SHORT NOTE
ALLAHABAD HIGH COURT
Ritu Raj Awasthi and Virendra Kumar-II, JJ.
Meera @ Ashmeer and Ors. —Appellants
versus
State of U.P. —Respondent
Criminal Appeal No.1739 of 2007
Decided on 2.8.2019

IMPORTANT POINTS
(1) There is no bar in law on conviction of accused with aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit crime.
(2) When medical evidence makes ocular testimony improbable, that becomes a relevant factor in process of evaluation of evidence.

Headnote:

(A) Criminal Law—Appreciation of evidence—Position of law in cases where there is contradiction between medical evidence and ocular evidence can be crystallised to the effect that though ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes ocular testimony improbable, that becomes a relevant factor in process of evaluation of evidence—However, where medical evidence goes so far that it completely rules out all possibility of ocular evidence being true, ocular evidence may be disbelieved.

Held: Learned trial court recorded statement of PW-1 complainant Nazir Ali, PW-2 Ismile, PW-3 Bhinnu, PW-4 Dr. Amar Jeet Singh, PW-5 S.I. Shubhash Chandra Tewari, PW-6 Constable Ram Kumar Pal, PW-7 S.I. Prem Shankar Katiya, PW-8 Head Constable Virendra Kumar Pandey and PW-9 S.I. Jai Prakash Shukla. These witnesses have proved the aforesaid exhibits/documents Ex. Ka-1 to Ex. Ka-28 relied upon by the prosecution.

(B) Indian Penal Code, 1860—Sections 34 and 149—Common intention and common object—Distinction—‘Common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before attack—It is enough if each has same object in view and their number is five or more and that they act as an assembly to achieve that object—Common object’ of an assembly is to be ascertained from acts and language of members composing it, and from a consideration of all surrounding circumstances—It may be gathered from course of conduct adopted by members of assembly—For determination of common object of unlawful assembly, conduct of each of members of unlawful assembly, before and at the time of attack and thereafter, motive for crime, are some of relevant considerations—What common object of unlawful assembly is at a particular stage of incident is essentially a question of fact to be determined, keeping in view nature of assembly, arms carried by members, and behaviour of members at or near scene of incident—It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, same must be translated into action or be successful.

Held: On evaluation and analysation of evidence of PW-2 and PW-3 witnesses, we find their evidence credible, reliable, trustworthy and acceptable. Their presence at the place of occurrence cannot be doubted. PW-2 Ismile, along with witness Ram Gopal and the deceased Mohd. Shamin was riding on Motorcycle of the deceased and reached at culvert of “jhaver”, where the appellants met them in vicinity Rarri, while they were going from Shahjahanpur in village Alamnager. All the appellants were armed with country made pistols. They firstly shot fire on the deceased Mohd. Shamin targeting him from front of his motorcycle. The motorcycle fell down on the place of occurrence and PW-2 Ismile and witness Ram Gopal fled away from the place of occurrence. The deceased Shamin sustained firearm injury and expired on the place of occurrence. All the appellants were resident of Village Rautapur. PW-1 Nazir Ali, PW-2 Ismile are also resident of village Rautapur. The village Alamnager, in which, PW-3 Bhinnu resides, is also neighbouring village of Rautapur and place of occurrence is situated in vicinity of village Rarri.

(C) Indian Penal Code, 1860—Sections 147, 148, 302 read with Section 149—Arms Act, 1959—Sections 3/25—Murder and rioting—Common object of unlawful assembly—Life sentence—High Court, upon carrying the exercise of reappreciation of evidence, formed view that reasons for delay in recording statements of witnesses have been properly explained—There is no bar in law on conviction of accused with aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC—Absence of a charge under one or other or various heads of criminal liability for offence cannot be said to be by itself prejudicial to accused and before a conviction for substantive offence without a charge can be set aside, prejudice will have to be made out—To ascertain whether a particular person shared common object of unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object—Once it is demonstrated from all facts and circumstances of a given case that he shared common object of unlawful assembly in furtherance of which some offence was committed or he knew was likely to be committed by any other person, he would be guilty of that offence—Commission of an overt act by such a person would be one of tests to prove that he shared common object, but it is not the sole test—Injuries indicates that all appellants actively participated in gruesome and heinous crime of day light murder of deceased—Impugned judgment upheld—Appeal dismissed.

