2006 Supreme(SC) 20

2006(1) Supreme 22
Supreme Court of India
(From Jharkhand High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Rabindra Mahto & Anr. —Appellants
versus
State of Jharkhand —Respondent
Criminal Appeal No. 588 of 2005
With
Criminal Appeal No. 589 of 2005
With
Criminal Appeal No. 31 of 2006
(Arising out of SLP (Crl.) No. 2218 of 2005)
Decided on 6-1-2006
Counsel for the Parties :
For the Appellants : D.N. Goburdhan, Advocate, Ms. C.K. Sucharita, A.C., Manish Mohan, B.M. Prasad, Ms. Amrita Mohan, U. Shanker and Ugra Shankar Prasad Advocates.
For the Respondent : Anil Kumar Jha, Advocate.
For the Informant : S.B. Upadhyay, Advocate (N.P).

Important point
There need not be prior meeting of minds for a common object of an unlawful assembly and an unlawful object could develop after the assembly gathered and members acted as an assembly to achieve that object.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 302/149—Appellants armed with tangi, lathi, farsa and sword came to spot where prosecution had plowed a field—They assaulted prosecution party questioning how they had plowed the field which accused claimed to be their ownership—Two persons of prosecution party died as a result of injuries and other two were injured—Prosecution examined four eye witnesses—Three accused who had assaulted deceased with tangi, sword and farsa were convicted u/s 302 IPC and other accused who assaulted deceased with lathis were held guilty u/s 302 r/ws 149 IPC—Appeal—Sustainability of conviction by Section 149 IPC—Common object of unlawful assembly need not require prior concert and a common meeting of minds before attack—It would be enough that members of assembly had common object and they acted as an assembly to achieve that object—Mere presence in unlawful assembly could not render a person liable unless there was a common object which was shared by that person—Appellants came to assert their right in the land and intention to assert that right by force was apparent—Nature of injuries found on deceased gave indication of a common intent of assembly to go to extent of causing death of persons who plowed the land—Conviction by invoking Section 149 IPC called for no interference.

       Held : The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. Under Section 149, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case. From the facts found in the present case it appears that the appellants claimed ownership of the land in question, when they came to know that the deceased and their men plowed the land which they claimed to be their, they armed with weapons came to the place of incident to vindicate their right to the land by show of force or use of force. The intention to assert the right by force is apparent from the fact that the appellants were armed with deadly weapons such as sword, tangi and farsa and some of them were carrying lathis. All the persons came together at the spot armed with weapons and immediately after reaching the spot, after short exchange of words, they started assault and caused grievous injuries to two persons who died on the spot. It is alleged that the two eye witnesses namely PW-5 and PW-9 have also been assaulted. The nature of the injuries found on the deceased gives clear indication of a common intent of the assembly to go to the extent of causing death of the persons who have plowed their land. All the members reaching to the spot together armed with weapons and immediate attack on the persons present there clearly exhibits the intention of the unlawful assembly. In the facts and circumstances of the case we can safely infer the common object of the unlawful assembly to do away with the deceased persons. We have been taken through the evidence and cross-examination of the witnesses by learned counsel for the appellants. We do not find any reason to disbelieve the version of these witnesses which found approval of two courts. (Paras 12 and 13)

       (ii) Indian Penal Code, 1860—Section 302/149—Conviction of appellants under—Appeal—Delay in lodging FIR and copy reaching Magistrate—Simply because there was a delay in lodging FIR or sending it to the Magistrate forthwith, entire prosecution case could not be discarded—Reliable evidence and its veracity could not be dislodged by delay in recording FIR and delay in sending it to Magistrate which could be taken to be an infirmity in investigation. (Paras 18 and 19)