REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.       OF 2008 (Arising out of S.L.P.(Crl.) No.5031 of 2007)

               Raj Nath ...Appellant

Versus

State of U.P. ..Respondent

(With Crl. A. No.              /2008 @ SLP (Crl.) No. 2054 of 2008)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the judgment of a Division Bench of

the Allahabad High Court dismissing the appeal filed by the five appellants

before the High Court.  The present appellants,  his two sons Yatindra and

Surendra  alongwith  Ram  Kripal,  Gajendra  and  Govind  were  tried  by

learned IInd Additional Sessions Judge, Mainpuri  for alleged commission

of offences punishable under Sections  147, 148, 302 read with Section 149

and Section 307 read with Section 149 of the Indian Penal Code, 1860 (in

short the ‘IPC’). The trial Court acquitted accused Govind but rest of the

five accused were convicted for offences punishable under Section 302 read

with Section 149 IPC, 307 read with Section 149 and Section 148 IPC. Life

sentence,  five  years  rigorous  imprisonment  and  two  years  rigorous

imprisonment respectively were imposed.  

3. Background facts in a nutshell are as follows:

The informant Vijay Bahadur is a resident of village Sakaragarhi, P.S.

Kishni, district Mainpuri. There was a litigation between Smt. Rama Devi

and appellant Raj Nath resident of Nagla Tara in which Raj Nath lost in the

litigation before court. In the said litigation, informant Vijay Bahadur had

helped Smt. Rama Devi. Four months prior to the incident Rama Devi had

sold 16 bighas of her land to Lokeshwar Nath (PW-2) nephew of informant

which sale was not relished by the appellant Raj Nath and his sons and they

started nurturing animosity for the informant. On 18.5.1978 appellant Raj

Nath  and  others  plucked  Jackfruits  from  trees  standing  over  the  land

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purchased by Lokeshwar Nath regarding which a first  information report

was lodged by him.  

On the date of the incident i.e. 5.6.1978 at 6.00 P.M. Vijay Bahadur

along  with  his  sons  Narendra  Nath  and  Mahendra   accompanied  by

Lokeshwar Nath and Shrawan Kumar had gone to the house of his cousin

Ram Prakash  in  village  Nagla  Tara,  also  the  village  of  the  accused,  for

hearing Bhagwat and to participate in the feast thereafter. After taking meal

they were returning to their village along with Murari Lal and Mitthu Lal

Gadaria. When they reached near the house of Kalka Prasad at 6 p.m. the

accused appellants  Raj Nath, his  sons Satyendra and Surendra, Gajendra,

Ram Kripal and Govind came there from the south western corner of the

brick wall and threatened that they will teach a lesson to Lokeshwar Nath

for purchasing the land and immediately thereafter appellant Raj Nath with

his licensed gun and rest of the appellants with their country made pistols

opened fire at the prosecution party. Lalit Kumar (hereinafter referred to as

the  ‘deceased  no.1’)  sustained  gunshot  injury  and  died  instantaneously.

Narendra Nath and Shrawan Kumar sustained firearm injuries and fell down

at  a  short  distance.  Lokeshwar  Nath  and  Mahendra  Nath  also  sustained

firearm injuries. Gun fire attracted Prem Narayan and many others to the

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place  of  the  incident.  When  the  injured  were  being  transported  to  the

hospital  in  the  bullock  cart  by  the informant,  injured  Narendra  Nath

(hereinafter referred to as deceased no.2) lost his life in the way. Shrawan

Kumar,  Mahendra  and  Lokeshwar  Nath  were  dispatched  to  the  District

Hospital,  Mainpuri.  Informant got  the FIR (Ex.Ka-7) of the said incident

scribed through one Arun Kumar and lodged it at police station Kishni on

the same day at 10.30 p.m. covering a distance of 8 miles south. Lajja Ram

PW-4 Constable clerk prepared the chik Fir Ex. Ka-6 and G.D. entry Ex.Ka-

7 and the investigation was immediately engineered by Mahendra Prasad

Singh S.O. PW-10.