Held: It is also pertinent to mention here that on perusal of Site Plan, it reveal that the appellants were present on culvert of “Jhaver”, which is a deserted place. The locality of all the nearby villages were at a considerable distance ranging from 2.5 to 5 km. Therefore, no villager of the aforesaid villages was present on the place of occurrence at the point of time, when appellant surrounded the deceased and fired shots at him from their country made pistols as proved by PW-2 and PW-3. These witnesses have proved active participation of all the appellants in the incident of the present crime. On the other hand, unless Hon’ble Supreme Court interprets provisions of Section 149 I.P.C., otherwise the following exposition of law of Hon’ble Supreme Court holds field up to now, which are as follows:

Hon’ble Supreme Court in Case Masalti Vs. State of U.P. AIR 1965 SC 202 (coram : Four Hon’ble Judges) has held as under:

....Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

....What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s. 141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case 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 by s. 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin1956CriLJ345 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin 1956CriLJ345 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.

In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day. Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not supported by the principles of law enunciated by this Court in the case of Baladin1956CriLJ345 .

Hon’ble Supreme Court in Case Lalji and Ors. vs. State of U.P. (1989 )1SCC 437 has held as under:

....An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carry out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed’ Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined, It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

Thus, once the Court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

Hon’ble Supreme Court in Case Shaji and Ors. Vs. State of Kerala (2011) 5SCC 423 has held as under:

7. On the other hand, Mr. T.S.R. Venkata Ramana, learned Counsel appearing for the Respondent-State, by drawing our attention to the judgment of the Constitution Bench inMohan Singh and Anr. v. State of Punjab: AIR 1963 SC 174, submitted that even after acquittal of two accused, in order to bring home the charge under Section 149 Indian Penal Code , it is not necessary that five or more persons must necessarily be brought before the Court and convicted. The following principles laid down by the Constitution Bench are relevant for our consideration:

8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot be invoked against the Appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the Appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

9. In dealing with the question as to the applicability of Section 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the criminal courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted....

Hon’ble Supreme Court in Case Umesh Singh & Anr. Vs.State of Bihar (2000) 6SCC 89 has held as under:

Vicarious liability, we may state, as rightly contended for the State by Shri B.B. Singh relying upon the decisions of this Court in Shamshul Kanwar v. State of U.P. [1995]3SCR1197 and Bhajan Singh and Ors. v. State of U.P.1974CriLJ1029 , extends to members of the unlawful assembly only in respect of acts done in pursuance of the common object of the unlawful assembly or such offences as the members of the unlawful assembly are likely to commit in the execution of that common object. An accused whose case falls within the terms of Section 149 IPC as aforesaid cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined. It is not necessary in all cases that all the persons forming an unlawful assembly must do some overt act. Where the accused had assembled together, armed with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is not obliged to prove which specific overt act was done by which of the accused. Indeed the provisions of Section149 IPC, if properly analysed will make it clear that it takes an accused out of the region of abatement and makes him responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. We may also notice that under this provision, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. Tested on this touchstone, we may safely say that in the present case when the appellants were members of an unlawful assembly which was armed with lathis and guns and a declaration had been made that in the event there is any resistance to take away the paddy which is stated to have been the original object, they were willing to take life out of the deceased and take away the paddy. If that is the position, it is futile to contend for the appellants that their conviction is in any way bad.

Hon’ble Supreme Court in Case Bans Narain Singh and Ors. Vs. State of U.P. (1998) 9 SCC 3 has held as under:

....The arguments so far as the appellants whose conviction and sentence has been passed by the learned Sessions Judge and affirmed by the High Court is that the prosecution case must be held not to be proved beyond reasonable doubt, inasmuch as in respect of the 12 Army personnel found dead neither there has been any inquest nor has there been any post-mortem report and consequently the fact that homicidal death occurred has not been established. Further argument advanced was that even if it is held that the prosecution has been able to establish the 12 persons belonging to the Army forces died but there is no evidence to indicate that their death occurred on account of the shooting from the appellants and, therefore, the conviction of the appellants of the charge under Sections 302/149 cannot be sustained. It was also contended that so far as the appellant Shambhu Singh is concerned, on the admitted prosecution case that he was not there at the Quarter Guard when the firing started and came at a later stage he cannot be held to be a member of the unlawful assembly nor can he be held to have shared a common object particularly when the prosecution evidence is totally silent with regard to the overt act by the said Shambhu Singh.

