REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1494 OF 2004

Shivjee Singh and Ors. …Appellants

Vs.

State of Bihar …Respondent

(With Criminal appeal No.484 of 2006)   

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. These two appeals have a common matrix in judgment of

the  Division  Bench  of  the  Patna High  Court.   Two  appeals

were  disposed  of  by  the  common  judgment.   In  Criminal

Appeal no.408 of 1998 there were six appellants whereas in

Criminal Appeal no.458 of 1998 there was one appellant. In

the two appeals before this Court there are five appellants in

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the  Criminal  Appeal  no.494/2004,  and  there  are  two

appellants  in  Criminal  Appeal  no.484/2006.  All  the  five

appellants  in Criminal  Appeal  No.1494  of  2004  were  found

guilty  of  offence  punishable  under  Section  302  read  with

Section 149 of the Indian Penal Code, 1860 (in short ‘IPC’) and

Section 147.  Similar was the conviction recorded in case of

Satya Narain Singh, one of the appellants in Criminal Appeal

no.484 of 2006.  Ambika Singh the other appellant in Criminal

Appeal no.484 of 2006 was convicted for offence punishable

under Sections 302 and 148 IPC and Section 27 of the Arms

Act, 1959 (in short ‘Arms Act’). Appellants in Criminal Appeal

no.1494 of 2004 were sentenced to life imprisonment and two

years respectively. Similar was the case of Satya Narain Singh-

appellant in Criminal Appeal no.484 of 2006.  Ambika Singh-

appellant in criminal appeal no.484 of 2006 was sentenced to

undergo life imprisonment, three years, and five years for the

three offences noted above.         

2. Background facts giving rise to the trial are as follows:

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At  sunset  time  on  the  day  of  Holi  (the  date  being

9.3.1993)  Bhagwan Singh (P.W.1)  was  sitting  at  his  Dalan.

Satya  Narain  Singh  came  there  in  an  inebriated  state  and

started quarreling with him and abusing him.  Bhagwan Singh

asked him to stop the abuses and to go away.  On this Satya

Narain Singh called his family members. Ambika Singh, one of

his three sons came armed with his gun; others carried sticks,

stones  and  brick  pieces  in  their  hands.   On  hearing  the

exchange  of  hot  words  a  number  of  villagers  came  there.

Some  of  them were  singing  Holi  songs  at  the  nearby  Devi

Asthan and on hearing the noise they came to the Dalan of

Bhagwan Singh.  Others who were neighbours also came. The

villagers coming there asked Satya Narain Singh to stop the

quarrel and scolded him.  Satya Narain Singh then took his

relatives to his roof-top and from there they started throwing

stones and pieces of bricks at the tiled roof of the house of

Bhagwan Singh.  Satya Narain  Singh urged his  son Ambika

Singh to open fire  from his  gun.  So,  ordered by his father,

Ambika  Singh  fired  a  shot  that  hit  Meghnath  Singh

(hereinafter referred to as the ‘deceased’) on his back and as a

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result he fell down and died. Ambika Singh fired seven to eight

shots that caused injuries to Ram Pran Singh (PW 3), Sri Ram

Singh (PW 10)  and Umesh Singh (PW 6).  One of the stones

thrown by  Satya  Narain  Singh  hit  Suraj  Singh (PW 5)  and

caused injury to him.  After the occurrence the injured were

carried on a tractor to Ara town where they were admitted to

the Sadar Hospital and were treated there for about a week.

Sitaram Singh (PW 15) who at that time was the officer

Incharge of Ayar P.S. was going round the villages under his

P.S. for maintaining peace and order on the day of Holi.  At

village Bargaon he came to learn that gun shots were fired at

Medhapur  village.   From  there  he  proceeded  to  Medhapur

along with an armed police party and reached there at about

10.30  in  the  night.   There  he  recorded  the  statement  of

Babulal  Singh  (PW  12),  the  brother  of  the  deceased  in

presence of a witness Baleshwar Singh (PW 2).  The statement

was recorded as fard-e-bayan (Ext.1) on the basis of which a

formal  F.I.R.  (Ext.  7)  was  later  drawn  up  on  10.3.1993  at

00.30 hrs. giving rise to Jagdishpur (Ayar) PS Case No.27 of

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1993.  After  recording  the  fard-d-bayan  he  took  up

investigation  of  the  case,  recorded  the  statements  of  other

witnesses  who  were  available  there,  examined  the  place  of

occurrence  and  prepared  the  inquest  report  (Ext.  2)  of  the

deceased Meghnath Singh.

