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CASE NO.: Appeal (crl.)  830 of 2005

PETITIONER: MOHINDER SINGH AND ORS.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 24/03/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

P.P. NAOLEKAR, J.

       The accused-appellants belong to Sakkanwali Village,  Police Station Sadar Muktsar, District Muktsar, Punjab.  The  deceased Harbans Singh was the neighbour of the  appellants.  There was a dispute on the demarcation of the  Shamlat land.  Some portion of this land is claimed by the  accused-appellants and some of the land was being claimed  by Harbans Singh, the deceased.  The Shamlat land has not  been demarcated nor a particular portion of the land was in  exclusive possession of either the appellants or the  complainant party.  As per the First Information Report  lodged by Harvinder Kaur at 10.30 P.M. on 23rd February,  1996, the prosecution story unfolded is, that on 23rd  February 1996 at about 5.30 P.M., the complainant  Harvinder Kaur (PW-1) along with Jasvinder Kaur (PW-2),  wife of Jaspal Singh, were making cow-dung cakes in the  Shalmat land.  Harbans Singh after providing fodder to the  cattle was talking to Jaspal Singh.  In the meantime,  Mohinder Singh (A-1) and Nasib Singh (A-3), armed with  licensed 12 bore double barrel guns, Naginder Singh (A-6)  armed with dang, Sukhdev Singh (A-5) armed with kassia,  Beant  Singh (A-2)  armed  with  kirpan and Nirbhai Singh  (A-4) armed with kassruli came to the spot.  Mohinder Singh  (A-1) raised lalkara that the complainant party be taught a  lesson for grabbing and making addition of the land of the  accused with that of the land of the complainant party.   Then Mohinder Singh fired shot from his licensed gun at  Harbans Singh, which hit him on the left side of the chest.   When the complainant (PW-1) ran towards her husband to  save him, Nasib Singh (A-3) fired a shot from his double  barrel 12 bore gun, which hit her on the ankle of left foot.   At that time Mohinder Singh fired another shot, which hit on  the interior side of the right thigh of Harbans Singh, the  deceased.  At the same time Naginder Singh (A-6) gave  dang blows to Jaspal Singh and Nasib Singh again fired shot  on the right leg of Jasvinder Kaur.  An alarm was raised  which attracted Gurbans Singh and Mander Singh sons of  Gurdev Singh, Pritam Singh and Gurmit Singh sons of Bhag  Singh, Madan Singh son of Avtar Singh and Mukhtiar Singh  son of Mehar Singh, residents of Sakkanwali Village.  When  they tried to intervene and rescue the members of the  complainant party, Mohinder Singh and Nasib Singh fired  shots at them hitting the right flank of Madan Singh and left  leg of Pritam Singh.  Similarly, Sukhdev Singh, Beant Singh  and Nirbhai Singh caused injuries to Mander Singh, Gurbans