....The High Court has indicated the fallacy of the reasonings advanced by the learned Sessions Judge in acquitting some of the accused persons by holding that “the trial court having held those accused persons were members of an unlawful assembly, they could not be exonerated under Sections 302/149 and 307/149”. On analysis of the evidence the High Court has come to the conclusion that those accused persons became the members of an unlawful assembly and had seen some of the members of that assembly to have equipped themselves with rifles and have been indiscriminately using them against the Army jawans. Some of the accused persons in fact were injured which establishes the fact of their being present at the place of occurrence and their presence is also otherwise established through the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of an unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns.

....The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with Section 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that the accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.

Hon’ble Supreme Court in Case Murali Vs. State of Tamilnadu AIR 2001 SC 413 has held as under:

..... A perusal of the facts, as appears from the decision makes it clear the circumstances under which the right of private defence is to be made applicable, unfortunately the same is not available on the contextual facts. The accused was found present at the Tea Stall being deceased’s place of business and as such can be termed to be an aggressor and as such question of there being any right of private defence does not arise. The definite evidence in the matter is that the accused opened the door with a blood stained knife. The nature of his injuries are not, however, sufficient by itself to sustain the plea of private defence. As a matter of fact both, learned Sessions Judge and the High Court have negatived such a plea and we do record our concurrence therewith. The injuries on the accused are rather minor in nature since they were restricted to tender diffusion and abrasion. There is no wound, much less any serious injury which may even prompt a person to take the most heinous step of committing the murder. Reliance was also placed on the decision in the case of Vijayan alias Vijayakumar v. State (represented by Inspector of Police) 1999CriLJ2037 wherein this Court on the facts of the matter in issue and evidence on record was inclined to give judicial imprimatur to the plea of right of private defence advanced by the appellant and held him not guilty and granted pardon.

Hon’ble Supreme Court in Case Abdul Sayeed Vs. State of Madhya Pradesh (2010) 10SCC 259 has held as under:

On the other hand, Shri C.D. Singh, learned Counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye-witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed.

In the instant case, a very large number of assailants attacked Chand Khan and Shabir (deceased), caused injuries with deadly weapons to them. The incident stood concluded within few minutes. Thus, it is natural that the exact version of the incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by the eye-witnesses.

There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of criminal Procedure, 1973. ( Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364; Malhu Yadav and Ors. v. State of Bihar (2002) 5 SCC 724; Dhaneswar Mahakud and Ors. v. State of Orissa ; and Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC 2661).

Hon’ble Supreme Court in Case Gurmail Singh Vs. State of Punjab and Anr. : (2013)4 SCC 228 has held as under:

....Section 149 of the Indian Penal Code constructively criminalizes all members of an unlawful assembly if a member of that assembly commits an offence in prosecution of a common object of that assembly or if the members of that assembly knew likely to be committed in prosecution of that object. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been committed by a member of the unlawful assembly. Thirdly, the offence committed must be in prosecution of a common object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be committed in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the Indian Penal Code will come into play and cover every member of the unlawful assembly.

Hon’ble Supreme Court in Case Madan Singh Vs.State of Bihar : reported in (2004)4SCC622 has held as under:

It cannot be laid down as a general proposition of law that unless the commission of 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. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means always necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage.

The expression ‘in prosecution of common object’ as appearing in Section149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may also vary on different members of the same assembly.

....When the factual scenario is considered in the background of the legal position enumerated above, the inevitable conclusion is that Section 149 has been rightly applied. The fact that the unlawful assembly’s common object was to resist the enforcement of law, and to commit criminal offences and to overawe the authorities/public servants by use and show of criminal force stood firmly established on the evidence on record. Consequently, the criminal acts committed in furtherance of the common object, which acts were not only part of the common object of the unlawful assembly but also such which the members of the assembly knew reasonably well are such as are likely to be committed squarely attract Section 149 I.P.C. Certain Salient factual aspects clearly establish prosecution version. Firstly, defence plea regarding alleged apprehended attack by higher caste people has been found to be of no substance. If really the accused persons had gathered for reaping singada as claimed, there was no reason for the call to be given to start shooting at the police and then actual firing. A person who apprehends attack from some other person would rather welcome the arrival of the police and bring to notice of the officials about the apprehended danger and not to start firing at the police officials knowing them to be police, with defiance adopting a violent posture. This itself is sufficient to discard the defence version about nature and object of assembly.

