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CASE NO.: Appeal (crl.)  371-372 of 2003

PETITIONER: Ram Dular Rai & Ors.                                     

RESPONDENT: State of Bihar                                           

DATE OF JUDGMENT: 27/11/2003     DORAISWAMY RAJU & ARIJIT PASAYAT.

J U D G M E N T

ARIJIT PASAYAT,J

       The appellant No.1 (Ram Dular Rai) faced trial for the commission  of offences punishable under Sections 302 and 307 of the Indian Penal  Code, 1860 (for short the ’IPC’). The other appellants were tried for  offences relatable to Section 302 read with Section 149 IPC and Section  307 read with Section 149 IPC. Each of the appellants was also tried for  commission of offence punishable under Section 148 IPC and Section 27 of  the Arms Act, 1959 (in short the ’Arms Act’). They were found guilty and  sentenced to undergo imprisonment for life for the offence relatable to  Section 302 or Section 302 read with Section 149 IPC, as the case may  be. Appellant No.1 was further sentenced to undergo imprisonment for 10  years for the offence relatable to Section 307 IPC and other three  appellants were sentenced to five years imprisonment for the offence  relatable to Section 307 read with Section 149 IPC. Each of them were  sentenced to undergo imprisonment for three years for the offence  relatable to Section 148 IPC and Section 27 of the Arms Act. In appeal  by the impugned judgment, appeal of the appellant Ram Dular Rai was  dismissed. In respect of other appellants, conviction for offences  relatable to Section 307 read with Section 149 IPC was set aside. The  background facts leading to the trial is as follows:

       The informant Baleshwar Nath Singh (PW-6) in his fardbayan  recorded on 17.3.1988 at about 1.05 a.m. stated that he was sleeping in  the night on the Dalan of the house where a lantern and a dhibri were  burning giving sufficient light in the Dalan. He was sleeping at the  eastern extreme on a cot and near him his son Kamla Singh, daughter of  Kamla Singh, Renu Devi (PW-2), were also sleeping. Other members of the  family were sleeping inside the rooms. At about 12.30 a.m. the accused- appellants each armed with double barrel gun came to the Dalan along  with ten to eleven other persons and standing outside the Dalan, were  also armed with guns. On being asked by the informant about their  identity, appellant Lalu Rai scolded him and placed his gun on his  chest. Accused-appellant Ram Dular Rai fired three times on his son  Kamla Singh (hereinafter referred to as the ’deceased’) grievously  injuring him, whereafter accused fired on Renu Devi, injuring her.  Thereafter all the assailants fled away. Other members of the family and  co-villager Jai Narain Singh (PW-3) also had seen the occurrence. Kamla  Singh died due to the injuries soon thereafter. According to the  informant, the reason for the assaults was that they had been opposing  one Madho Singh since the election of Mukhiya of their Panchayat, for  which reason the assailants had committed the offence.  

       The accused persons denied their alleged role in the alleged  occurrence claiming that they have been falsely implicated. Accused- appellant Lallan Rai in his examination under Section 313 of the Code of  Criminal Procedure, 1973 (for short the ’Code’) claimed that he was not

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even present, for which he placed reliance on medical certificate. One  witness was also examined as DW-1. The said witness Narain Chaupal was a  constable who was deputed for the security for accused-appellant Ram  Dular Rai after a dacoity was allegedly committed in his house. The  witness (DW-1) claimed that on hearing gunshots he had called appellant- Ram Dular Rai and his brother Lal Mohar Rai and at his call they came  out from their house. In essence, the stand was that since they were at  their residence at that time, they could not have committed the alleged  offence. Prosecution examined 13 witnesses, out of whom Renu Devi (PW-2)  is an injured witness and the informant was PW-6. There were two other  eye-witnesses namely Ramji Singh and Jai Narain Singh (PWs 1 and 3  respectively). Placing reliance on their evidence, the trial Court  convicted the appellants as noted supra.  

In appeal, as noted supra a Division Bench of the Patna High Court  upheld the conviction of accused-appellant Ram Dular Rai while allowing  the appeals of other three appellants before it. The conviction under  Section 307/149 IPC was set aside and rest of the convictions were  upheld. The High Court held that the accused persons, all armed with  guns had come to Dalan. Ram Dular Rai fired at the deceased in  furtherance of a common object and, therefore, the others were to be  convicted under Section 302 read with Section 149 IPC. However, the  assault on Renu Devi (PW-2) was a separate offence by Ram Dular Rai and  there was no common object involved.  