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Singh, Mukhtiar Singh and Gurmit Singh.  After causing the  aforesaid injuries, all the accused ran away with their  respective weapons.  Thereafter, Gurmit Singh arranged for  the vehicle and took the injured to the Civil Hospital,  Muktsar.  However, Harbans Singh succumbed to his injuries  on his way to the hospital.  The remaining injured were got  admitted to the Civil Hospital at Muktsar.         The inquest report of the dead body of Harbans Singh  was prepared in the presence of Jaspal Singh and Mander  Singh.  The special report reached the Illaqa Magistrate at  5.00 A.M. on 24th February, 1996.  After the investigation  the accused persons were arrested and prosecuted.         Appellants Mohinder Singh, Sukhdev Singh and  Naginder Singh had taken the plea of alibi stating that on  the date of occurrence they along with Bachittar Singh and  Harmanjit Singh had gone to the village Jharriwala to see a  match for the grand daughter of Naginder Singh and had  returned late in the night.  As such they were not present on  the date at the place of occurrence and had been falsely  implicated by the complainant side.  The other appellants  while admitting the incident asserted that Harvinder Kaur  had given wrong version of the facts, in fact, Nasib Singh  was present at his house.  Nirbhai Singh and Beant Singh  came to know that Harbans Singh (deceased), Jaspal Singh  (PW-9), Gurdev Singh, Mander Singh armed with gandasas  along with some other persons were placing cow-dung cakes  in their plot/land to take forceful possession of the land and  when Nirbhai Singh and Beant Singh went to the spot to  make enquiries, the aforesaid persons attacked them and  caused injuries.  Nasib Singh, Gurmail Singh and Angrez  Singh intervened to save Nirbhai Singh and Beant Singh.   Gurmail Singh and Angrez Singh caused injuries to the  complainant’s side.  It was further asserted that in the  meanwhile, some other persons collected there and Nasib  Singh in self-defence of his property and person fired shots  which hit the complainant’s side. The prosecution has mainly based its case on the eye  witnesses’ account of the incident deposed by Harvinder  Kaur (PW-1), Jasvinder Kaur (PW-2), Jaspal Singh (PW-9)  and Pritam Singh (PW-10), the injured witnesses.  The post- mortem of the deceased Harbans Singh was conducted by  Dr. Kirandeep (PW-4) and she had found fire-arm injuries on  the person of the deceased.  In her opinion, the cause of  death was shock and haemorrhage as a result of injury to  pericardium and heart, which was sufficient to cause death  in the ordinary course of nature.  Dr. M.G. Sharma (PW-3)  had examined Mukhtiar Singh and Jaspal Singh.  On 23rd  February, 1996, Dr. Tarlochan Singh (PW-15) examined  Harvinder Kaur (PW-1), Gurmit Singh, Pritam Singh,  Jasvinder Kaur (PW-2) and Mander Singh.  The doctors  found the injuries on the person of the persons examined by  them.  Nirbhai Singh (A-4) and Beant Singh (A-2) were also  examined by Dr. APS Kochar (DW-1) who had found some  injuries on the person of  A-4 and A-2.  At the instance of  the accused Mohinder Singh and Nasib Singh, licensed guns  were recovered from their possession.  After appreciation of  the evidence on record, the trial court convicted all the  accused persons as under: (i) Mohinder  Singh Beant  Singh Nasib  Singh

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Nirbhai  Singh Sukhdev  Singh Naginder  Singh U/s  148 of  the  I.P.C. To undergo rigorous  imprisonment for a period of one  year, each. (ii) Mohinder  Singh U/s  302 of  the  I.P.C. To undergo rigorous  imprisonment for life and to pay  a fine of Rs. 10,000/- and in  default of payment of fine to  further undergo rigorous  imprisonment for a period of one  year for committing the murder  of Harbans Singh. (iii) Beant  Singh Nasib  Singh Nirbhai  Singh Sukhdev  Singh Naginder  Singh U/s  302  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for life and to pay  a fine of Rs. 10,000/- each and in  default of payment of fine to  further undergo rigorous  imprisonment for a period of one  year each for committing the  murder of Harbans Singh. (iv) Nasib  Singh Mohinder  Singh U/s  307  I.P.C. To undergo rigorous  imprisonment for a period of  seven years and to pay a fine of  Rs. 2000/- each, and in default of  payment of fine to further

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undergo rigorous imprisonment  for six months each, for  attempting to murder Harvinder  Kaur, Jasvinder Kaur, Modan  Singh & Pritam Singh by causing  gun shot injuries. (v) Beant  Singh Nirbhai  Singh Sukhdev  Singh Naginder  Singh U/s  307  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for a period of  seven years and to pay a fine of  Rs. 2000/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for six months, each for  attempting to murder Harvinder  Kaur, Jasvinder Singh, Modan  Singh and Pritam Singh by  causing fire arm injuries. (vi) Beant  Singh Sukhdev  Singh U/s  326  I.P.C. To undergo rigorous  imprisonment for a period of  three years and to pay a fine of  Rs. 1500/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 3 months each, for causing  grievous hurt to Gurbans Singh &  Mukhtiar Singh.  (vii) Mohinder  Singh Nasib  Singh Nirbhai  Singh Naginder  Singh U/s  326  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for a period of  three years and to pay a fine of

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Rs. 1500/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for three months, each for  causing grievous hurt to Gurbans  Singh and Mukhtiar Singh. (viii) Naginder  Singh Sukhdev  Singh U/s  325  I.P.C. To undergo rigorous  imprisonment for a period of two  years and to pay a fine of Rs.  1000/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 3 months, each for causing  grievous hurt with blunt weapon  to Jaspal Singh and Mukhtiar  Singh. (ix) Mohinder  Singh Nasib  Singh Nirbhai  Singh Beant  Singh U/s  325  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for a period of two  years and to pay a fine of Rs.  1000/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 3 months, each for causing  grievous hurt with blunt weapon  to Jaspal Singh and Mukhtiar  Singh. (x) Beant  Singh Sukhdev  Singh U/s  324  I.P.C. To undergo rigorous  imprisonment for a period of one  year and to pay a fine of Rs.  500/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for two months each for causing  simple hurt to Mander Singh &  Mukhtiar Singh.