In the case of State of Maharashtra Vs. Kashirao and Ors. : reported in AIR 2003 SC 3901, Hon’ble Supreme Court has held as under:-

....A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the 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 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. The word ‘object’ means the purpose or design and, in order to make it ‘common’. it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section149, IPC may be different on different members of the same assembly.

‘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. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. 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 behavior 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. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot co-instanti.

....Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, 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. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word ‘knew’ used in the second branch f the section implies something more than a possibility and it cannot be made to bear the sense of ‘might have been known’. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikka range Gowda and Ors. v. State of Mysore1956CriLJ1365 ).

In the case of Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Mangal Pathak and Ors. reported in 1995 Supp (1) SCC 239, Hon’ble the Apex Court has held as under:-

....Now coming to the question of applicability of Sections 302/149 I.P.C., taking into consideration all the circumstances of the case we are firmly of the view that more than five persons participated in the occurrence. Therefore there is no difficulty in convicting A-2, A3 and A-8 under Sections 302/149 I.P.C.

....Accordingly we set aside the judgment of the High Court so far these three accused are concerned and convict A-2 Gurupada Pathak, A-3 Bidyadhar Pathak and A-8 Aswini Pathak under Sections 302/149 I.P.C. and sentence each of them to undergo imprisonment for life. Their conviction for the offence punishable under Section 148 I.P.C. and sentence of R.I. for one year and to pay a fine of Rs. 100/- in default of payment of which to undergo further R.I. for one month and the conviction of A-2 and A-3 under Sections 326/34 I.P.C. and sentence of R.I. for two years and to pay a fine of Rs. 500/- in default of payment of which to undergo further R.I. for six months, as awarded by the trial court, are restored. The other directions given by the trial court regarding disposal of the articles seized are upheld. In the result the appeal is allowed as against A-2, A-3 and A-8 and dismissed against other respondents-accused.

Hon’ble Supreme Court in Case State of Haryana Vs. Shakuntla and Ors. (2012)5SCC171 has held as under:

....On a proper appreciation of the evidence placed on record, it is clear that in the circumstances, one could hardly expect any other evidence to be available. It would only be the family members who would be present at the place of occurrence of the crime and only such interested persons could depose with regard to commission of the crime. The statements of these witnesses are trustworthy and offer the graphic eye account of the exact events, during the course of occurrence. Clearly, there was common object among the members of the unlawful assembly to somehow do away with Manohar Lal and his wife Sushila.

....It is a settled principle of the law of evidence that it is not the quantity, but the quality of evidence that has to be taken into consideration by the Court while deciding such matters. As already noticed, even in the year 1986, Rajender and Matadin had beaten Manohar Lal and his wife, for which they were also facing criminal trial. Again, they had abused and beaten Naresh, PW-4 on 3rd July, 1994, when he was putting earth in the street in front of his house. Thereafter, on 5th July, 1994, this unfortunate incident had taken place. When on 5th July, 1994, Manohar Lal and his wife returned from Delhi, even before they entered their house and when they were discussing the incident that took place on 3rd July, 1994 with their teenage children, the accused persons, armed with weapons, came there and started assaulting Manohar Lal and his wife. This clearly shows that Matadin and the other accused had been looking for an opportunity to fight with Manohar Lal and his family members, on one pretext or the other. Matadin exhorted the others to ‘finish them’, upon which the accused persons started assaulting the victims and continued till both Manohar Lal and his wife Sushila died. The circumstance deserving the attention of this Court is that, even when Manohar Lal fell on the ground as a result of a blow on his spine, still none of the accused person showed any mercy, they instead continued with the assault. The statements of Dr. G.S. Yadav, PW-1 and Dr. Kamal Mehra, PW2, and the post mortem reports of the deceased, Ext. PA and Ext. PC clearly demonstrate the intentional brutality and intent of the accused to kill the victims. They caused as many as 30 injuries on the person of Manohar Lal and 33 injuries on the person of Sushila, resulting in the death of both of them.

