IMPORTANT POINT
What common object of unlawful assembly is at a particular stage of incident is essentially a question of fact to be determined keeping in view nature of assembly, arms carried by members, behaviour of members at or near the scene of incident.

Headnote:(i) Indian Penal Code, 1860-Sections 147, 148, 302/149 and 307/149-24 persons were convicted by trial Court for offences-High Court dealing with case of 22 accused, one having died during appeal and other being juvenile and given benefit on point of sentence, found appellants 10 to 23 were armed with lathis only and no other material was to bring home the accusation against them and were acquitted-Case of appellant No. 5, though similarly place with acquitted accused was distinguished on fact that being son of main accused who was prime mover he might have a motive-In absence of any positive material in that regard, there was no scope to distinguish his case and his conviction could not be sustained. (Para 12)
(ii) Indian Penal Code, 1860-Sections 147, 148, 302/149 and 307/149-Appellant convicted under-Conviction of those appellants to whom no overt act was attributed questioned by invoking Section 149 IPC-Common object-It could not be laid down as general proposition of law that unless overt act was proved a person, alleged to be member of unlawful assembly, was not member of such assembly-Common object of assembly was a question of fact to be determined keeping in view the nature of assembly, arms carried by them and behaviour of members of assembly-Two of the appellants were armed with fire arm which they used in causing injuries to deceased, another with spear and another with lathi which they used in causing injuries upon deceased-Appellants were rightly convicted by application of Section 149 IPC. (Paras 13 to 15 and 20)

JUDGMENT

Arijit Pasayat, J.-The six appellants faced trial along with 18 others for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short the IPC ). They were convicted by the Trial Court. For the offence relatable to Section 302 read with Section 149 IPC, life imprisonment was awarded; whereas for the offence relatable to Section 307 read with Section 149 IPC imprisonment of 7 years was awarded. According to the prosecution, one Devi Charan (hereinafter referred to as the deceased D-1 ) lost his life on account of murderous assaults of the accused persons. Two other persons namely, Buddha and Shanti Devi (described hereinafter as deceased D-2 and D-3 respectively) lost their lives in the incident. All the 24 accused persons preferred appeal before the High Court. The High Court found that one accused named Shyamu was a juvenile and with reference to Section 2(4) of the U.P. Children Act, 1951 his conviction was maintained, but he was extended the benefit of the said Act. Though one Ram Pal was named in the first information report, no charge sheet was submitted so far as he is concerned. One Narena died during the pendency of the appeal before the High Court and the appeal abated so far as he is concerned. Dealing with the case of other 22 accused persons, the High Court found that the appellants 10 to 23 were stated to be armed with lathies only. There was no sufficient material to bring home the accusations so far as they are concerned. Though one Raj Pal was also similarly placed, the High Court made a distinction holding that he being the son of Harkesh, the prime mover of the entire episode, it can be presumed that he may have had a motive to join the unlawful assembly with his father, brother and others. Though one Mahesh Chand was also stated to be holding a spear, he was also found to be not guilty on the logic of the other accused persons who were holding lathies. He was also given the benefit of doubt.

2. The prosecution version as unfolded during trial is as follows:

On the fateful day at about 11.30 a.m. the accused Harkesh started constructing a passage adjacent to the wall of Satya Prakash, who resisted and raised objection to the construction of the passage adjacent to his wall. He complained of the matter to Tejveer (PW-2) who thought it proper to resolve the dispute and called persons from both the sides. Jai Prakash (PW-1) the informant, Satya Prakash (PW-5) and others collected in front of the Gher of accused Harkesh for Panchayat. From the other side, accused Harish Chandra and other accused persons assembled for Panchayat over the issue. They were allegedly armed with various weapons. Harish Chandra started exchanging hot words with Satya Prakash (PW-5) and he asked his companions (other accused) to kill the persons on the prosecution side. Resultantly, all the accused persons attacked the members of the other side, who had assembled to join the Panchayat and injured Indra Pal, Satya Prakash (PW-5), Sant Singh, Faqir Chand, Mukut Lal, Chandra Pal, Ram Jas and Tejveer (PW-2) on the side of the prosecution.

3. Instantaneously, all the accused reached the Baithak of deceased nearby the Gher of Harkesh. There Harish Chandra told the deceased that he would be taught a lessor for the litigation started by him two years back. Accused Harish Chandra and Har Prasad opened fire on Devi Charan. Harkesh wielded spear and Raj Pal gave a lathi blow to Devi Charan. It, however, appears that Devi Charan did not receive any injury from such weapons, as he received gunshot wounds only according to post mortem report. Devi Charan died on the spot.

4. The accused then reached the Gher of Jai Prakash (PW-1) son of deceased D-2, Buddha. There, spear blow was struck in the abdomen of Buddha. Jai Prakash s mother Smt. Shanti Devi rushed up to save her husband, but she was also given spear blow. Harish Chandra also opened fi

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2004 Supreme(SC) 290

IMPORTANT POINTWhat common object of unlawful assembly is at a particular stage of incident is essentially a question of fact to be determined keeping in view nature of assembly, arms carried by members, behaviour of members at or near the scene of incident.

Cases Referred (6)

IMPORTANT POINT
What common object of unlawful assembly is at a particular stage of incident is essentially a question of fact to be determined keeping in view nature of assembly, arms carried by members, behaviour of members at or near the scene of incident.