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(xi) Mohinder  Singh Nasib  Singh Nirbhai  Singh Naginder  Singh U/s  324  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for a period of one  year and to pay a fine of Rs.  500/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 2 months, each for causing  simple hurt to Mander Singh &  Mukhtiar Singh. (xii) Naginder  Singh Beant  Singh Nirbhai  Singh Sukhdev  Singh U/s  323 of  I.P.C. To undergo rigorous  imprisonment for a period of six  months and to pay a fine of Rs.  200/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 15 days, each for causing  simple hurt to Jaspal Singh,  Mander Singh, Jasvinder Kaur,  Gurmit Singh & Mukhtiar Singh. (xiii) Mohinder  Singh Nasib  Singh U/s  323  r/w S.  149  I.P.C. To undergo rigorous  imprisonment for a period of six  months and to pay a fine of Rs.  200/- each and in default of  payment of fine to further  undergo rigorous imprisonment  for 15 days, each for causing  simple hurt to Jaspal Singh,  Mander Singh, Jasvinder Kaur,  Gurmit Singh & Mukhtiar Singh.

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The entire sentence was directed to run concurrently.   However, the period of detention already undergone by the  accused convicts during investigation or trial was directed to  be deducted from the period of their substantive sentences.         Aggrieved by the order of conviction and sentence an  appeal was preferred in the High Court of Punjab and  Haryana.  It was urged before the High Court that there was  a delay in lodging the FIR, which was lodged at 10.30 P.M.  whereas the alleged incident took place at 5.30 P.M. on 23rd  February, 1996 and the report to the Illaqa Magistrate had  reached at 5.00 A.M. on 24th February, 1996, which goes to  show that the complainant party had consumed time in  coining up a story of their choice in connivance with the  police.  That  non-explanation of the injuries on the person  of Beant Singh and Nirbhai Singh, dented the prosecution  case and because of non-explanation of the injuries by the  witnesses on the person of the accused, it can be inferred  that the complainant’s side was suppressing the genesis of  fight.  That there was a discrepancy between the eye- witnesses’ version and medical evidence.  That the plea of  alibi taken by Sukhdev Singh, Naginder Singh and Mohinder  Singh was proved by the defence and as such they could not  have been convicted.  It was lastly submitted that their  presence at the spot was not unnatural as the houses of the  appellants were adjoining to the place of occurrence and  unlawful assembly with a common object to commit the  murder of Harbans Singh and cause injuries to other  persons, cannot be inferred.  The High Court  recorded the  findings that in the circumstances of the case, merely  because there was some delay in lodging  the FIR, it cannot  be said that the prosecution had manufactured a story to  falsely implicate the appellants, particularly so when the  occurrence was admitted by the appellants, maybe  with the  denial of the presence of Mohinder Singh, Sukhdev Singh  and  Naginder Singh at the spot.  The so called delay would  at best call for more care and caution while scanning the  entire evidence so that there would not be chances of false  implication. The element of delay in registering the  complaint or sending the same to the jurisdictional  Magistrate by itself would not be fatal to the prosecution, if  the evidence adduced by the prosecution was worthy of  credence.  The High Court found the eye- witnesses’ version  credible and trustworthy.  As for non-explanation of the  injuries on the appellants  Beant Singh and Nirbhai Singh,  the High Court has found that there were no injuries on their  person by gandasa, which was claimed in defence.   According to the High Court, the injuries were superficial in  nature  except one on the person of Beant Singh which was  in the shape of diffused swelling and the doctor had opined  that there was no visible injury mark seen, which showed  that no injury was caused by the blunt side of the gandasa  otherwise it would have left some mark of violence.  The  effect of the non-explanation of the injuries on the person of  the accused had to be judged from the entire factual  position, and having done so, in view of the High Court, the  prosecution had not suppressed the genesis of fight.  The  High Court opined that the appellants in the shape of  aggressors formed an unlawful assembly causing the murder  of Harbans Singh and caused injuries to nine persons.  As  per the High Court, there was no discrepancy in the medical  evidence and the eye-witnesses’ account for the injuries  caused by the use of firearm.  The distance between the  assailants and the injured, as per the prosecution  witnesses

