IMPORTANT POINT
When evidence established that accused formed an unlawful assembly common object of which was to kill deceased, acquittal of accused who actually fired shot at deceased, would not wipe out application of Section 149 IPC.

Headnote:Indian Penal Code, 1860-Section 304 Part I r/w 149-Appellant accused armed with country pistol, with other seven accused armed with weapons, fired at deceased which missed-Deceased was chased and other accused, acquitted by trial Court, fired a shot at deceased from a close distance and deceased fell down and finally died after about 2½ months-PW1, PW2 and PW3 claimed to be eye witnesses-Trial Court convicted appellant for murder with help of Section 149 IPC but High Court in appeal converted offence u/s 304 Part I IPC and reduced sentence to 10 years imprisonment-Sustainability of conviction on a plea that accused who fired shot which hit accused was acquitted and appellant convicted with help of Section 149 IPC-Unlawful assembly-"Common object" of unlawful assembly is to be ascertained from acts and language of members composing it and from all surrounding circumstances-It is not necessary for prosecution to prove which of the members of unlawful assembly did which or what act-Evidence established that there was an unlawful assembly whose object was to kill deceased-Acquittal of accused who actually fired shot did not wipe out application of Section 149 IPC-Conviction called for no interference.
       Held : The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. (Para 8)
       The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. (Para 9)
       The medical evidence is that death was the result of vertebral injury. The prosecution has established that the injury was on account of firing. Therefore, it is not correct as contended by learned counsel for the appellant that the death was due to septicemia and cannot in any manner be attributed to the gunshot which turned out to be fatal. It is significant that on post-mortem three pellets were found on cutting open the wound over the lower part of left leg. The medical evidence fits in with the ocular evidence. The physical consequences of the gunshot as noticed on post-mortem when read with ocular evidence leaves no manner of doubt about application of Section 304 Part I IPC. The evidentiary effect of the fire-shot fired by accused Chanda which missed the deceased has been clearly established. The evidence on record clearly establishes that there was an unlawful assembly whose common object was to kill the deceased. That being so, acquittal of accused Sartaj does not wipe out application of Section 149 IPC. The second part of Section 149 IPC clearly has application to the facts of the case. (Para 14)

JUDGMENT

Arijit Pasayat, J.-Conviction of the accused-appellant was altered by the Division Bench of the Allahabad High Court from Section 302 read with Section 149 to Section 304 Part I read with Section 149 of the Indian Penal Code 1860 (in short IPC ). Life imprisonment as awarded by the Trial Court was altered to 10 years imprisonment for the altered conviction under Section 304 Part I IPC. The Trial Court had not awarded any separate sentence for the other offences.

2. Background facts alleged by the prosecution leading to the trial are essentially as follows:

Hashim Khan (PW-1) lodged an FIR at about 1330 hours on 3.10.1977 in which the time of incident was stated to be 1300 hours on the same day. Distance of place of incident from police station was about one mile. As per FIR, PW-1, the complainant is the resident of village Lodhipur. The accused Chanda fired a shot at his uncle in the year 1975, a case was registered against him and that case was pending. Second time, in the year 1976, Sayeed and accused Chanda fired a shot on Qasim, the brother of the complainant. This case was about to be proceeded for trial in the Court. Accordingly, there was an old enmity between Qasim (hereinafter referred to as deceased ) and the accused. Because of this enmity on 3.10.1977 at about 1.00 p.m., when deceased was coming back from Shahjahanpur city to his native village Lodhipur, near the Check post at Lodhipur accused-Chanda and his brothers accused Zakir and Shakir sons of Shujat Ali and Abbas son of Jameeluddin, Hameeduddin head of the village (Mukhia), Zaheer Shah son of Ghafoor (of the same village) and Nanneh alias Ishaq son of Ishtiayaq who is the brother-in-law of Chanda were standing there. Accused Sartaj and Chanda were holding country made pistol in their hands. Accused Zaheer exhorted and asked others to take Qasim, and he should not escape. Thereupon deceased Qasim raised alarm and ran towards the city. All of a sudden, Chanda fired a shot at him, which did not hit him. Thereafter, all the accused persons chased deceased Qasim, and after some distance accused Zakir, Shakir, Nanneh, Abbas and others caught hold of deceased and Sartaj fired a shot at him from a close distance due to which he fell down on the road. This incident was witnessed by complainant (PW-1), Naim (PW-2) and Sajid Ali of the same village and by-passers that sight persons after shooting the gun went away towards Lodhipur. The complainant came to police station by putting Qasim on a Rickshaw in the injured condition. The deceased breathed his last on 11.1.1978. He prayed for the registration of the case and for appropriate action.

3. On completion of investigation charge sheet was placed. To substantiate its accusations 8 witnesses were examined including PW-1 Hashim Khan, Naim (PW-2) and Samiulla (PW-3) who claimed to be eye witnesses. Accused persons pleaded innocence and stated that they were falsely implicated due to enmity.

4. After considering the evidence on record the Trial Court found that there was mistake in describing the father s name of accused Sartaj. Accused-Zakir was acquitted because he was a crippled person and in the dying declaration of the deceased no role was ascribed to him. Similar was the position so far as accused Hameeduddin is concerned.

5. In appeal, the High Court altered the conviction so far as the accused persons who were found guilty by the Trial Court to Section 304 Part I IPC read with Section 149. Custodial sentence of 10 years was imposed. Conviction in terms of Section 307 read with Section 149 was maintained.

6. Mr. U.R. Lalit, learned senior counsel appearing for the appellants submitted that since Sartaj who is supposed to have fired the gunshot he has been acquitted Section 149 cannot have any application. Though the alleged occurrence took place on 3.10.1977, the deceased died on 11.1.1978. In all nine injuries were found at the time of post-mortem though at the first instance one injury was noticed on his back.

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2004 Supreme(SC) 585

IMPORTANT POINTWhen evidence established that accused formed an unlawful assembly common object of which was to kill deceased, acquittal of accused who actually fired shot at deceased, would not wipe out application of Section 149 IPC.

Cases Referred (4)

IMPORTANT POINT
When evidence established that accused formed an unlawful assembly common object of which was to kill deceased, acquittal of accused who actually fired shot at deceased, would not wipe out application of Section 149 IPC.