Investigating  Officer  proceeded  to  the  village  Kusmara  where  the

corpse of Narendra was  lying and there he conducted the inquest  on his

dead body as Ex.Ka-38. Thereafter, he came to the place of the incident in

village Nagla Tara near the dead body of Lalit  Kumar and conducted the

inquest. Thereafter he conducted spot inspection and prepared site plan Ex.

Ka-47 collected blood stained and plain earth Ex. Ka-48. He also recovered

empty cartridges (material  Ex.1 to 3)  from the roof  of  Kalka Prasad and

prepared its recovery memo Ex.Ka-49. He thereafter arrested appellant Ram

Kripal and recovered country made pistol and three cartridges from him. On

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5.6.1978 he recorded the statement of the informant and thereafter in the

morning he prepared the inquest report of Narendra Nath deceased who had

expired in the hospital at 5.20 a.m. next day. Thereafter he was transferred.

Shrawan Kumar also lost his life after four days in the hospital because of

the sustained injuries in the incident. The post mortem examination on the

dead bodies of Shrawan Kumar, Lalit Kumar, Narendra Nath and Mahendra

Nath was held and various gunshot injuries and ante mortem injuries were

found on their bodies.  

The  report  of  Forensic  Science  Laboratory,  Lucknow,  U.P.  dated

31.7.1978  brought  out  the  fact  the  cartridges  E.C.-3  was  fired  from

countrymade pistol marked as 1/79.

After investigation charge sheet was filed and charges were framed

against  all  the  six  accused  persons.  Since  the  accused  persons  pleaded

innocence trial was held. PWs 1 and 2 were stated to be the eye witnesses.

Placing reliance on the evidence of the eye witnesses the trial Court found

the prosecution case to have been established and recorded conviction as

noted above.

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Before the High Court the stand was that there was no recovery of

gun and no injury is relatable to any act purported to have been done by the

appellants. The High Court did not accept this plea and held that because of

application  of  Section  149  IPC  the  prosecution  case  has  been  fully

established.  

4. In support of the appeal, learned counsel for the appellants submitted

that  the  Forensic  Science Laboratory report  clearly shows that  no  injury

could be inflicted with the weapon held by the appellants.  

5. Learned counsel for the respondent-State on the other hand submitted

that four persons lost their lives because of acts of the accused persons. The

role of the present appellants has been clearly established.  Therefore, the

High Court’s judgment does not suffer from any infirmity.  

6. So far as the reliability of evidence of the eye witnesses PWs 1 and 2

is  concerned their  evidence has been analysed in great  detail  by the trial

Court and the High Court.  PW-2 was one of the injured persons. Therefore,

there is nothing infirm in the conclusions of the trial Court and the High

Court placing reliance on their evidence.   

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7. It is to be noted that one of the deceased persons received nearly 30

injuries  which  is  consistent  with  the  prosecution  case  that  the  accused

persons were holding country made pistols.  

8. A plea which was emphasized by the appellant 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

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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

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this the effect of Section 149, IPC may be different on different members of

the same assembly.

9. ‘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. For determination of the common

object of the unlawful assembly, the conduct of each of the members of the

unlawful  assembly,  before  and  at  the  time  of  attack  and  thereafter,  the

motive  for  the crime,  are  some of  the relevant  considerations.  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

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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 co instanti.

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

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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

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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, but offences

committed in prosecution of the common object would be generally, if not

always, be 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. 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  v.  State of U.P. (1989 (1) SCC 437) 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”.

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12. This position has been elaborately stated by this Court in Gangadhar

Behera and Ors. v.  State of Orissa (2002 (8) SCC 381 and  Shivjee Singh

and  Ors.  v.  State  of  Bihar  (SLP  (Crl.)  No.1494/2004  disposed  of  on

30.7.2008).  

13. Section  149  IPC  has  clear  application  to  the  facts  of  the  case.

Therefore, the trial Court and the High Court were justified in convicting

the appellants.  The appeals are dismissed.  

....................................................J. (Dr. ARIJIT PASAYAT)

…….…………………...............J. (Dr. MUKUNDAKAM SHARMA)

New Delhi,

January 13, 2009   

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