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was 7-8 karams, whereas according to the medical evidence  the shots fired were not from more than a distance of 4 ft.  from the muzzle end of the gun.  This is on account of  blackening around the wound. The High Court has held that  the witnesses are rustic villagers from whom accuracy about  the exact distance cannot be expected.  All the four injured  witnesses examined have categorically stated in one voice  that Mohinder Singh along with Nasib Singh armed with  licensed guns came and fired at Harbans Singh, the  deceased.  On perusal of the site plan, it is clear that the  place of occurrence is of very small in dimension.  Five  persons from the complainant’s side including the deceased  were present on the plot, whereas the other five persons,  who had received injuries, had also reached the spot after  hearing the commotion.  From the appellants’ side, six  persons entered the said plot.  Thus, in all 16 persons were  present at the time of incident and in such a situation it  would not be possible for the witnesses to make the correct  assessment of the distance, from where the shots were fired  and in these circumstances the gun fires and the resultant  injuries thereof, witnessed by the witnesses present and  injured, cannot be disbelieved. Coupled with the fact that  the licensed guns of the accused persons were recovered at  the instance of the accused and the user of the same being  confirmed by Forensic Science Lab, the witnesses’ version  cannot be disbelieved.  It was obvious that two guns had  been used in the occurrence.    The plea of alibi was disbelieved by the High Court on  the grounds that the onus to prove the same heavily rests  on the accused which they failed to discharge.  On these  findings, the High Court has reached an irresistible and  unequivocal conclusion that the appellants’ conviction as  recorded by the learned trial court on different counts  deserves to be upheld and accordingly the appeal was  dismissed. Aggrieved by the same, the present appeal by special  leave is preferred before us.  It may be mentioned that the  accused appellant Mohinder Singh has been released by the  State considering his age and his appeal is not being pressed  by the counsel for the appellant.  The other accused- appellant  Nasib Singh has been informed to have died, by  the counsel for the appellant and as such his appeal stands  abated.  Thus, we are considering the appeal as regards  Beant Singh, Nirbhai Singh, Sukhdev Singh and Naginder  Singh.   It is contended by the learned counsel for the  appellants that the prosecution has failed to explain the  injuries caused to Nirbhai Singh (A-4) and Beant Singh (A-2)  and, therefore, the prosecution has failed to establish the  genesis of offence.  The failure of the prosecution to offer  any explanation regarding the injuries found on the accused  would mean that the evidence led by the prosecution  relating to the incident is not true or at any rate is not  wholly true and thus reliance could not have been placed on  that evidence to convict the accused persons.  To prove the  fact that Beant Singh and Nirbhai Singh have received  injuries, the defence has examined Dr. APS. Kochar, District  T.B. Officer, Civil Surgeon Office, Faridkot.  The doctor  stated that he had examined Beant Singh at 10.30 P.M. on  23rd February, 1996 at Faridkot and found  four injuries on  his person.  The injuries were caused by a blunt weapon.  Injury No.4 was declared as simple.  On X-Ray examination  report, injury Nos. 1 and 2 were also found as simple in  nature and injury No.3 was grievous in nature.  On the same  day at 11.00 P.M., he examined Nirbhai Singh and found