Both the deceased had tried to run away, but were chased by the accused. While Manohar Lal exhorted the others, all accused persons, particularly accused No. 7, Kailash, effectively participated in inflicting injuries on the bodies of the deceased. Thus, a common intention came into existence at the spur of the moment, even if the same was not pre-existing. The existence of common object and intent is not only reflected from the circumstantial evidence, but is also clearly demonstrated in the statement of PW-4 and PW-5, respectively. The offenders, if have no common intention or object to kill the victim, they would normally stop assaulting the victim and leave him in the injured condition when he falls down on the ground. On the contrary, in the case in hand, all the accused, except those acquitted by the High Court, had participated with a common mind to cause fatal injuries upon both Manohar Lal and Sushila. PW-4, in his statement, has clearly and definitely explained the occurrence, by attributing specific role to each one of the accused. According to him, Rajender inflicted Jaily blow on the legs of Manohar Lal. Matadin gave Jaily blow on the head of Manohar Lal, which the deceased deflected with his hands. Krishan gave Jaily blow on the back of Manohar Lal, whereafter the victim fell on the ground. Thereafter, Bhim inflicted Kasola blow on the head of the deceased Manohar Lal and finally, all the other accused started mercilessly inflicting blows on the person of the deceased Manohar Lal.

....In this regard, we may refer to the judgments of this Court, in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law. This Court, in the said judgment, held as under:

From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.

....Section 149 creates a specific offence and deals with punishment of the offence. The only thing is that whenever the court convicts any person or persons of any offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same Under Section 149.

Besides relying on para 40 of the judgment of this Court in Waman & others Vs. State of Maharashtra (2011) 7 SCC 295, reliance has also been placed on Sarman and Ors. v. State of M.P. 1993 Supp. (2) SCC 356 to argue that as all the Appellants were armed with lathis, it was not clear from the statements of witnesses as to which injury had been inflicted by which accused. All the members of the unlawful assembly cannot be charged with offences Under Sections 302read with 149, Indian Penal Code.

In the case of Ramchandran and Ors. v. State of Kerala (2011) 9 SCC 257, a Bench of this Court dealt, at some length, with the scope and object of Section149 Indian Penal Code. It was held that Section 149 Indian Penal Code essentially has two ingredients, one, that the offence must be committed by any member of unlawful assembly consisting of five or more members and second, such offence must be committed in prosecution of the common object Under Section 141Indian Penal Code of that assembly or such as the members of that assembly knew was likely to be committed in prosecution of the common object.Clarifying the expression “common object”, the Bench further said that it is not necessary that there should be a prior concert in the sense of a meeting of minds of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if it is then adopted by all the members and is shared by all of them.

In the case of Waman (supra), the Court also stated that in order to attract Section 149 Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. It must be within the knowledge of other members that the offence is likely to be committed in prosecution of the common object, and if such requirement is satisfied, then they would be held liable Under Section 149 Indian Penal Code.

It is not possible to define the constituents or dimensions of an offence Under Section 149 simplicitor with regard to dictionary meaning of the words ‘unlawful assembly’ or ‘assembly’. An “assembly” is a company of persons assembled together in a place, usually for a common purpose. This Court is concerned with an “unlawful assembly”. Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. The ingredients which need to be satisfied have already been spelt out unambiguously by us. Reverting back to the present case, it is clear that, as per the case of the prosecution, there were more than five persons assembled at the incident. All these nine persons were also convicted by the Trial Court and the conviction and sentence of six of them has been affirmed by the High Court. The members of this assembly had acted in furtherance to the common object and the same object was made absolutely clear by the words of accused Matadin, when he exhorted all the others to ‘finish’ the deceased persons.

In other words, the intention and object on the part of this group was clear. They had come with the express object of killing Manohar Lal and his family members. It might have been possible for one to say that they had come there not with the intention to commit murder, but only with the object of beating and abusing Manohar Lal and Ors. but in view of the manner in which Matadin exhorted all the others and the manner in which they acted thereafter, clearly establishes that their intention was not to inflict injuries simplicitor. Manohar Lal, admittedly, had fallen on the ground. However, the accused still continued inflicting heavy blows on him and kept on doing so till he breathed his last. They did not even spare his wife Sushila and inflicted as many as 33 injuries on her body. Where a person has the intention to cause injuries simplicitor to another, he/she would certainly not inflict 30/33 injuries on the different parts of the body of the victim, including the spine. The spine is a very delicate and vital part of the human body. It, along with the ribs protects all the vital organs of the body, the heart and lungs, etc. Powerful blows on these parts of the body can, in normal course, result in the death of a person, as has happened in the case before us. The way in which the crime has been committed reflects nothing but sheer brutality. The members of the assembly, therefore, were aware that their acts were going to result in the death of the deceased. Therefore, we find no merit in this contention of the accused also.

