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CASE NO.: Appeal (crl.)  123 of 2005

PETITIONER: Sunil Kumar and Anr.                                             

RESPONDENT: State of Rajasthan                                               

DATE OF JUDGMENT: 19/01/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T  (Arising out of S.L.P. (CRl.) No.544 of 2004) With Crl. Appeal No.124 of 2005(Arising out of SLP (Crl.)No.1774/2004, Crl.  Appeal No.125 of 2005(Arising out of SLP (Crl.)1481/2004, Crl. Appeal  No.126 of 2005 (Arising out of SLP (Crl.) 2537/2004), Crl. Appeal  No.127 of 2005 (Arising out of SLP (Crl.) 2542/2004 and Crl. Appeal  No.128 of 2005 (Arising out of SLP (Crl.) 2543/2004))

ARIJIT PASAYAT, J.

       Leave granted.

       All these appeals are directed against common judgment of the  Rajasthan High Court by which the appeals preferred by eight accused  persons including present appellants were disposed of. While Ramesh,  son of Harish Chandra was convicted for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’) and was  sentenced to undergo imprisonment for life and to pay a fine of  Rs.1,000/- with default stipulation, the other seven i.e. present  appellants were convicted for offence punishable under Section 302 IPC  read with Section 149 IPC and were each sentenced to undergo  imprisonment for life and to pay a fine of Rs.1,000/- each with default  stipulation. Each of the eight accused persons were convicted in terms  of Section 148 IPC and sentenced to undergo two years’ rigorous  imprisonment. Ramesh, son of Harish Chandra who was convicted in terms  of Section 302 IPC, has not preferred any appeal, while the rest seven  accused persons have preferred the present appeals.

       Prosecution version as unfolded during trial is as follows:

       On October 29, 1998 around 11 A.M. informant Yogendra Singh (PW- 1) submitted written report to one Phool Chand, Police Officer at  Roadways Bus stand Jhunjhunu. It was, inter alia, stated in the report  that on the said day at about 10.00 A.M. the informant was standing at  the Traffic point near bus stand. Two other witnesses i.e. Surendra and  Ajay were also there. Suddenly they heard ruckus coming from the front  of a tea stall nearby.  All the three rushed to the spot where they saw  that the nephew of informant, namely, Sumer Singh (hereinafter referred  to as the ’deceased’) was surrounded by the appellants who were  equipped with hockies, iron rods and pipes etc., while Ramesh Kumar had  a knife.  Ramesh Kumar inflicted several blows on the abdomen of the  deceased with knife and others belaboured him with hockies, iron rods  and pipes.  After causing injuries to the deceased the assailants fled  away from the scene of occurrence in   a   red    jeep bearing No. RJ\026 19/C-6255 in which they had come together. The incident had been  witnessed by other witnesses Chandra Shekhar and Krishna Kumar. It was

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also alleged in the report that deceased was belaboured on account of  previous enmity.  On the basis of said report, formal FIR was  registered at Police Station Jhunjhunu for offences punishable under  Sections 302, 147, 148 and 149 IPC and investigation commenced. Site  plan of the incident was drawn. Deceased was subjected to post mortem  examination. Blood stained clothes of the deceased were seized. Control  soil and blood stained soil were lifted from the place of incident. The  accused persons were taken into custody and at their instance certain  weapons as also the jeep got recovered. Charge sheet was filed after  completion of investigation. Trial was conducted by learned Sessions  Judge, Jhunjhunu. Charges under Sections 147, 148,302 in the alternate  302/149 IPC were framed against the appellants and Ramesh who denied  the charges and claimed trial. The prosecution in support of its case  examined 21 witnesses and got exhibited 61 documents. In their  explanation under Section 313 of the Code of Criminal Procedure, 1973  (in short the ’Cr.P.C’.), the accused persons pleaded innocence and  stated that the witnesses were partisan and were telling lies as they  happened to be close relatives of the deceased and on account of  groupism there had been blatant false implication. On consideration of  materials on record learned Sessions Judge convicted and sentenced the  appellants as indicated herein above. All the eight accused persons  preferred appeals before the High Court which as noted above dismissed  the appeals and upheld the conviction and sentence.