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three injuries on his person.  Injury No.1 was caused by a  sharp weapon and rest of the injuries were caused by a  blunt weapon.  Injury Nos. 1 and 2 were simple and after  getting X-Ray examination report injury No.3 was found to  be grievous in nature.  On cross-examination, it was  admitted by him that he attached no X-Ray report on his  record.  Similarly X-Ray report and skiagraph report were  not on the judicial file.  Injury on the person of Beant Singh  could possibly be caused as a result of falling on the hard  surface.  Injury No.1 on the person of Nirbhai Singh could be  caused with the blade of a razor.  Injury No.2 could be  caused if the nail struck at a hard surface.  Injury No.3 on  the person of Nirbhai Singh could be caused by falling on the  hard surface.  From the evidence of (DW-1), it is apparent  that the injuries were simple in nature and the grievous  nature of injury could not be proved by the doctor by  producing the X-Rays and skiagraph, on the basis of which  he had formed the opinion of the grievous nature of the  injury on Beant Singh as well as on Nirbhai Singh.   In the case of Lakshmi Singh and Ors.  vs.  State of  Bihar (1976) 4 SCC 394, it is observed that any non- explanation of the injuries on the accused by the prosecution  may affect the prosecution case.  But such non-explanation  may assume greater importance where the evidence  consisted of interested or inimical witnesses or where the  defence gives a version which competes in probability  with  that of the prosecution.  But where the evidence is clear,  cogent and credit-worthy and where the Court can  distinguish the truth from the falsehood, the mere fact that  the injuries are not explained by the prosecution, cannot  itself be a sole basis to reject such evidence and  consequently the whole case.   In Rizan and Anr.  vs.  State of Chhattisgarh (2003) 2  SCC 661, this Court has held that non-explanation of the  injuries sustained by the accused at about the time of  occurrence or in the course of altercation is a very important  circumstance.  But mere non-explanation of the injuries by  the prosecution may not affect the prosecution case in all  cases.  This principle applies to a case where the injuries  sustained by the accused are minor and superficial or where  the evidence is so clear and cogent, so independent and  disinterested, so probable, consistent and creditworthy, that  if far outweighs the effect of the omission on the part of the  prosecution to explain the injuries.  This principle was  discussed in Sekar alias Raja Sekharan   vs.   State  represented by Inspector of Police, T.N. (2002) 8 SCC 354  and was reiterated in  Anil Kumar  vs.  State of U.P., (2004)  13 SCC 257.  All the three aforesaid judgments have approved the  statement of law enunciated in Lakshmi Singh’s Case  (supra). In the present case, there  is a creditworthy evidence  of PW-1, PW-2, PW-9 and PW-10 viz., Harvinder Kaur,  Jasvinder Kaur, Jaspal Singh and Pritam Singh, who have  vividly described the incident and the part played by each of  the accused-appellants.  All the four witnesses are injured  witnesses and their presence at the spot cannot be doubted.   The evidence led by the defence  at best shows minor  injuries suffered by Beant Singh and Nirbhai Singh which  would not dislodge the prosecution case, which is  established by the evidence of creditworthy witnesses and  non-explanation of the injuries by the prosecution, if any,  sustained by the accused-appellants would not result in  disbelieving the prosecution version. To prove the case, the prosecution has examined four

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eye-witnesses.  Harvinder Kaur (PW-1), w/o Harbans Singh  (deceased) has deposed that on the relevant day, her  husband and Jaspal Singh were present at the place of  incident where they were preparing cow-dung cakes.  She  saw  the accused-appellants proceeding  towards the  shamlat land.  Mohinder Singh and Nasib Singh were armed  with licensed 12 bore guns, Naginder Singh with dang,  Sukhdev Singh with Kassia, Beant Singh with Kirpan, Nirbhai  Singh with Kassruli.  Mohinder Singh raised a lalkara that  they would teach us a lesson for adding their land with our  land.  Mohinder Singh accused fired from his 12 bore gun  towards her husband Harbans Singh which hit him on the  left side of his chest.  She ran towards her husband and  Nasib Singh fired at her by his gun which hit her on her left  ankle.  Mohinder Singh fired another shot which hit her  husband on his right thigh while lying on the ground.   Naginder Singh-accused gave dang blows to Jaspal Singh by  hitting him but she could not tell the place of injuries on the  person of Jaspal Singh.  Nasib Singh then fired from his 12  bore gun hitting Jasvinder Kaur on her right leg above her  right ankle on the front side.  Nirbhai Singh-accused caused  injuires to Jasvinder Kaur with kassruli.  They raised alarm.   On hearing noise Mander Singh, Gurbans Singh, Gurmit  Singh, Pritam Sikngh, Madan Singh and Mukhtiar Singh  came to the spot to rescue them from the accused.  At that  time Mohinder Singh fired from his gun hitting on the right  flank of Madan Singh and left leg of Pritam Singh.  Then  Naginder Singh, Beant Singh, Sukhdev Singh and Nirbhai  Singh with their respective weapons caused injuries to  Mander Singh, Gurbans Singh, Gurmit Singh and Mukhtiar  Singh.  She has further stated in cross-examination that she  was present at the spot 25-30 minutes prior to the  occurrence and she had seen the accused at a distance of 7- 8 karams.  The accused persons came carrying guns with  them.  The other accused were also with them and they  came together.  Mohinder Singh accused fired with the gun  from a distance of 7-8 karams at Harbans Singh.  Nasib  Singh was at a distance of 7-8 karams from Jasvinder Kaur  when he fired.  Nasib Singh and Mohinder Singh had fired  from 7-8 karams at Madan Singh and Pritam Singh. Further, Jasvinder Kaur (PW-2), another injured eye- witness, fully supports the version given by PW-1 of the  incident.  She specifically stated that Nasib Singh fired from  his 12 bore gun towards her which hit her on her right leg  above the ankle and the  pellets hit her on abdomen and  Nirbhai Singh gave kassruli blows on her left foot.   Jaspal Singh (PW-9) is another injured eye-witness  examined by the prosecution who had described the incident  and the participation of the accused persons in the incident  as described by PW-1 and PW-2.  He had specifically  deposed that accused-Naginder Singh gave three dang  blows to him, first blow hit on his shoulder and second blow  was received by him on the back side at right hand.   Pritam Singh (PW-10), another injured eye-witness,  had supported the statements of the eye-witnesses in toto.   The cross-examination of these witnesses could not  show any contradiction or discrepancy in their version in  regard to the participation of the accused-appellants in the  crime and the part played by them.  The ocular version of  the witnesses find support from the medical evidence of  Dr.  Kirandeep (PW-4) who has conducted the post-mortem on  the deceased Harbans Singh.  Statement of Dr. M.G.  Sharma (PW-3), who examined Mukhtiar Singh and Jaspal  Singh and statement of Dr. Tarlochan Singh (PW-15), who  examined Harvinder Kaur  Gurmit Singh, Pritam Singh,

