Important Point
Mere presence in an unlawful assembly cannot render a person liable. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.The State of Punjab is in appeal against the judgment of Punjab and Haryana High Court. While upholding the conviction of two accused persons, namely, Vishal and Anil Kumar, High Court directed acquittal of the respondents. In case of co-accused Gangadhar, conviction was altered to Section 324 of the Indian Penal Code, 1860 (in short the IPC). In all, 9 persons faced trial and the Trial Court had found each to be guilty of offences punishable under Sections 302, 323 read with Section 149 IPC.

2.Seven appeals were filed by eight of accused persons. As noted above, the High Court directed acquittal of the respondents while disposing of the appeal of Vishal and Anil and altered the conviction of Gangadhar.

3.The background facts in a nutshell are as follows :

The accused persons had gone for a pleasure trip to Manali in the year 1994. They had some joint photographs. These photographs were in possession of accused Anil Kumar alias Babba. There was some dispute regarding the delivery of these photographs. The complainant side wanted to have the photographs while Babba did not want to part with those photographs. However, on 16.6.1995, around 9/8.OO P.M. the accused persons, namely, Sanjiv Kumar alias Sanju, Satnam Singh alias Satta, Parminder Singh alias Khalsa, Ganga Dhar, Vishal Sharma, Gurpreet Singh Bedi, Sanjiv Kumar and Anil Kumar alias Babba and Amit Kumar assembled near the S.T.D. booth of Satnam Singh alias Satta in the area of Krishna Nagar, Hoshiarpur, Harbans Lal questioned as to what was the problem in returning the photographs. Due to that an altercation took place in Gali No.14, Kamlapur and as a result of that Sanjiv Kumar alias Sanju and Satnam Singh alias Satta raised a lalkara that Harbans Lal and his companions should be caught hold of and the matter should be finished once for all. Anil Kumar alias Babba gave a Kirpan blow on the flank of Harbans Lal and Vishal Sharma gave a Kirpan blow on the chest of Rakesh Kumar alias Gori. Both of them fell down on the ground. Rajinder Kumar PW.5 and Raj Kumar alias Raju PW.6 raised an alarm. Still Ganga Dhar gave two Kirpan blows on the left side of the forehead and right thigh of Rajinder Kumar; Gurpreet Singh Bedi gave a hockey blow on the left side of the ear of Rajinder Kumar. Parminder Singh alias Khalsa and the owner of Judge S.T.D. and others boys surrounded them and then Raju and Rajinder Kumar raised alarm again. Upon this Anil Kumar alias Babba and his companions ran away from the scene of occurrence. Injured Harbans Lal succumbed to the injuries at the spot and Rakesh Kumar in the hospital, the same day. On the basis of information lodged, investigation was undertaken and on completion thereof charge-sheet was filed. The trial Court found the accused persons guilty, convicted and sentenced them as aforesaid.

4.The High Court found that no definite role was ascribed to the respondents, and there was no evidence on record with regard to the sharing of common object by the respondents.

5.Learned counsel for the appellant-State submitted that presence of acquitted respondents has been accepted both by the Trial Court and the High Court. That being so, their conviction under Section 149 was clearly in order and the High Court should not have interfered with the same.

6.There is no appearance on behalf of the respondents in spite of service of notice.

7.As noted above, the High Court noted that the prosecution has not even remotely established applicability of Section 149 IPC.

8.The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. 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 un