IMPORTANT POINT
Common object of unlawful assembly may be collected from nature of the assembly, arms it carried and behaviour at or before or after the scene of incident.

Headnote:(i) Indian Penal Code, 1860-Sections 302/149 and 307/149-Appellants armed with gun entered into Dalan while others stayed out side and appellant fired three times on son of informant PW 6 and then fired on daughter of informant-Son died soon thereafter-PW 2, injured daughter and PW 3, another family member besides PW 6 were the eye witnesses-Conviction recorded by trial Court upheld by High Court-Appeal-Conviction of appellant 2 to 4 challenged on plea that Section 149 IPC could not be attracted as they did not commit any overt act-It could not be a general proposition of law that unless an overt act was proved a person, member of unlawful assembly had no common object-Common object of unlawful assembly-Could be ascertained from acts and language of members composing it-High Court rightly applied Section 149 IPC as some of the accused came armed with guns and their acts preceding and succeeding the assault indicated existence of common object.
       Held : Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence 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 if the offence committed is not in direct prosecution of the common object of the assembly, 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 by all the members is the same, the knowledge that is the object 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 attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word knew used in the second branch 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 offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful 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 the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. 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 first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (Para 10)
       (ii) Indian Penal Code, 1860-Section 149-Application when presence of more than five persons is established but only four are identified-It would not affect applicability of Section 149. (Para 9)

JUDGMENT

Arijit Pasayat, J.-The appellant No. 1 (Ram Dular Rai) faced trial for the commission of offences punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (for short the IPC ). The other appellants were tried for offences relatable to Section 302 read with Section 149 IPC and Section 307 read with Section 149 IPC. Each of the appellants was also tried for commission of offence punishable under Section 148 IPC and Section 27 of the Arms Act, 1959 (in short the Arms Act ). They were found guilty and sentenced to undergo imprisonment for life for the offence relatable to Section 302 or Section 302 read with Section 149 IPC, as the case may be. Appellant No. 1 was further sentenced to undergo imprisonment for 10 years for the offence relatable to Section 307 IPC and other three appellants were sentenced to five years imprisonment for the offence relatable to Section 307 read with Section 149 IPC. Each of them were sentenced to undergo imprisonment for three years for the offence relatable to Section 148 IPC and Section 27 of the Arms Act. In appeal by the impugned judgment, appeal of the appellant Ram Dular Rai was dismissed. In respect of other appellants, conviction for offences relatable to Section 307 read with Section 149 IPC was set aside. The background facts leading to the trial is as follows :

2. The informant Baleshwar Nath Singh (PW-6) in his fardbayan recorded on 17.3.1988 at about 1.05 a.m. stated that he was sleeping in the night on the Dalan of the house where a lantern and a dhibri were burning giving sufficient light in the Dalan. He was sleeping at the eastern extreme on a cot and near him his son Kamla Singh, daughter of Kamla Singh, Renu Devi (PW-2), were also sleeping. Other members of the family were sleeping inside the rooms. At about 12.30 a.m. the accused-appellants each armed with double barrel gun came to the Dalan along with ten to eleven other persons and standing outside the Dalan, were also armed with guns. On being asked by the informant about their identity, appellant Lalu Rai scolded him and placed his gun on his chest. Accused-appellant Ram Dular Rai fired three times on his son Kamla Singh (hereinafter referred to as the deceased ) grievously injuring him, whereafter accused fired on Renu Devi, injuring her. Thereafter all the assailants fled away. Other members of the family and co-villager Jai Narain Singh (PW-3) also had seen the occurrence. Kamla Singh died due to the injuries soon thereafter. According to the informant, the reason for the assaults was that they had been opposing one Madho Singh since the election of Mukhiya of their Panchayat, for which reason the assailants had committed the offence.

3. The accused persons denied their alleged role in the alleged occurrence claiming that they have been falsely implicated. Accused-appellant Lallan Rai in his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short the Code ) claimed that he was not even present, for which he placed reliance on medical certificate. One witness was also examined as DW-1. The said witness Narain Chaupal was a constable who was deputed for the security for accused-appellant Ram Dular Rai after a dacoity was allegedly committed in his house. The witness (DW-1) claimed that on hearing gunshots he had called appellant-Ram Dular Rai and his brother Lal Mohar Rai and at his call they came out from their house. In essence, the stand was that since they were at their residence at that time, they could not have committed the alleged offence. Prosecution examined 13 witnesses, out of whom Renu Devi (PW-2) is an injured witness and the informant was PW-6. There were two other eye-witnesses namely Ramji Singh and Jai Narain Singh (PWs 1 and 3 respectively). Placing reliance on their evidence, the trial court convicted the appellants as noted supra.

4. In appeal, as noted supra a Division Bench of the Patna High Court upheld the conviction of accused-appellant Ram Dular Rai whil

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2003 Supreme(SC) 1206

IMPORTANT POINTCommon object of unlawful assembly may be collected from nature of the assembly, arms it carried and behaviour at or before or after the scene of incident.

Cases Referred (3)

IMPORTANT POINT
Common object of unlawful assembly may be collected from nature of the assembly, arms it carried and behaviour at or before or after the scene of incident.