IMPORTANT POINT
The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.

Headnote:Indian Penal Code,1860-Section 302 read with Section 149- Prosecution of six accused persons for having formed themselves into an unlawful assembly and as a common object of that unlawful assembly, having committed murder of deceased by indiscriminately firing at him -Conviction by Trial Court-Appeals –Dismissed by High Court-Appeals- The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly- A-1 who was elder in the family and father of A-2, A-4 and A-3, instead of acting in a responsible manner and preventing any unpleasant incident, exhorted accused persons to bring gun- The guns are normally not brought for making a show- The exhortation to bring gun definitely spoke about guilty mind of A-1 so also the use of guns by A-4, A-5 and A-6 -Hence, at least insofar as these persons were concerned, their presence and their active participation would make them guilty under Section 149 IPC, though author of injury to deceased was A-3 whose appeal had already been dismissed- However, that could not be said about A-2- He had been given the role of standing in the door of his house with a lathi- Evidence of eye-witnesses that he was instigating other accused persons to fire, appeared to be an exaggeration- He would not have kept on standing there holding a lathi had he shared the intention and the common object of committing murder of deceased- Role of A-2, as attributed to by eye-witnesses, not made him vicariously liable- A2 held entitled to benefit of doubt and acquittal-There being no dispute about formation of unlawful assembly and its common object All - appeals dismissed excepting that of A2 (Paras 7 to 10)
       Facts of the Case :
        Six accused persons were prosecuted herein in the instant case for having formed themselves into an unlawful assembly and as a common object of that unlawful assembly, having committed murder of deceased by indiscriminately firing at him. Trial Court convicted accused persons for said fffences. Appeals thereagainst was Dismissed by High Court.
        2. Present Appeals have been filed against said order of High Court.
       Findings of the Court :
        The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly. A-1 who was elder in the family and father of A-2, A-4 and A-3, instead of acting in a responsible manner and preventing any unpleasant incident, exhorted the accused persons to bring the gun. The guns are normally not brought for making a show. The exhortation to bring the gun definitely spoke about the guilty mind of A-1 so also the use of guns by A-4, A-5 and A-6 was very clear that they also had guilty mind-A-4 went to the extent of injuring PW-7.Therefore, even their presence and part played by them was obviously pointing towards the common object of committing murder of deceased.Hence, at least insofar as these persons were concerned, their presence and their active participation would make them guilty under Section 149 IPC, though the author of the injury to deceased was A-3 whose appeal had already been dismissed. However, that could not be said about A-2. He had been given the role of standing in the door of his house with a lathi. Evidence of eye-witnesses that he was instigating the other accused persons to fire, appeared to be an exaggeration. He would not have kept on standing there holding a lathi had he shared the intention and the common object of committing murder of deceased. Role of A-2, as attributed to by the eye-witnesses, would not make him vicariously liable. A2 held entitled to benefit of doubt and acquittal.There being no dispute about formation of unlawful assembly and its common object all appeals dismissed excepting that of A2.

JUDGMENT

V.S. Sirpurkar, J. —

1. This judgment will dispose of Criminal Appeal Nos. 1516 and 1517 of 2004. Five accused persons have filed these appeals, they being Amerika Rai (original accused No. 1), Darbesh Rai (original accused No. 2), Mithilesh Rai (original accused No. 4), Sanjay Rai (original accused No. 5) and Sipahi Rai (original accused No. 6). The appeal of Chulhan Rai (original accused No. 3) is already dismissed. Six accused persons came to be tried for having formed themselves into an unlawful assembly and as a common object of that unlawful assembly, having committed murder of one Shankar Rai. Some of the accused persons were also charged with the offences under the Arms Act. All the accused persons were convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code (IPC), while Chulhan Rai (A-3) was convicted for substantive offence punishable under Section 302 and for offence punishable under Section 27 of the Arms Act. Again, Mithilesh Rai (A-4) was also convicted for the offence punishable under Section 307 IPC in addition to the offences punishable under Section 27 of the Arms Act and Section 302 read with Section 149 IPC. He was booked for that offence on the allegation that he had fired at and injured one Dineshwar Rai (PW-7). The appeals of all the accused persons were dismissed by Patna High Court and that is how the accused persons are before us in the present appeals.

2. The prosecution story is in the short conspectus. This is a cruel murder of a young bridegroom Shankar Rai who was married only a day before. He was put to death virtually without any reason. As per the prosecution story, his marriage was held at village Ishupur, Police Station Lalganj, District Vaishali. All the accused persons appear to be either relations or neighbours of deceased Shankar Rai. They all had joined the bridegroom party and were present at the time of marriage. It is alleged that at the time of function of “Dwarpuja”, there was some altercation in between the members of bride party on one side and bridegroom’s on the other. It is alleged that the brother of the informant Dineshwar Rai was assaulted by the members of the bride party and in retaliation, the informant also attacked some members of the bride side. Further, when one of the accused persons Sanjay Rai (A-5) was going back to Janmasa (the place where the bridegroom’s party stays during the marriage), he was assaulted by some boys of the village. However, the marriage was solemnized. The party of the bridegroom returned to their village alongwith bride, and alongwith them, the brother-in-law of the bride accompanied as per the custom. On the next day, at about 11’o clock in the morning, when the said brother-in-law, namely, Ram Babu (PW-6) was going for rest after taking meals, the accused persons, namely, Amerika Rai (A-1), Darbesh Rai (A-2), Chulhan Rai (A-3), Mithilesh Rai (A-4), Sanjay Rai (A-5) and Sipahi Rai (A-6) assaulted him with fists and slaps. When this was objected to, a quarrel ensued. At that very time, Amerika Rai (A-1) exhorted and as a result, Chulhan Rai (A-3) brought a licensed gun and fired 6/7 rounds at Shankar Rai. He fell down injured. In the meantime, Mithilesh Rai (A-4) fired 3/4 rounds from his gun causing injury to Dineshwar Rai (PW-7) who was none else but the brother of Shankar Rai (deceased). He suffered injuries to his hand, abdomen and thigh. At this time, Sanjay Rai (A-5) and Sipahi Rai (A-6) also opened fire from their pistols. Darbesh Rai (A-2) was present with a lathi. Injured Shankar Rai was removed to the State dispensary, Parsa, where he died during his treatment. Dineshwar Rai (PW-7) was also treated. The incident, having taken place in the broad day light, was witnessed by number of persons including the villagers. Dineshwar Rai (PW-7) reported the matter on 26.6.1995 at 4.15 pm to the Officer-in-charge of Dariyapur Police Station. This was done in the State dispensary. FIR was

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2011 Supreme(SC) 218

2011 (2) Supreme 162SUPREME COURT OF INDIAV.S. Sirpurkar and Anil R. Dave, JJ.Amerika Rai & Ors. — AppellantsversusState of Bihar — RespondentCriminal Appeal Nos. 1516-1517 of 2004Decided on : 23-2-2011

IMPORTANT POINT The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.

2011 (2) Supreme 162
SUPREME COURT OF INDIA
V.S. Sirpurkar and Anil R. Dave, JJ.
Amerika Rai & Ors. — Appellants
versus
State of Bihar — Respondent
Criminal Appeal Nos. 1516-1517 of 2004
Decided on : 23-2-2011

IMPORTANT POINT
The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.