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CASE NO.: Appeal (crl.)  241 of 1998

PETITIONER: Chanda and Ors.

RESPONDENT: State of U.P. & Anr.

DATE OF JUDGMENT: 29/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T   

ARIJIT PASAYAT,J

       Conviction of the accused-appellant was altered by  the Division Bench of the Allahabad High Court from  Section 302 read with Section 149 to Section 304 Part I  read with Section 149 of the Indian Penal Code 1860 (in  short ’IPC’). Life imprisonment as awarded by the Trial  Court was altered to 10 years imprisonment for the  altered conviction under Section 304 Part I IPC.  The  Trial Court had not awarded any separate sentence for  the other offences.   

Background facts alleged by the prosecution leading  to the trial are essentially as follows:

Hashim Khan (PW-1) lodged an FIR at about 1330  hours on 3.10.1977 in which the time of incident was  stated to be 1300 hours on the same day.  Distance of  place of incident from police station was about one  mile.  As per FIR, PW-1, the complainant is the resident  of village Lodhipur. The accused Chanda fired a shot at  his uncle in the year 1975, a case was registered  against him and that case was pending.  Second time, in  the year 1976, Sayeed and accused Chanda fired a shot on  Qasim, the brother of the complainant.  This case was  about to be proceeded for trial in the Court.  Accordingly, there was an old enmity between Qasim  (hereinafter referred to as ’deceased’) and the accused.  Because of this enmity on 3.10.1977 at about 1.00 p.m.,  when deceased was coming back from Shahjahanpur city to  his native village Lodhipur, near the Check post at  Lodhipur accused-Chanda and his brothers accused Zakir  and Shakir sons of Shujat Ali and Abbas son of  Jameeluddin, Hameeduddin head of the village (Mukhia),  Zaheer Shah son of Ghafoor (of the same village) and  Nanneh alias Ishaq son of Ishtiayaq who is the brother- in-law of Chanda were standing there.  Accused Sartaj  and Chanda were holding country made pistol in their  hands.  Accused Zaheer exhorted and asked others to take  Qasim, and he should not escape.  Thereupon deceased  Qasim raised alarm and ran towards the city. All of a  sudden, Chanda fired a shot at him, which did not hit

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him. Thereafter, all the accused persons chased deceased  Qasim, and after some distance accused Zakir, Shakir,  Nanneh, Abbas and others caught hold of deceased and  Sartaj fired a shot at him from a close distance due to  which he fell down on the road.  This incident was  witnessed by complainant (PW-1), Naim (PW-2) and Sajid  Ali of the same village and by-passers that sight  persons after shooting the gun went away towards  Lodhipur. The complainant came to police station by  putting Qasim on a Rickshaw in the injured condition.   The deceased breathed his last on 11.1.1978. He prayed  for the registration of the case and for appropriate  action.                        

       On completion of investigation charge sheet was  placed. To substantiate its accusations 8 witnesses were  examined including PW-1 Hashim Khan, Naim (PW-2) and  Samiulla (PW-3) who claimed to be eye witnesses.   Accused persons pleaded innocence and stated that they  were falsely implicated due to enmity.  

After considering the evidence on record the Trial  Court found that there was mistake in describing the  father’s name of accused Sartaj. Accused-Zakir was  acquitted because he was a crippled person and in the  dying declaration of the deceased no role was ascribed  to him. Similar was the position so far as accused  Hameeduddin is concerned.

       In appeal, the High Court altered the conviction so  far as the accused persons who were found guilty by the  Trial Court to Section 304 Part I IPC read with Section  149. Custodial sentence of 10 years was imposed.   Conviction in terms of Section 307 read with Section 149  was maintained.   

