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PETITIONER: LALJI & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT17/01/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR  754            1989 SCR  (1) 130  1989 SCC  (1) 437        JT 1989 (1)   109  1989 SCALE  (1)77

ACT: Indian Penal Code 1860: Sections 141, 149/302. Unlawful Assembly--What is--Common object--Ascertainment of.     Distinct  offence created by section 149---Imposes  con- structive or vicarious criminal liability--Offence committed in prosecution of common object--Corroboration as to partic- ipation  of  individual members  of  unlawful  assembly--Not necessary--Prosecution is not obliged to prove overt Act  of each member.     Criminal Trial: Court cannot afford to be charitable  in undeserving  cases--Essentiality  for  peace  and  order  in society.

HEADNOTE:     The four appellants along with seven other accused  were tried  under Sections 147, 148 and 302 read with 149 of  the Indian  Penal  Code.  The trial Court  convicted  the  eight accused,  including  the  four  appellants,  under   section 302/149  I.P.C.  and awarded life  imprisonment.  Appellants Nos.  1, 2 & 4 were also convicted under Section 147  I.P.C. and  each  awarded one years R.I. Appellant No. 3  was  also convicted  under  Section 148 I.P.C. and awarded  two  years R.I. The remaining three accused were acquitted by the Trial Court  for  want of corroboration. On appeal  by  the  eight convicted  persons the High Court upheld the  conviction  of only  four  appellants  on all the counts  and  allowed  the appeal  of the other four co-accused for want of  corrobora- tion.     In  this appeal by special leave it was  contended  that appellants No. 3 and 4 should also be acquitted for want  of corroboration as the Trial Court has acquitted three accused and  the High Court, on appeal, has further  acquitted  four accused for want of corroboration.     The appeal was contested on behalf of the State contend- ing  that in case of conviction under section 302 read  with section 149 of the I.P.C. corroboration in case of individu- al accused was not necessary and there 131 was enough corroboration on record to prove that the accused were members of the unlawful assembly at the time of commis-

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sion of offence. Dismissing the appeal,     HELD:  1.  Section 149 creates a specific  and  distinct offence.  It  imposes  constructive  or  vicarious  criminal liability  of the members of the unlawful assembly  for  the unlawful acts committed pursuant to the common object by any other member of the assembly. [135B]     1.1.  It  is not necessary that all persons  forming  an unlawful assembly must do some overt acts. The 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 acts and active partic- ipation may indicate common intention of the persons  perpe- trating the crime, the mere presence in the unlawful  assem- bly  may fasten vicarious criminal liability under the  sec- tion. The basis of the constructive guilt under section  149 is mere membership of the unlawful assembly, with  requisite common object or knowledge. [135E-F]     1.2.  The two essentials of the section are the  commis- sion 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. The  common object of the assembly must be one of  the  five objects  mentioned in section 141 of the Indian Penal  Code. [134G-H]     2.  In an appeal by the persons convicted under  section 302 with the aid of section 149 I.P.C. the question  whether a particular person was a member of the unlawful assembly at the  relevant time may be examined; and if it is found  from the  evidence  on  record that he was not a  member  of  the unlawful assembly, he could not be convicted with the aid of section 149. [136F-G]      2.1.  But  once the Court holds  that  certain  accused persons  formed an unlawful assembly and an offence is  com- mitted 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 that offence  was  a member of the same assembly is  to  be  held guilty of that offence. After such a finding it is not  open to the 132 Court  to see as to who actually did the offensive act.  The prosecution is not obliged to prove which specific overt act was done by which of the accused. [135G-H; 136A]     2.2. From the evidence on record it has been satisfacto- rily established that appellants No. 3 and 4 were members of the unlawful assembly at the relevant time. Both the  Courts below  have held them to have been members of  the  unlawful assembly.  The fact that they were not  active  participants and  whether any specific injury could individually  be  at- tributed to them or not are not at all material. [136D-E]     2.3. In the instant case the High Court having held that the appellants formed an unlawful assembly carrying  danger- ous weapons with the common object of resorting to  violence and committed an offence punishable with the aid of  Section 149  I.P.C. erred in acquitting some of the members  on  the ground that they themselves did not perform any violent  act or  that there was no corroboration of their  participation. Doing  so  would amount to forgetting the  very  nature  and essence of the offence created by Section 149. [136B-D]     2.4  The Court in undeserving cases cannot afford to  be charitable  in the administration of criminal justice  which is so vital for peace and order in the society. [136D]