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Jasvinder Kaur and Mander Singh, fully corroborated the  ocular version of the eye-witnesses.    We find that the eye- witnesses were wholly reliable and supported the case of the  prosecution to the hilt.   The counsel then has urged before us that the  appellants before us  have not caused any injury to Harbans  Singh, the deceased, and, therefore, they could not have  been convicted under Section 302 read with Section 149 of   IPC for causing homicidal death of Harbans Singh.  The  conviction under Section 302/149 could not be supported on  the basis of the evidence led by the prosecution.   The scope and ambit of Section 149 of IPC was the  subject of discussion in various authorities of this Court. In Sukhbir Singh   v. State of Haryana, (2002) 3 SCC  327, it is held by this Court that an accused is vicariously  guilty of the offence committed by other accused persons  only if he is proved to be a member of an unlawful assembly  sharing its common object. Once the existence of common  object of unlawful assembly is proved, each member of such  an assembly shall be liable for the main offence  notwithstanding his actual participation in the commission of  the offence. It is not necessary that each of the accused,  forming the unlawful assembly, must have committed the  offence with his own hands.  The members of the unlawful assembly can be held  liable under Section 149 IPC, if it is shown that they knew  beforehand that the offence actually committed was likely to  be committed in prosecution of the common object. It is true  that the common object does not require prior concert and a  common meeting of mind before the attack. It can develop  even on spot but the sharing of such an object by all the  accused must be shown to be in existence at any time  before the actual occurrence. In Rajendra Shantaram Todankar v. State of  Maharashtra and Ors., (2003) 2 SCC 257, this Court has  held that  Section 149 of the Indian Penal Code provides  that if an offence is committed by any member of an  unlawful assembly in prosecution of the common object of  that assembly, or such as the members of that assembly  knew to be likely to be committed in prosecution of that  object, every person who at the time of the committing of  that offence, is a member of the same assembly is guilty of  that offence. The two clauses of Section 149 vary in degree  of certainty. The first clause contemplates the commission of  an offence by any member of an unlawful assembly which  can be held to have been committed in prosecution of the  common object of the assembly. The second clause  embraces within its fold the commission of an act which may  not necessarily be the common object of the assembly,  nevertheless, the members of the assembly had knowledge  of likelihood of the commission of that offence in prosecution  of the common object. The common object may be  commission of one offence while there may be likelihood of  the commission of yet another offence, the knowledge  whereof is capable of being safely attributable to the  members of the unlawful assembly. In either case, every  member of the assembly would be vicariously liable for the  offence actually committed by any other member of the  assembly. A mere possibility of the commission of the  offence would not necessarily enable the court to draw an  inference that the likelihood of commission of such offence  was within the knowledge of every member of the unlawful  assembly. It is difficult indeed, though not impossible, to  collect direct evidence of such knowledge. An inference may  be drawn from circumstances such as the background of the

