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Has Not The Apex Court Done Violence To Section 149 IPC?

Justice V Ramkumar
12 Dec 2021 3:45 AM GMT
Has Not The Apex Court Done Violence To Section 149 IPC?
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I chanced to peruse a Judgment dated 23-11-2021 by a two – Judge Bench of the Supreme Court of India in Criminal Appeal No: 31 of 2019 (Viram @ Virma v. State of Madhya Pradesh), forwarded to me by a senior Advocate of the Supreme Court. Even though the judgment is shown as "non-reportable", there cannot be any doubt that it has equal binding force as any other judgment of the...

I chanced to peruse a Judgment dated 23-11-2021 by a two – Judge Bench of the Supreme Court of India in Criminal Appeal No: 31 of 2019 (Viram @ Virma v. State of Madhya Pradesh), forwarded to me by a senior Advocate of the Supreme Court. Even though the judgment is shown as "non-reportable", there cannot be any doubt that it has equal binding force as any other judgment of the Apex Court.

2. The two-Judge Bench was disposing of an appeal by A2 to A4, A7 to A11, A18 and A20. Out of the remaining accused, A12 to A15, A19 and A21 were already dead.

3. The prosecution case, as is discernible from the Judgment itself, is as follows :-

"There was a wordy altercation between the deceased (Babulal Lodha) and one Shankarlal (P.W. 11) with Shriram Sarpanch (A20) and others during the day time of 19-08-1995. Enraged by the daytime incident and out of the enmity arising therefrom, 21 accused persons and 2 juveniles, after sunset and armed with deadly weapons like farsa, lathi, ballam, spear and sword, attacked Babulal Lodha and PW 11. When the first informant along with PWs 1, 2, 4 and 6 to 9 rushed to the rescue of Babulal Lodha and PW 11, they were also attacked by the assailants. Babulal Lodha died and many others including the first informant, PWs 1, 2 and 4 to 11 sustained injuries on their heads, legs, back and other parts of the body."

4. The trial Court convicted all the accused person for offences punishable under Sections 147, 323, 324, 325, 329 and 302 read with Section 149 IPC. For the conviction under Section 302 IPC they were all sentenced to imprisonment for life and for the other offences they were sentenced to imprisonment for various terms. The above conviction and sentence were confirmed by the High Court of Madhya Pradesh. It was aggrieved by the said conviction and sentence that the aforesaid accused filed appeals before the Supreme Court.

5. In paragraph 7 of the Judgment it is observed that the Supreme Court does not normally re-appreciate the evidence unless the assessment of the evidence by the High Court is vitiated by an error of law or procedure or is based on an error of record or a misreading of evidence or is inconsistent with the evidence. It is further observed that the Supreme Court does not enter into the credibility of the evidence with a view to substitute its own opinion for that of the High Court. Then, makes a crucial observation as follows:-

"Having scrutinized the record of the Courts below, we are of the considered view that there is no error committed by them. The death of deceased Babulal was caused due to the attack by the Appellants".

Again in paragraph 9 of the Judgment the Apex Court has observed as follows :-

"The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye witnesses".

In paragraph 2 of the judgment it is also observed that the submission made before the Trial Court by the defence that there was a contradiction between the ocular testimony of the witnesses and the medical evidence, was not accepted by that Court. Towards the end of paragraph 7, the Apex Court also took into account the testimony of Dr. A. D. Bhindurkar (P. W. 13) to the effect that the "torn wound in Y shape measuring 8 x 1.2 x 1.5 cm located on the left parietal bone which appeared to have been inflicted by a hard and blunt weapon", was fatal. In para 10 of the Judgment it is unmistakably observed that "there is abundant evidence on record to show that the appellants attacked the deceased and the injured witnesses with deadly weapons".