       In support of the present appeals common points were urged by  learned counsel appearing for the various appellants. The pivotal  question raised related to applicability of Section 149 IPC.  Additionally, it was submitted that the High Court did not properly  consider the various pleas which were raised i.e. (1) unexplained delay  in sending the copy of FIR to Ilaka Magistrate; (2) non-examination of  independent witnesses; (3) discrepancies in the evidence of witnesses  claimed to be eye witnesses, who in fact were related to the deceased;  and (4) the prosecution witnesses, more particularly the relatives as  to how they happened to be at the place of occurrence at a particular  time.  

It was pointed out that the basic elements necessary to bring in  application of Section 149 IPC did not exist.  There was no evidence  that there was any common object which was pursued by the appellants.  Even if it is conceded to the position, as claimed by the prosecution  that they came in the same jeep and were armed with various weapons  that does not per se establish that they shared a common object. The  prosecution has failed to prove that in pursuance of such common object  Ramesh who is stated to have given the fatal knife blows carried out  the objective of the alleged unlawful assembly. Out of the five  witnesses who were claimed to be eye witnesses three were closely  related. Their statements also were not recorded immediately after the  investigation stated and in fact were recorded in some cases two days  after, and in one case after about two weeks.  The fact that the FIR  was dispatched to the magistrate long after the FIR was lodged itself  goes to establish that there was deliberation on the part of the police  officials and the relatives of the deceased including the informant and  so called eye witnesses, and the accused persons have been falsely  implicated.  There was no perceivable motive for the present appellants  to have any animosity towards the deceased.  If the persons who claimed  to be eye witnesses were really present at the spot, their normal and  natural conduct would have been to rescue the deceased which has not  been done. Even though the prosecution version is that indiscriminately  the appellants assaulted the deceased, only three abrasions were found.  As is evident from the conclusions of the trial court, the second part  of Section 149 IPC which relates to knowledge of likelihood that   alleged offence would be committed there was no definite  finding  recorded in that regard. From the evidence no common object is  discernible. The object may have been at the most, even if it is  accepted that same existed, to chastise the deceased, rough him up or

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cause some hurt. These probabilities have not been ruled out by the  prosecution.  It has not been shown that the real objective was murder  of the deceased.  There is no evidence to show that the present  appellants knew that murder was likely to be committed. The conclusion  of the trial court and the High Court that the present appellants  facilitated the killing or aborted efforts of others to save the  deceased are not supported by any cogent evidence. The genesis of the  incident is shrouded in mystery and there is no proximate cause  established as to why the accused appellants would do away with the  life of the deceased by pursuing a common objective. It was submitted  that even if there was any pre-conceived object, that may at the most  attract Section 304 IPC and not Section 302 IPC.

       In response, learned counsel for the State submitted that the  statements of the PWs. clearly establish the role played by the  appellants. Their conduct before the incident, during the incident and  after the incident clearly establishes the common object which was  being pursued by them. No specific question was put to the I.O. as to  why there was delay, as claimed by the appellants and on the contrary  witnesses themselves have indicated the reasons as to why they were at  the spot of incident and why their statements were recorded after some  time. To similar effect is the plea of learned counsel appearing for  the informant.

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 such 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 ’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 this the effect of Section 149, IPC may be  different on different members of the same assembly.

       ’Common object’ is different from a ’common intention’ as it does  not require a prior concert and a common meeting of minds before the

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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. 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.

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 from the nature of the assembly, arms it  carries and behaviour at the time of or before or after the occurrence.  The word ’knew’ used in the second limb 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 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 the first part but offences committed in prosecution of the  common object would also be generally, if not always, be within the  second part, namely, offences which the parties knew to be likely to be  committed in the prosecution of the common object. (See Chikkarange  Gowda and others v. State of Mysore  AIR 1956 SC 731).