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 227 of 1983.     From  the  Judgment  and Order dated  19.8.1982  of  the Allahabad High Court in Crl. Appeal No. 680 of 1976. R.L. Kohli and Shakil Ahmed Syed for the Appellants. Prithvi Raj and Dalveer Bhandari for the Respondent. The Judgment of the Court was delivered by     K.N. SAIKIA, J. This appeal by special leave is from the judgment  of  the High Court of judicature at  Allahabad  in Criminal Appeal No. 680 of 1976 dismissing the appeal of the four  instant  appellants namely, Lalji, Mansa,  Milkhi  and Bhagwati and upholding their conviction and sentence of life imprisonment under Sections 302/149 and also the  conviction of Milkhi with sentence of two years R.I. under section  148 I.P.C  and of the other three appellants under  Section  147 I.P.C. with sentence of one year R.I. 133     The facts are simple. On 24.6.1975 at noon Manju, son of Girdhaft Lal, man-handled Chhotey Lal and Mansa, nephews  of Minister Lal, after they gave him (Manju) a push. The prose- cution  version was that Minister Lal with a cane  in  hand, Chhotey Lal with a Kanta, Milkhi and Chainu with spears  and others  with  lathis arrived near Girdhaft Lal’s  house  and after an altercation started assaulting Girdhaft and Siddhu.     The alarm attracted Ram Avtar and Manju who came  there. The appellants party started assaulting them also  whereupon they retreated to their house but were followed by  Minister Lal, Lalji and others of the party. Girdhaft Lal and  Siddhu died in consequence of the assault. Ram Avtar picked up  the loaded gun of his father Girdhaft and fired a shot at Minis- ter  Lal who fell down dead and by another shot  he  injured Lalji.     The  defence  version  was that  Girdhaft  Lal  summoned Minister Lal to his house and the accused persons came  with or  after  Minister Lal. This resulted in a  cross  case  on Lalji’s  F.I.R. (Ex. Ka-19). It has admittedly  resulted  in acquittal.     The present case was registered under F.I.R. (Ex.  Ka-l) upon  the  information lodged by Babu Ram son of  Siddhu  at P.S.  Maigalganj. Altogether eleven persons,  including  the appellants  herein  faced  trial. The  learned  trial  court relying on the evidence of the three eye witnesses convicted eight and acquitted three of them, namely, Ram Lotan,  Kripa Dayal  and Barkau. The eight convicted persons  were  appel- lants  before the High Court in Criminal Appeal No.  680  of 1976. Out of them conviction of four appellants was  upheld, while the other four, namely, Shiv Kumar, Chottey Lal, Munna and Chainu were acquitted by the High Court.     The  learned counsel for the appellants Mr. R.L.  Kohli, Sr. Advocate submits that as out of the eleven persons three were acquitted by the trial court and four were acquitted by the High Court as there was no corroboration in their cases, the  position of two of the appellants, namely,  Milkhi  and Bhagwati  remains the same and they must also  be  similarly acquitted for want of corroboration.     The  learned counsel for the State Mr. Prithvi Raj,  Sr. Advocate  counters submitting that when the appellants  have been  convicted under section 302/149 I.P.C the question  of corroboration  in  case of individual appellants  would  not arise; and there is enough corrobora- 134

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tion in the evidence including medical evidence on record to prove  that they were members of the unlawful assembly  when the offence was committed.     The  precise  question  to be decided  in  this  appeal, therefore,  is whether in view of death caused  to  Girdhaft and  Siddhu  by the unlawful assembly  which  is  punishable under  section  302 with the aid of Section 149  I.P.C.  the corroboration as to participation of each individual  member of  the assembly would be necessary, and if so,  whether  in the instant case there is such corroboration..     Section  149 I.P.C. provides that if an offence is  com- mitted by any member of an unlawful assembly in  prosecution of  the common object of that assembly, or such as the  mem- bers  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 is a member of the same assembly, is  guilty of that offence. As has been defined  in  Section 141 I.P.C., an assembly of five or more persons is designat- ed  an  ’Unlawful  Assembly’, if the common  object  of  the persons  composing  that assembly is to do any act  or  acts stated in clauses ’First’, ’Second’, ’Third’, ’Fourth’,  and ’Fifth’ of that section. 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  assem- bly  intentionally joins that assembly, or continues in  it, is said to be a member of an unlawful assembly. Thus,  when- ever  so many as five or more persons meet together to  sup- port  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 carrying  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  firm- ness and courage. The two essentials of the section are  the commission of an offence by any member of an unlawful assem- bly and that such offence must have been committed in prose- cution 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, 135 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 vicar- ious  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  fails within  the ingredients of the section the question that  he did  nothing  with  his own hands would  be  immaterial.  He