6. The above circumstances were strong enough for the Apex Court to confirm the conviction and sentence concurrently recorded by the trial Judge as well as by the High Court. However, in paragraph 10 of the Judgment, for the reason that there is no corresponding injury matching with the user of the weapons by A9, A12, A19 and A20, the Apex Court hurriedly jumped to the conclusion that the conviction of the appellants under Section 302 read with Section 149 IPC is not justified and the same has been altered to one punishable under Section 326 read with Section 149 IPC. After dislodging the life imprisonment awarded to the appellants, the Apex Court has imposed a sentence of imprisonment (whether simple or rigorous not indicated) for 7 years to each of the appellants for the altered conviction under Section 326 read with Section 149 IPC.

7. My respectful opinion is that the above conclusion reached by the Apex Court is patently unsustainable and ignores the following settled propositions of law:-

a)This was not a case where either the trial Judge or the appellate Court had found any irreconcilable contradiction between the medical evidence and ocular evidence so as to reject the direct testimony of eye-witnesses.

THE CASE-LAW ON THIS POINT

(1) Direct ocular evidence. Opinion of the medical officer who is not a witness of fact is only to assist the Court and really is of an advisory character not binding on the witness of truth. (vide Vishnu v. State of Maharashtra (2006) 1 SCC 283 = AIR 2006 SC 508; Jabar Singh v. State of Rajasthan 1994 SCC (Cri) 1745; State of Bihar v. Ram Padarath Singh (1998) 6 SCC 240 = AIR 1998 SC 2606).

(2) The purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such opinion is not binding upon the Court. If eye-witnesses' evidence and other prosecution evidence are trustworthy, have credence and are consistent with the direct testimony given by the eye-witnesses, the Court will be well within its jurisdiction to discard the expert opinion. (vide Dayal Singh v. state of Uttaranchal (2012) 8 SCC 263 = AIR 2012 SC 3046).

(3)  In case of conflict between medical evidence and ocular testimony, the latter should be preferred unless it belies fundamental facts (vide State of Punjab v. Hakam Singh (2005) 7 SCC 408; Ravikumar v. State of Punjab (2005) 9 SCC 315 = AIR 2005 SC 1929; Rangnath Shamrao Dhas v. State of Maharashtra (2009) 4 SCC 33; Anwar v. State of Haryana (1997) 9 SCC 766; Daryao Singh v. State of M.P (1991) 2 SCC 588 – 3 Judges; Prem v. Daula (1997) 9 SCC 754 = AIR 1997 SC 715; State of U.P v. Harban Sahai (1998) 6 SCC 50 – 3 Judges; Ram Dev v. State of U.P 1995 Supp. (1) SCC 547; Solanki Chimanbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174 = AIR 1983 SC 484.

(4) Credible ocular testimony preferable to medical opinion showing alternative possibilities (vide Ramakant Rai v. Madan Rai (2003) 12 SCC 395 = AIR 2004 SC 77; Punjab Singh v. State of Haryana 1984 Supp SCC 233 = AIR 1984 SC 1233; Anil Rai v. State of Bihar (2001) 7 SCC 318 = AIR 2001 SC 3173.

Where the ocular evidence is totally inconsistent with the medical evidence and the inconsistency is not reasonably explained, it will be sufficient not only to discredit the ocular evidence but also the entire case (vide Mani Ram v. State of U.P 1994 Supp (2) SCC 289 – 3 Judges).

(5) Ocular evidence to the effect that the deceased was shot at the back. But the post mortem doctor deposed that the entry wound was on the chest and the wound at the back was the exit wound. Circumstances showed that the P.M doctor was helping the accused who was a compounder in a Government hospital. Ocular evidence preferred to medical evidence (vide Adya Singh v. State of Bihar (1998) 6 SCC 439 = AIR 1998 SC 3011)

b) This was not a case where the common object of the unlawful assembly to commit murder among other offences as alleged by the prosecution and accepted by the trial Court as well as by the appellate Court, was altered by the Apex Court to justify the conclusion which it reached. 

THE CASE-LAW ON THIS POINT

I propose to deal with the principle of constructive liability under Section 149 IPC in some detail here.