       These aspects were recently highlighted in Chandra & Ors. v.

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State of U.P. and Anr. [2004 (5) SCC 141].

       In the factual scenario noticed above, the trial court and the  High Court have referred to several relevant aspects to hold that  Section 149 IPC is applicable.   

       It has been established by the evidence of the eye witnesses that  all the eight accused persons were armed with weapons, they surrounded  the deceased and in fact prevented others from going near the deceased  to rescue him.  They had arrived together in the same jeep and left by  the jeep after the incident.  One important and relevant factor, which  has been noticed by the trial court and the High Court, is that the  jeep was kept in starting position. Significantly the defence in the  cross examination brought out the fact that the accused persons  surrounded the deceased and prevented those who wanted to go to rescue  the deceased by threatening them with dire consequences. The trial  court and the High Court have analysed the factual position in great  detail and have pointed out the aforesaid relevant factors. Therefore,  there is no infirmity in the conclusion of the courts below about the  applicability of Section 149 IPC.  

Great stress was laid on the alleged delay in dispatch of the FIR  to the Ilaka Magistrate. FIR was recorded on 29.10.1999 at about 11.00  A.M. and reached the Magistrate on 30.10.1999 at about 12 noon. It  cannot be laid down as a rule of universal application that whenever  there is some delay in sending the FIR to the concerned magistrate, the  prosecution version becomes unreliable. It would depend upon the facts  of each case.  In the instant case as appears from the records the  investigation was taken up immediately and certain steps in  investigation were taken. Therefore, the plea that there was no FIR in  existence at the relevant time has no substance.  Additionally, no  question was asked to the investigating officer as to the reason for  the alleged delayed dispatch of the FIR. Had this been done,  investigating officer could have explained the circumstances. That  having not been done, no adverse inference can be drawn.  

So far as the delayed recording of statement of the witnesses is  concerned, here again no question was put to the investigating officer  specifically as to why there was delay in recording the statement. On  the contrary, the witnesses themselves have indicated as to why there  was delay. The plea of the appellants in this regard, therefore, has no  substance.

       Learned counsel for the appellants have also pointed about that  though the place where the alleged incident took place, was in a busy  locality, no independent witness was examined.  It was also submitted  that the relatives have not explained as to how they happened to be at  the spot.  Here again the factual position is otherwise. Out of the  witnesses who were claimed to be eye witnesses, Chandra Shekhar (PW-3)  and Narendra singh (PW-5) were not relatives and in any event belonged  to some other places. Even if PWs. 1, 2 and 4 were related to the  deceased, PW-1 was a traffic constable and as the evidence on record  clearly establishes he was posted at a place nearby the place of  occurrence as a traffic constable. Therefore, his presence cannot be  doubted.  Other witnesses have also stated as to how they happened to  be at the spot of occurrence.  That being so, the plea that independent  witnesses have not been examined is without any substance. Two  independent witnesses have been examined who have lent the  corroboration to the evidence of the relatives.

       The criticism levelled that the relatives did not come forward to  save the deceased is also without any substance, in view of the  evidence as noted above to the effect that accused persons threatened  those who wanted to intervene with dire consequences.

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Where a group of assailants who were members of the unlawful  assembly proceeds to commit the crime in pursuance of the common object  of that assembly, it is often not possible for witnesses to describe  the actual part played by each one of them and when several persons  armed with weapons assault the intended victim, all of them may not  take part in the actual assault.  Therefore, it was not necessary for  the prosecution to establish as to the specific overt act was done by  each accused.

       In view of the factual position as noticed by the courts below  and the legal principles governing application of Section 149 IPC, the  inevitable conclusion is that courts below were justified in applying  Section 149 IPC to the case of the appellants. They have been rightly  convicted under Section 302 read with Section 149 IPC. That being so,  the appeals deserve dismissal which we direct.