(64) In another recent case of Susanta Das v. State of Orissa, (2016) 4 SCC 371 Hon'ble the Apex Court has dealt with the provisions of Section 149 IPC and held that it has to be necessarily shown that there was an assembly of five or more persons forming an unlawful assembly. When once such an participation of five or more persons is shown who indulge in an offence as a member of such an assembly, for the purpose of invoking section 149 IPC, it is not necessary that there must be specific overt act played by each of the member of such an unlawful assembly in the commission of an offence. What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly such person knew as to what is likely to be committed in prosecution of any such common object. Hon'ble the Apex Court has further placed reliance upon Ajit Savant Majagvai versus State of Karnataka (1997) 7 SCC 110. Hon'ble the Apex Court further approved and relied upon Rajendran versus State of Tamil Nadu (2004) 10 SCC 689 and Bishna versus State of West Bengal (2005) 12 SCC 657.

(65) In the Susanta Das case (supra) the facts of the case were that on 3.4.1996 at about 4:00 PM PW-8 and 11 alongwith deceased Padma Lochan Jena was attacked by accused who were five in number, each of them armed with deadly weapon. Learned trial court convicted the accused Ashok Das for offence punishable under section 302 IPC but acquitted the other accused on the ground that no clinching evidence was found to support the individual role played by each of the accused. On appeal High Court reversed the finding of acquittal and sentenced the four accused who were acquitted by the trial court. On appeal Hon'ble the Apex Court had dismissed the appeal holding that all the accused were liable for conviction with the aid of Section 149 as participation of all the accused in the offence was established.

(66) In the present case in the first information report PW-1 Naseem has named all the accused armed with firearms in the first information report. In the evidence also PW-1 Naseem and PW-2 Nisar, who were also injured in the incident, named all the accused and assigned them the role of firing. As has been held in the earlier part of the judgment defence version of self defence has failed, prosecution has successfully established the specific role of all the accused who have formed an unlawful assembly at the place of occurrence. It is proved by the evidence of PW-1 Naseem and PW-2 Nisar that accused have formed unlawful assembly near the place of occurrence. They all were present there. When the deceased Dunna came he was assaulted by the firearms by the accused in furtherance of the common object of the unlawful assembly.

(67) Hence, we are of the considered view that the learned trial court has rightly held the accused guilty for the offence of committing murder of Dunna and causing injuries to Naseem and Nisar. Prosecution has successfully proved the charges against the accused appellants.

(68) We are of the considered view that appeals are devoid of merit and are liable to be dismissed and are accordingly dismissed. Impugned judgment and order of conviction and sentence is confirmed. Accused appellants are in jail. They shall serve out the sentence as imposed by the learned trial court.

(69) Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith.

JUDGMENT :

(Per Hon'ble Anil Kumar Srivastava-II,J.)

(1) Since the above two appeals have arisen from the same judgment, hence, both of them have been heard together and are being decided by this common judgment and order.

(2) The aforementioned two appeals have been preferred against the judgment and order dated 3.11.2014 passed by learned Additional Sessions Judge, Court No.4, Sitapur in Sessions Trial No.653/99 arising out of Case Crime No.136 of 1999 under Sections 147,148,149

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