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CASE NO.: Appeal (crl.)  822-825 of 2001

PETITIONER: State of Punjab

RESPONDENT: Sanjiv Kumar @ Sanju and Ors

DATE OF JUDGMENT: 14/06/2007

BENCH: Dr. ARIJIT PASAYAT & B.P. SINGH

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      The State of Punjab is in appeal against the judgment of  Punjab and Haryana High Court. While upholding the  conviction of two accused persons, namely, Vishal and Anil  Kumar, High Court directed acquittal of the respondents.  In  case of co-accused Gangadhar, conviction was altered to  Section 324 of the Indian Penal Code, 1860 (in short the \021IPC\022).   In all, 9 persons faced trial and the Trial Court had found each  to be guilty of offences punishable under Sections 302, 323  read with Section 149 IPC.

2.      Seven appeals were filed by eight of accused persons. As  noted above, the High Court directed acquittal of the  respondents while disposing of the appeal of Vishal and Anil  and altered the conviction of Gangadhar.         

3.      The background facts in a nutshell are as follows:            The accused persons had gone for a pleasure trip to  Manali in the year 1994. They had some joint photographs.  These photographs were in possession of accused Anil Kumar  alias Babba. There was some dispute regarding the delivery of  these photographs. The complainant side wanted to have the  photographs while Babba did not want to part with those  photographs. However, on 16.6.1995, around 9/8.OO P.M. the  accused persons, namely, Sanjiv Kumar alias Sanju, Satnam  Singh alias Satta, Parminder Singh alias Khalsa, Ganga Dhar,  Vishal Sharma, Gurpreet Singh Bedi, Sanjiv Kumar and Anil  Kumar alias Babba and Amit Kumar assembled near the  S.T.D. booth of Satnam Singh alias Satta in the area of  Krishna Nagar, Hoshiarpur, Harbans Lal questioned as to  what was the problem in returning the photographs. Due to  that an altercation took place in Gali No. 14, Kamlapur and as  a result of that Sanjiv Kumar alias Sanju and Satnam Singh  alias Satta raised a lalkara that Harbans Lal and his  companions should be caught hold of and the matter should  be finished once for all. Anil Kumar alias Babba gave a Kirpan  blow on the flank of Harbans Lal and Vishal Sharma gave a  Kirpan blow on the chest of Rakesh Kumar alias Gori. Both of  them fell down on the ground. Rajinder Kumar PW.5 and Raj  Kumar alias Raju PW.6 raised an alarm. Still Ganga Dhar gave  two Kirpan blows on the left side of the forehead and right  thigh of Rajinder Kumar; Gurpreet Singh Bedi gave a hockey  blow on the left side of the ear of Rajinder Kumar. Parminder  Singh alias Khalsa and the owner of Judge S.T.D. and others

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boys surrounded them and then Raju and Rajinder Kumar  raised alarm again. Upon this Anil Kumar alias Babba and his  companions ran away from the scene of occurrence. Injured  Harbans Lal succumbed to the injuries at the spot and Rakesh  Kumar in the hospital, the same day. On the basis of  information lodged, investigation was undertaken and on  completion thereof charge-sheet was filed.  The trial Court  found the accused persons guilty, convicted and sentenced  them as aforesaid.            4.      The High Court found that no definite role was ascribed  to the respondents, and there was no evidence on record with  regard to the sharing of common object by the respondents.          5.       Learned counsel for the appellant-State submitted that  presence of acquitted respondents has been accepted both by  the Trial Court and the High Court. That being so, their  conviction under Section 149 was clearly in order and the  High Court should not have interfered with the same.        6.      There is no appearance on behalf of the respondents in  spite of service of notice.       7.       As noted above, the High Court noted that the  prosecution has not even remotely established applicability of  Section 149 IPC.    

8.      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 \021object\022 means the purpose  or design and, in order to make it \021common\022, 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  \021in prosecution of common object\022 as appearing in Section 149  have to be strictly construed as equivalent to \021in order to attain  the common object\022. 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

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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.

9.      \021Common object\022 is different from a \021common intention\022  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 \021common object\022  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.       10.     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 culled out, it may reasonably be  collected as noted above from the nature of the assembly,  arms carried and behaviour at or before or after the scene of  occurrence. The word \021knew\022 used in the second limb of the  section implies something more than a possibility and it  cannot be made to bear the sense of \021might have been known\022.  Positive knowledge is necessary. When an offence is  committed in prosecution of the common object, it would

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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).          11.     A 4-Judge\022s Bench of this Court in Masalti and Ors. v.  State of U.P. (AIR 1965 SC 202) observed as follows:                  \023Then 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.\024

        12.     To similar effect is the observation in Lalji v. State of U.P.  (1989 (1) SCC 437). It was observed that:          

\023Common 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

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deduced from the facts and circumstances of  each case.\024                   13.     Above being the position in law on the background facts,  the High Court\022s judgment directing acquittal of the  respondent does not suffer from infirmity.       

14.     The appeals are dismissed.