Hon’ble Supreme Court in Case State of M.P. Vs. Deshraj and Ors. 2004CriLJ1415, has held as under:

....Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab 1977CriLJ164 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

....The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34. In law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh1993CriLJ2246, Section34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

Hon’ble Supreme Court in Case Charan Singh and Ors. Vs. State of Uttar Pradesh (2004) 4 SCC 205, has held as under:

....The six appellants faced trial along with 18 others for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short ‘the IPC’). They were convicted by the Trial Court. For the offence relatable to Section 302 read with Section 149 IPC, life imprisonment was awarded; whereas for the offence relatable to Section 307read with Section 149 IPC imprisonment of 7 years was awarded. According to the prosecution, one Devi Charan (hereinafter referred to as the ‘deceased D-1’) lost his life on account of murderous assaults of the accused persons. Two other persons namely, Buddha and Shanti Devi (described hereinafter as deceased D-2 and D-3 respectively) lost their lives in the incident. All the 24 accused persons preferred appeal before the High Court. The High Court found that one accused named Shyamu was a juvenile and with reference to Section of the U.P. Children Act, 1951 his conviction was maintained, but he was extended the benefit of the said Act. Though one Ram Pal was named in the first information report, no charge sheet was submitted so far as he is concerned. One Narena died during the pendency of the appeal before the High Court and the appeal abated so far as he is concerned. Dealing with the case of other 22 accused persons, the High Court found that the appellants 10 to 23 were stated to be armed with lathies only. There was no sufficient material to bring home the accusations so far as they are concerned. Though one Raj Pal was also similarly placed, the High Court made a distinction holding that he being the son of Harkesh, the prime mover of the entire episode, it can be presumed that he may have had a motive to join the unlawful assembly with his father, brother and others. Though one Mahesh Chand was also stated to be holding a spear, he was also found to be not guilty on the logic of the other accused persons who were holding lathies. He was also given the benefit of doubt.

Coming to the others who were armed with double barrel guns and country made pistols, the question is regarding applicability of Section149 IPC. Section 149, IPC 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 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. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.

‘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. 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 behavior 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. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.

The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti v. State of U.P [1964]8SCR133 observed as follows:

“Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciated of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.”

To similar effect is the observation in Lalji v. State of U.P., 1989CriLJ850

“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

In State of U.P. v. Dan Singh and Ors.1997CriLJ1150 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji v. State of U.P 1989CriLJ850 where it was observed that “while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149”.

....When the factual scenario is analysed in the background of legal position highlighted above, the inevitable conclusion is that accused-appellants Charan Singh, Dev Dutt, Virender Kunwar Pal and Harkesh have been rightly convicted by application of Section 149 IPC. Their appeals are without merit and are dismissed. In the ultimate result, the appeal of accused-appellant Raj Pal is allowed while those of the other accused-appellants stand dismissed. Appellant Raj Pal shall be released from custody unless required in any other case.

Hon’ble Supreme Court in Case State of A.P. Vs. Thakkidiram Reddy & Ors. (1998) 6SCC 554, has held as under:

....It was also contended by Mr. Arunachalam mat since, admittedly, the injury inflicted by A1 caused the death of the deceased and the injuries inflicted by others on his person were simple in nature, it could not be conclusively said that A2 to A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with, the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. (emphasis supplied)

Lalji v. State of U.P.,1989CriLJ850 wherein it said :

....”The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct office. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused.This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.” (emphasis supplied)

....From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed - or he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.

The appellants have been convicted rightly and sentence awarded against them are adequate. The impugned judgment is liable to be upheld and it is upheld.

The appeal lacks merit, liable to be dismissed. Accordingly, dismissed.

Result: Appeal dismissed.