       In support of the appeals, learned counsel for the accused- appellants submitted that in view of the admitted animosity the evidence  does not inspire confidence. There was nothing to bring in application  of Section 149 IPC. Accused-appellants 2 to 4 did not make any attempt  to enter into the house and did not commit any overt act. Only one  witness (PW-6) has stated that all the persons came together. In view of  the acquittal of appellants 2 to 4 in respect of accusations under  Section 307 read with Section 149 IPC, Renu Devi (PW-2) ceased to be an  injured witness and only evidence was that of the informant (PW-6). The  so- called eyewitnesses could not have identified the persons as  claimed. There was no scope for recognizing any of the accused. A person  lying on a bed immobilized could not have made any recognition. As the  other witnesses were beyond doors they could not have seen who was  coming and who was going and, therefore, their evidence should be  discarded. In any event, the number of accused persons does not exceed  five and merely because some people were claimed to be unidentified  persons they were only introduced to bring in application of Section 149  IPC.  If Section 149 IPC is kept out then Section 34 IPC can be pressed  into service and for that there must be a participation. There is no  evidence of any participation or showing sharing of common object. The  evidence of DW-1 has not been duly considered as his evidence clearly  rules out the presence of accused appellants Ram Dular Rai and Lal Mohar  Rai. Even if for the sake of arguments it is accepted that there was  definite role attributed to accused appellants 1 and 4, that is not  sufficient to rope in others. The presence of any dhibri or lantern as  stated has not been established. The prosecution has introduced these  two articles to make identification possible. The FIR was ante dated as  has been clearly noted by the trial Court; but the reason given by the  investigating officer has been accepted; which should not have been  done.   

In response, learned counsel for the State submitted that the  evidence of DW-1 does not in any way rule out presence of the accused  appellants 1 and 4. The High Court has analysed the evidence in detail  as the evidence of eyewitnesses was categorized to be of partisan  nature. The High Court has held that the witnesses were natural  witnesses. The conviction and consequentially the sentences imposed are  well merited and do not deserve any interference.

       Coming to the question whether Section 149 has application when

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presence of more than five persons is established, but only four are  identified, Section 149 does not require that all the five persons must  be identified. What is required to be established is the presence of  five persons with a common intention of doing an act. If that is  established merely because the other persons present are not identified  that does not in any way affect applicability of Section 149 IPC.

Another plea which was emphasized 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 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

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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 behaviour at or before or after the scene of incident.  The word  ’knew’ used in the second branch 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 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, but 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 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

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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. 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".                  In the present case the evidence of eye-witnesses which has been  analysed in great detail by both the trial Court and the High Court  shows that though four appellants were specifically identified, other  persons carrying weapons were present along with the appellants at the  time and place of occurrence. That being so, Section 149 has been  rightly applied.                   One of the pleas raised with emphasis related to the evidence of  DW-1. On a closer reading of his evidence it is clear that the same does  not in any way improbabilises the presence of the appellants at the time  of occurrence. He only has stated that on hearing his call, appellants 1  and 4 came near him. The place of occurrence and the place of residence  of A-1 are in close proximity. The possibility, as has been highlighted  by the trial Court and the High Court, of the aforesaid two accused  appellants coming to their respective place of residence after  committing the offence cannot be ruled out and is not physical  impracticability or impossibility. In respect of appellant Lallan Rai it  is submitted that he did not fire the gun. Nothing has been shown about  his intention or to show that the deceased was the target. This plea is  clearly untenable because when some persons came with guns and their  actions preceding and succeeding the assault indicate the existence of a  common intention to do an act as stipulated in Section 149, the  liability under Section 149 is clearly attracted. The eyewitnesses to  the occurrence as held by the trial Court and the High Court are natural  witnesses and their presence at the spot of occurrence or nearby is  quite normal. Nothing suspicious has been indicated as to why their  evidence which stood firm in spite of incisive cross-examination is to  be discarded on the hypothesis that they are inimical to the accused  persons. Looked at from any angle the judgment of the High Court does  not warrant any interference and the appeals fail and are dismissed.    

