried along with 6 others for having committed an offence under Section 302/149 and some other offences were ultimately convicted by the learned Sessions Judge under Section 302/149 and were sentenced to rigorous imprisonment for life for having caused the murder of Mundrika and Ram Tapeshwar Yadav. Out of the 13 accused persons who were convicted by the learned Sessions Judge, one expired after the judgment of the learned Sessions Judge. The High Court considered the case of all the accused persons who stood convicted by the learned Sessions Judge and acquitted 5 of them but maintained the conviction of rest 7 under Sections 302, 302/149, 302/34 and other offences and as such these appeals are by the 7 appellants. According to the prosecution case these accused persons were ploughing the land claiming the land to be theirs on the date of occurrence and some of the accused persons had a gun while some others had weapons like gandasa and lathis. When the informant and some others belonging to his party went and protested as to why they are ploughing the land belonging to the informant the accused persons asserted that it is their land and, therefore, they would continue to plough the land in question. On this score there was some altercation and then accused Ram Das Yadav brought out the gun and fired which hit Mundrika and Mundrika died at the spot. Two other accused persons, namely, Ram Pravesh Yadav and Ramanand Yadav suddenly came and caught hold of Tapeshwar Yadav belonging to the complainant party and at that point of time Samundar Yadav and Sheo Layak Yadav came with gandasa in their hand and gave blows on the head of Tapeshwar by means of gandasa. The informant was caught hold by Ramanand Yadav, Sukhdeo Yadav, Sheo Layak Yadav and Ram Ishwar Yadav who has already died, gave a lathi blow on the wrist and Ramanand Yadav gave a chhura blow. On the basis of information given by PW. 1, the police started investigation and submitted the charge-sheet, as already stated. The prosecution case is sought to be proved through the evidence of the 3 eye witnesses PWs. 1, 3 and 4. The learned Sessions Judge relying upon the evidence of the aforesaid eye witnesses came to hold that all the accused persons formed an unlawful assembly and in furtherance of the common object of the said assembly accused Ram Das Yadav had fired the gun as a result of which Mundrika died and, therefore convicted all of them under Section 302/149. Accused Ram Das Yadav who had given the gun blow was convicted under Section 302. On appeal, the High Court re-appreciated the evidence of the three eye witnesses PWs. 1, 3 and 4 and came to the conclusion that their evidence can be relied upon which finds corroboration from the evidence of the doctor. The High Court further came to the conclusion that there is satisfactory and convincing evidence on record to establish that Mundrika Yadav had been shot at by Ram Das Yadav, after some exchange of words in the field and Mundrika died at the spot and that Ram Tapeshwar after being caught was given blows with gandsa by Samundar Yadav and Sheo Layak Yadav and the informant too after being caught had been given blows with lathi and chhura by Ram Ishwar Yadav and Ramanand Yadav but since the witnesses had not ascribed any positive role to accused Rajeshwar Yadav, Chandeshwar Yadav, Devi Dayal Yadav, Rajendra Yadav and Sonadhari Yadav, they cannot be held to have shared the common object of assaulting or killing persons who became the victim of the occurrence and accordingly held them to be not guilty of any offence and acquitted them of the charges. But so far as the five appellants are concerned, the High Court held them guilty of the offence under Section 302/149 IPC, and affirmed the sentence of imprisonment for life. The High Court also held accused Samundar Yadav and Sheo Layak Yadav to be guilty of offence under Section 302/34 IPC for having caused the murder of Tapeshw

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