2005 Supreme(SC) 111

SUPREME COURT OF INDIA
Arijit Pasayat : S.H.Kapadia
Sunil Kumar And Another
Versus
State Of Rajasthan
Case No. : 123 of 2005
Date of Decision : 1/19/05
Advocates Appeared: K.V.Mohan : Yogesh Kumar Dullar : Ajay Bhalla : Anoop Khullar : A.K.Yadav : R.Ramesh Kumar : D.S.Chaudhary : L.S.Chaudhary : V.N.Raghupathy : S.R.Bajwa : Sushil Kumar Jain : H.D.Thanvi : A.P.Dhamija : Ram Niwas : Puneet Jain : Pratibha Jain : Mulkh Raj Vij : Jagdeep Dhankhar : Anil Karnwal : K.P.S.Dalal : Sushil Balwada : Manish Kumar : Ansar Ahmed Choudhary

Headnote:

A. Indian Penal Code, Sections 302 and 149 - Common object of unlawful assembly- All the eight accused persons were armed with weapons, they surrounded the deceased and in fact prevented others from going near the deceased to rescue him-They arrived together in the same jeep and left by the jeep after the incident. -One important and relevant factor, which has been noticed by the trial court and the High Court, is that the jeep was kept in starting position.- The accused persons surrounded the deceased and prevented those who wanted to go to rescue the deceased by threatening them with dire consequences. - No infirmity in the conclusion of the courts below about the applicability of Section 149 Indian Penal Code. ( Para 12 )

B. Indian Penal Code, Section 149 - Common object of unlawful assembly- 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 such 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 7 )

C Indian Penal Code S. 149 - Section 149 consists of two parts-First part of the section means that the offence to be commit ted in prosecution of the common object must be one which is committed with a view to accomplish the common object. - 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.( Para 9 )

D.. Indian Penal Code, Section 149 - 'Common object' and 'common intention' - 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. -It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. -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. 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. ( Para 8 )

E. Criminal Procedure Code, Section 154 - Indian Procedure code, Section 302 - Delay in sending FIR to Magistrate - FIR reached Magistrate after 25 hours of occurrence - It cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the concerned magistrate, the prosecution version becomes unreliable. - The investigation was taken up immediately -Therefore, the plea that there was no FIR in existence at the relevant time has no substance-Additionally, no question was asked to the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn. ( Para 13 )

G. Indian Penal Code, Sections 302, 149 and 148 - Absence of specific overt act by each of them - A group of assailants who were members of the unlawful assembly proceeds to commit the crime in pursuance of the common object of that assembly-It is often not possible for witnesses to describe the actual part played by each one of them and when several persons armed with weapons assault the intended victim, all of them may not take part in the actual assault. - It was not necessary for the prosecution to establish as to the specific overt act was done by each accused. ( Para 17 )