       Mr. U.R. Lalit, learned senior counsel appearing  for the appellants submitted that since Sartaj who is  supposed to have fired the gunshot he has been  acquitted, Section 149 cannot have any application.   Though the alleged occurrence took place on 3.10.1977,  the deceased died on 11.1.1978.  In all nine injuries  were found at the time of post-mortem though at the  first instance one injury was noticed on his back.  It  is not known as to what happened in between.  According  to the medical evidence, the death was on account of  septicemia. Other injuries could have also attributed to  septicemia. It is not possible to arrive at a  conclusion, as injuries were difficult to be identified.   From the nature of the injury attributed to be the fatal  shot, it cannot be said that there was any intention or  knowledge about the injury.  Therefore, Section 302 has  been rightly taken out as inapplicable. Consequently the  case is out of the scope of Section 299 and, therefore,  Section 304 Part I cannot have any application.  There  is no concrete evidence to show that the accused persons  were the members of the unlawful assembly which had any  common object.  Eight persons were named and it is not a  case of the prosecution that any other person committed  the murder. The definite case was that Sartaj accused  had fired fatal shot. That being so, after his acquittal  Section 149 cannot be applied and the Trial Court and  the High Court have lost sight of this fact. The  deceased was first taken to one hospital for treatment  and subsequently taken to another hospital and finally

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post-mortem was conducted after his death in the third  hospital. What type of treatments were given and what  was the effect of different injuries has not been  established by the prosecution.  Definite roles have not  been attributed to the accused persons. It was,  therefore, submitted that Courts below were not  justified in holding accused persons guilty.   

       Learned counsel for the State submitted that Sartaj  was not acquitted on the ground that he has not fired a  shot.  The acquittal was on the ground of mistake in the  father’s name.  The evidence also shows that Chanda had  fired a shot which did not hit the deceased. Therefore,  clearly common object was killing of the deceased.   Apart from that other accused persons restrained the  deceased to facilitate the killing.  Pellets were found  inside the body as clearly noted by the doctor.

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 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

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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 behaviour 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  eo instante.

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 behaviour at or before or after the  scene of occurrence. The word ’knew’ used in the second  limb of 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

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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 part of the  offences committed in prosecution of the common object  would also be generally, if not always, within the  second part, namely, offences which the parties knew to  be likely committed in the prosecution of the common  object. (See Chikkarange Gowda and others v. State of  Mysore  AIR 1956 SC 731).         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 and Ors. v. State of U.P. (AIR 1965 SC 202)  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.  Appreciation  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.

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State of U.P. (1989 (1) SCC 437). It was observed that:          

"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  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. (1997 (3)  SCC 747) 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’s case (supra) 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".  It  is not really necessary to determine as to which of the  accused persons forming part of the unlawful assembly  inflicted what particular or specific injury in the  course of the occurrence.  That the number of actually  convicted persons are less than five or that the case  projected certain one or more named persons as having  inflicted the injury but the same  could not vis-a-vis  that person actually be proved to have actually  committed it or that such persons came to be acquitted  for some reason or other peculiar to him does not in any  manner prejudice the case of the prosecution or the  liability of others who formed the unlawful assembly to  be convicted for having carried out the object by merely  being the members of the unlawful assembly, as long as  the participation of others in furtherance of the common  object of the unlawful assembly remained sufficiently  substantiated.

       The medical evidence is that death was the result  of vertebral injury. The prosecution has established  that the injury was on account of firing.  Therefore, it  is not correct as contended by learned counsel for the  appellant that the death was due to septicemia and  cannot in any manner be attributed to the gunshot which  turned out to be fatal.  It is significant that on post- mortem three pellets were found on cutting open the  wound over the lower part of left leg.  The medical  evidence fits in with the ocular evidence.  The physical  consequences of the gunshot as noticed on post-mortem  when read with ocular evidence leaves no manner of doubt  about application of Section 304 Part I IPC. The  evidentiary effect of the fire-shot fired by accused  Chanda which missed the deceased has been clearly  established. The evidence on record clearly establishes  that there was an unlawful assembly whose common object  was to kill the deceased. That being so, acquittal of  accused Sartaj does not wipe out application of Section  149 IPC.  The second part of Section 149 IPC clearly has  application to the facts of the case.      

       It cannot, therefore, be said that the prosecution  has failed to establish its accusations so far as  accused persons are concerned. We find no merit in this  appeal which is accordingly dismissed.          

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