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incident, the motive, the nature of assembly, the nature of  the arms carried by the members of the assembly, their  common object and the behaviour of the members soon  before, at or after the actual commission of the crime.  Unless the applicability of Section 149 \026 either clause \026 is  attracted and the court is convinced, on facts and in law,  both, of liability capable of being fastened vicariously by  reference to either clause of Section 149 IPC, merely  because a criminal act was committed by a member of the  assembly, every other member thereof would not  necessarily become liable for such criminal act. The  inference as to likelihood of the commission of the given  criminal act must be capable of being held to be within the  knowledge of another member of the assembly who is  sought to be held vicariously liable for the said criminal act. In State of Rajasthan v. Nathu and Ors., (2003) 5 SCC  537, this Court has held that if death had been caused in  prosecution of the common object of an unlawful assembly,  it is not necessary to record a definite and specific finding as  to which particular accused out of the members of the  unlawful assembly caused the fatal injury. Once an unlawful  assembly has come into existence, each member of the  assembly becomes vicariously liable for the criminal act of  any other member of the assembly committed in  prosecution of the common object of the assembly.   It is held in Parsuram Pandey and Ors.  v. State of  Bihar, (2004) 13 SCC 189 that to attract Section 149 IPC  the prosecution must prove that the commission of the  offence was by any member of an unlawful assembly and  such offence must have been committed in prosecution of  the common object of the assembly or must be such that  the members of the assembly knew that it was likely to be  committed. Unless these three elements are satisfied by the  prosecution the accused cannot be convicted with the aid of  Section 149 IPC.  In Rabindra Mahto & Ors., v. State of Jharkhand, JT  2006 (1) SC 137, this Court has held that under Section 149  IPC, if the accused is a member of an unlawful assembly,  the common object of which is to commit a certain crime,  and such a crime is committed by one or more of the  members of that assembly, every person who happens to be  a member of that assembly would be liable for the  commission of the crime being a member of it irrespective of  the fact whether he has actually committed the criminal act  or not.    There is a distinction between the common object  and common intention.  The common object need not  require prior concert and a common meeting of minds before  the attack, and an unlawful object can develop after the  assembly gathered before the commission of the crime at  the spot itself.  There need not be prior meeting of the mind.   It would be enough that the members of the assembly which  constitutes five or more persons, have common object and  that they acted as an assembly to achieve that object.  In  substance, Section 149 makes every member of the  common unlawful assembly responsible as a member for the  act of each and all merely because he is a member of the  unlawful assembly with common object to be achieved by  such an unlawful assembly.  At the same time, one has to  keep in mind that mere presence in the unlawful assembly  cannot render a person liable unless there was a common  object and that is shared by that person. The common  object has to be found and can be gathered from the facts  and circumstances of each case.  The prosecution has established that all the accused- appellants came to the spot of incident together.  All the

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accused-appellants were carrying deadly weapons.  Two of  them had carried 12 bore guns.  Immediately on reaching  the spot Mohinder Singh one of the accused had opened fire  followed by firing by another accused-appellant Nasib Singh  and in the same transaction the accused-appellants had  caused several injuries to  various persons, not only to the  persons who were present at the spot but also to the  persons who had reached the spot after hearing the  commotion.  The facts found in the case clearly established  the common object of the assembly.  The knowledge of  assembly that grievous hurt or death would be caused can  be safely attributed to the members of the unlawful  assembly because of the fact that two of the members of the  assembly have carried the licensed guns.  An inference can  be drawn of the knowledge of common object and formation  of common object from the behaviour of the members of the  assembly of the accused persons, who came together with  deadly weapons and immediately started attacks  indiscriminately on the persons present there.  As many as  nine persons have received 31 injuries, which clearly  establishes the common object of the unlawful assembly to  do away with Harbans Singh and cause injuries to any  person who tried to intervene.   We are satisfied with the evidence led by the  prosecution that common object of all the accused  appellants of causing death of Harbans Singh was  established beyond any doubt and, therefore, the accused- appellants were rightly convicted under Section 302 IPC with  the aid of Section 149 of IPC apart from other convictions  under other Sections of IPC for causing injuries to other  persons.   For the foregoing reasons, in our view there is no merit  in this appeal.  The appeal is dismissed.