On completion of investigation he submitted charge sheet

against the appellants.  They were put up on trial and at the

end were convicted and sentenced as indicated above.

It  may  be  mentioned  here  that  in  regard to  the  same

occurrence  a  case  was  instituted  from  the  side  of  the

appellants as well.  That was registered as Jagdishpur (Ayar)

PS Case No.28 of 1993 under Sections 147, 148, 149, 323,

447, 337 and 325 of the Indian Penal Code and Sections 27 of

the Arms Act.  In that case some of the witnesses examined by

the prosecution in the present case, along with some others

were named as accused.  That case is said to be pending trial

before a Magistrate.

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3. 17  witnesses  were  examined  by  the  prosecution  to

establish the prosecution version.  PWs 1 to 6 and 9 to 12

were stated to be eye witnesses.   PWs 3, 5, 6 and 10 were

injured  witnesses.  The  trial  Court  placed  reliance  on  their

evidence and found accused appellants guilty as noted above.

4. In  appeal,  the  High  Court  rejected  the  plea  of  the

appellant that the evidence of witnesses should not have been

relied  upon  as  there  was  sudden  pre-fight  and,  therefore,

Section 149 has no application.   The  High Court,  as noted

above, dismissed the appeal.  

5. In  support  of  the  appeal  learned  counsel  for  the

appellant submitted that so far as applicability of Section 149

IPC is concerned, there was no discussion either by the Trial

Court or the High Court.  The appellant in Criminal Appeal

no.1494 of 2004 is stated to have pelted stones on the house

of  the  deceased.   That  is  not  sufficient  to  attract  Section

302/149 IPC.  According to the prosecution version accused-

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Ambika Singh fired the shots after the pelting of the stones

has stopped.   The  role  ascribed to Satya Narain Singh was

that he was exhorting Ambika Singh to fire.

6. Leaned  counsel  for  the  respondent-State  on  the  other

hand supported the judgments of the Trial Court and the High

Court.  

7. We shall  first  deal  with the  applicability  of  Section149

IPC.  So far appellants in Criminal Appeal no.1494 of 2004 are

concerned, it is pointed out by the prosecution that the stones

were pelted by the accused persons with a view to damage the

roof and did last only for two to three minutes. It is also stated

by the witnesses that only after the stopping of the pelting of

stones,  firing  was  done.  It  is,  therefore,  stated  by  leaned

counsel for the appellant in Criminal Appeal no.1494 of 2004

that neither the Trial Court nor the High Court has analysed

the aspect relating to applicability of Section 149 IPC.  Abrupt

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conclusions have been arrived at about the applicability of the

provisions.   

8. A plea which was emphasized by the appellants 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

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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

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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.

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

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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  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.

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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

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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

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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).  

13. When  the  factual  scenario  is  considered  in  the

background  of  the  above  principles  set  out  above,  the

inevitable conclusion is that the appeal filed by the appellants

in Criminal Appeal no.1494 of 2004 deserves to be allowed.

Their  conviction  is  set  aside  so  far  their  conviction  under

Section 302 read with Section 149 IPC is concerned. But the

sentence  imposed  for  the  offence  punishable  under  Section

147 is maintained.  The sentence shall be three months for

the offence punishable. So far the other appeal is concerned,

the  evidence  brought  on  record  clearly  establish  the

accusations.  Therefore,  while  Criminal  Appeal  no.1494  of

2004  is  partly  allowed,  Criminal  Appeal  no.484  of  2006  is

dismissed.  

……….……………………… ….J.

(Dr. ARIJIT PASAYAT)

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

New Delhi, July 30, 2008

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