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+ 5 4075-4081 1998 ! Nair Service Society                             Vs. Dist. Officer, Kerala Public Ser. Comm. And Ors.         @                                        November 17, 2003.

BENCH: S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The mode and manner of selection and method of appointment to the  post of Sub-Engineer (Civil) in the Kerala State Electricity Board as  also the terms and conditions thereof indisputably are governed by  Kerala State and Subordinate Service Rules, 1958 (’the Rules’).  The  Rules also provide for reservation being  governed by Rules 14 to 17  thereof.  Rule 14(c) provides for the manner in which the order of  rotation shall be worked out.  In terms of Rule 15, it is provided that  if a suitable candidate is not available for selection from any  particular community or group of communities specified in the Annexure,  the said community or group shall be passed over and the post shall be  filled up by a suitable candidate from the community or group of  communities immediately next to the passed over community or group in  the said Annexure, as the case may be, in the order of rotation.  In the  Annexure appended to Rule 15 for direct recruitment to the posts other  than those included in the Kerala Last Grade Service, a 100 point roster  is given.  Once, however, the benefit of the turn in terms of Rule 15 is  forfeited to a particular community or a group of community having been  passed over, the same shall be restored to it at the earliest possible  opportunity, if a suitable candidate from the particular community or  group is available for selection upon making adjustment therefor against  the claims of that community or group, as the case may be.  The proviso  appended to the said Rule in no uncertain terms restricts reservation  including carrying forward vacancy to a category of posts in the year of  recruitment in question not exceeding 50% of the total number of  vacancies.   

By reason of a note appended to Rule 15, it is provided that for  purposes of application of the proviso to Rule 15 limiting the number of  vacancies to be reserved in a year as 50 per cent in respect of a  category of post, the period of one year shall commence on and from the  day on which the ranked list of candidates prepared by the Commission in  respect of that post comes into force.  The matter relating to  reservation is governed thereunder and the Public Service Commission was  under a statutory duty to follow the principles laid down in the said  rules.   

The Public Service Commission of the State of Kerala framed the  Kerala Public Service Commission Rules of Procedure which is non- statutory in nature.  Rule 2(g) of the said Rules defined "Ranked List"  as:

"Ranked List" means list of candidates arranged  in the order of merit, either on the basis of  the interview or examination or by both;

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       Rule 4 of the said Rules which is material for the purpose of  determining the issues raised in this matter reads thus:          

"Where a written examination and/ or a practical  test is conducted by the Commission for  recruitment to a service or post, the Commission  shall -  

(i)     announce: (a)     the qualifications required of  the candidates for the  examination, (b)     the conditions of admission to  the examination including the  fees, (c)     the subjects, scheme or syllabus  of the examination, and (d)     the number of vacancies to be  filled from among the candidates  for the examination;

       Provided that where the exact number of  vacancies to be filled is not ascertainable, the  Commission may either announce the approximate  number of vacancies to be filled or state that  the number of vacancies has not been estimated.

(ii)    invite applications and consider all  the applications so received, (iii)   make all arrangements for the  conduct of the examination for the  candidates whose applications are  found to be in order, and (iv)    prepare a list in the order of merit  of such number of candidates as the  Commission may determine from time  to time;

       Provided that the Commission may also  prepare separate ranked lists in the order of  merit of candidates coming under separate groups  in accordance with the qualifications or other  conditions as stipulated in the notification;

       Provided further that for the purpose of  satisfying the rules of reservation of  appointment to Scheduled Castes, Scheduled  Tribes and other Backward Classes also the  Commission may prepare such supplementary lists  as found necessary from time to time in the  order of merit of the candidates belonging to  such classes."

       Relevant part of Rules 12 and 13 of the said Rules read as under:

"12. All the candidates interviewed and who  obtained not less than the minimum marks fixed  by the commission shall be included in the

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ranked list prepared in the order of merit;

       Provided where the candidates have been  called for interview for the purpose of  satisfying the rules of reservation alone such  candidates who have got not less than the  prescribed minimum marks in the interview shall  be included in the supplementary list or lists  arranged in the order of merit among the  candidates belonging to each class;

       Provided further that the Commission may  also prepare list or lists of such categories of  candidates who have got not less than the  prescribed minimum marks in the interview and  who are entitled to priority according to the  terms of the notification inviting applications;   

Provided further that the Commission may  also prepare lists of overaged candidates who  have secured not less than the prescribed  minimum marks in the interview and who are  eligible to be considered for appointment in the  absence of candidates who conform to the rules  regarding age limits...