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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  mem- bers  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 specif- ic 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  in 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 136 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.     In  the instant case after having held that  the  appel- lants formed an unlawful assembly carrying dangerous weapons with  the  common object of resorting to  violence  (as  de- scribed in the charge) it was not open to the High Court  to acquit  some  of the members on the ground that  they  them- selves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed  an offence  punishable with the aid of section 149 I.P.C.,  the High Court erred in examining which of the members only  did actively participate and in acquitting those who,  according to the Court, did not so participate. Doing so would  amount to  forgetting  the very nature and essence of  the  offence created by section 149 I.P.C The Court in undeserving  cases cannot  afford  to be charitable in  the  administration  of criminal  justice which is so vital for peace and  order  in the society.     On the basis of the evidence on record Milkhi and  Bhag- wati’s  membership of the unlawful assembly at the  relevant time  has been satisfactorily established. Both  the  courts below having held them to have been members of the  unlawful assembly,  the mere fact that they were not active  partici- pants, would be of no avail. It is not open to the court  to scrutinise as to whether any member of the unlawful assembly actively participated.     In an appeal by persons convicted under Section 302 with the  aid  of 149 I.P.C., the question whether  a  particular person  was a member of that unlawful assembly at the  rele- vant time may of course be examined; and if it is found from

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the  evidence  on  record that he was not a  member  of  the unlawful assembly, he could not be convicted with the aid of section  149. The question to be examined by us in  the  in- stant  case is whether Milkhi and Bhagwati were  members  of the  unlawful assembly at the relevant time and not  whether there was enough corroboration for their individual partici- pation in the commission of the offence.     It  has  not been denied that the names  of  Milkhi  and Bhagwati  were  mentioned in the F.I.R. (Ex. Ka-l).  P.W.  2 Manju son of Girdhari, whose presence at the place of occur- rence has not been challenged, mentioned Milkhi and Bhagwati among the accused persons with their relationship. He  cate- gorically stated that the two, amongst others, 137 were  present at his house beating his father and uncle  and chasing  him  and Ram Avtar. Milkhi according to him  had  a spear  in his hand. Manju denied the suggestion that  Milkhi and Bhagwati were standing there on the side of the witness- es.  P.W.  3  Smt. Ram Devi  clearly  corroborated  Milkhi’s participation.  P.W. 1 Babu Ram while giving vivid  descrip- tion  of the occurrence stated that Milkhi was there in  the assembly  with spear and Bhagwati with a lathi and that  all the  persons present beat Girdhaft and Siddhu.  Milkhi  also assisted  in  carrying Minister Lal after he  was  shot.  In reply to the question who beat Manju he clearly stated  that Mansa and Bhagwati beat him with lathi when he was  entering the  house.  D.W.  2 Lalji stated that at the  time  of  the occurrence  Puran, Bhagwati, Kripal etc. had also  come.  In the  F.I.R.  (Ex.  Ka-19/C.I) lodged by Lalji  on  the  same occurrence  presence of Milkhi and Bhagwati was admitted  by him. The submission that they were mere spectators could not be believed.     From  the above evidence on record it could not be  held that  Milkhi and Bhagwati were not members of  the  unlawful assembly  at  the the relevant time.  Whether  any  specific injury could individually be attributed to them or not could not  at  all  be material. The submission that  the  two  be acquitted on ground of lack of corroboration has, therefore, to be rejected.     In  the  facts and circumstances of the case it  is  not open to this Court to apply the reasoning of the High  Court to  acquit  members  of the unlawful assembly  for  lack  of corroboration as to their participation. No other submission was made for the other appellants.     In  the result, we do not find any merit in this  appeal and hence it is dismissed.     Appellant Mansa is on bail. He shall surrender to  serve out his sentence. T.N.A.                                  Appeal dismissed. 138