13. The ranked lists published by the Commission  shall remain in force for a period one year from  the date on which it was brought into force  provided that the said list will continue to be  in force till the publication of a new list  after the expiry of the minimum period of one  year or till the expiry of three years whichever  is earlier...;"

       The Kerala Public Service Commission under a misconception  prepared a supplementary list only in relation to the reserved category  of candidates and  did not prepare such list in terms of the open  category candidates. A bare perusal of the two provisos appended to both  Rules 4 and 12 clearly show that two separate ranked lists were required  to be prepared, one for the open category candidates and another for the  reserved category candidates.  The purport and object of preparing such  separate ranked lists is absolutely clear and unambiguous.  Such lists  should be in the nature of waiting list so that the vacancies arising  during the period when such list is prepared till the publication of a  new list as envisaged in Rule 13 can be filled up.  In other words, in  terms of the aforementioned rules what was required to  prepare was a  main list - a separate ranked list for open category candidates as also  a supplementary list for the purpose of satisfying the rules of  reservation of appointment of reserved category candidates.  Non- Statutory Rules framed by the Commission must be read in such a manner  which would fulfill the reservation criteria contained in the Statutory  Rules.

       Preparation of only one supplementary list for filling up the  vacancies by the some candidates not joining their posts, only from the  reserved category of candidates, therefore, would be illegal, as thereby  the relevant provision relating to the percentage of reservation  contained in Rule 15 of the statutory rule would stand infringed.  

       Both the lists viz for the open category of candidates as  also  the reserved category of candidates were necessary,  

thus, required to be prepared in  terms  of the said Rules for

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maintaining the ratio of 50-50.          The respondents herein filed a writ petition before the High Court  for giving effect to the said purported supplementary list wherein the  following prayers were made:

"(i) to issue a writ of mandamus or any other  appropriate writ order or direction commanding  the 1st respondent to advice candidates against  the non-joining duty vacancies of Muslim  candidates advised on 20.8.1994 from Ext. P1  list and also to such vacancies of candidates,  advised on 21.12.1994.

(ii) to direct the 2nd respondent to report non- joining duty among 89 candidates advised from  Ext. P1 list on 21.12.1994."

       The High Court by reason of the impugned judgment granted the said  prayer inter alia holding that the rule of reservation is not affected  as the vacancies created by reason of non-joining of the posts belonging  to open category candidates may be filled up in the later year.  The  hardship created to one category of candidates in terms of Rule 13 had  not been considered by the High Court inasmuch as such vacancies may not  be filled up for a period of three years.  Furthermore, by reason  thereof, the reservation policy of the State as contained in the Kerala  State and Subordinate Service Rules, 1958 has been violated.  This Court  in a large number of decisions has clearly held that for the purpose of  making the reservation policy a reasonable one the extent thereof should  not exceed 50% save in exceptional situation.  The statutory rules also  contain such a prohibition.    Article 16(4B)of the Constitution of  India is also a pointer to the said fact in terms whereof an enabling  provision has been created whereby and whereunder the State may consider  to fill up the unfilled vacancies of a year which are reserved for being  filled up in that year in accordance with the provisions made under  Clause (4) or (4A) as a separate class of vacancies to be filled up in  any succeeding year or years and such class of vacancies shall not be  considered together with the vacancies of the year in which they are  being filled up for determining the ceiling of 50% reservation on total  number of that year.  

       The judgment of the High Court, if implemented, would thus be  violative of Article 16(4B) of the Constitution as also the statutory  rules.

       The High Court, therefore, committed an illegality in passing the  impugned judgment insofar as it failed to take into consideration that  in the event the same is given effect to, more than 50% of the vacancies  in a particular year will be filled up from amongst the reserved  category candidates.  We, however, having regard to the facts and  circumstances of the case do not intend to set aside the appointments  made in favour of the private respondents herein only on the ground that  the judgment of the High Court has been acted upon.

       For the reasons aforementioned, I agree that the appeal shall be  allowed to the extent as directed by my learned Brother Dr. Lakshmanan,  J. in his judgment.