PRINCIPAL OFFENDERS AND ACCESSORIES

8. Persons who are in any way connected with the perpetration of crimes, can be broadly divided into two classes -

A. Principal offenders – (are persons who take part in the actual execution of the crime by "counseling" or "procuring" or "commanding" the execution of the crime).
B. Accessories - (are persons who in any way assist the "principal offender" either "before" or "at the time of" or "after" the execution of the crime).
9. In a broader sense, the provisions in the Indian Penal Code dealing with constructive liability are Sections 34 to 38 in Chapter II, Sections 107 to 120B in Chapter V, Sections 141 to 160 in Chapter VIII and Sections 201 to 229A of Chapter XI. For the present, we are concerned with Section 149 IPC in Chapter VIII of IPC. Persons who are covered by Sections 34 to 38 of Chapter II of IPC and those covered by Section 149 in Chapter VIII IPC could, by and large, be termed as "accessories at the time of execution of the crime". Expressions such as "joint liability", "common liability", "constructive liability", "vicarious liability" etc. convey, more or less, the same connotation in the sphere of law. "Vicarious liability" is strictly the liability which a person incurs for the acts of his "servant" or "agent" committed in the course of employment as such. The most appropriate expression in this context of "joint liability" would be "constructive liability" which is used to denote the liability of a person for an offence which he has not actually committed but cannot escape from its responsibility. The person concerned becomes liable in law for the consequence of the act of another, despite the fact that he has not done it himself. Thus, an act committed by another person will be attributed to the accused if such an act is done "in furtherance of common intention falling under Section 34 IPC" or done "in prosecution of the common object falling under Section 149 IPC".

THE SCOPE AND AMPLITUDE OF SECTION 149 IPC

10. Section 149 is the answer to a question as to whether a person who actually did not participate in the crime but was only a member who shared the common object of an unlawful assembly, is liable if an offence was committed by another member of the unlawful assembly. The law presumes that such non-participating person also committed the crime in the same manner as if it was done by him alone.

SECTION 149 IPC
1 If an offence is committed by any member of an unlawful assembly (of 5 or more persons – S. 141 IPC) in prosecution of the common object (which may be any of the 5 categories as indicated in Section 141 IPC) of that assembly,

141: Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -

First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; (which expression should receive the larger meaning attributable to "offence" including one punishable under any special or local law as defined under Section 40 IPC - Vide para 38 of Manga @ Man Singh v. State of Uttarakhand (2013) 7 SCC 629 – Dr. B. S. Chauhan, F. M. Ibrahim Kalifulla – JJ ); or.

Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

OR


2 if such of the members of that assembly knew that the said offence is likely to be committed in prosecution of the said common object, every person who, at the time of committing that offence was a member of the said assembly, will be guilty of that offence.

While the first limb of Section 149 IPC envisages "the commission of an offence" by a member of an unlawful assembly in prosecution of the common object of that assembly, the second limb of the Section contemplates "knowledge" on the part of a member of the unlawful assembly regarding the likelihood of such offence being committed in prosecution of the said common object. 

11. The case-law in this connection can now be examined:

GENERAL

1. Section 149 prescribes the principle of "vicarious or constructive liability" on all the members of an unlawful assembly where an offence is committed by any member of such assembly in prosecution of the common object of that assembly or that such of the members of that assembly knew it that such an offence was likely to be committed. (vide para 8 of Mohan Singh v. State of Punjab AIR 1963 SC 174 = 1963 (1) Cri.L.J 100 – 5 Judges (B. P. Sinha, C. J. I. ; P. B. Gajendragadkar; K. N. Wanchoo; N. Rajagopala Ayyangar; T. L. Venkatarama Ayyar – JJ).

2. Once the Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such of the members of the assembly knew such an offence to be likely to be committed in prosecution of the said common object, every person who at the time of committing that offence, was a member of the said unlawful assembly, is to be held guilty of that offence. (vide para 10 of Lalji v. State of U.P. (1989) 1 SCC 437 = AIR 1989 SC 754 (Saikia – J ); Shiva Shankar Pandey v. State of Bihar (2002) 7 SCC 229 = AIR 2002 SC 3151 (P.Venkatarama Reddi – J ).

3. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly it may yet fall under S.149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of S.149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch C. J., in Sabed Ali's case, 20 Suth WR Cr 5 (supra) that when an offence is committed in prosecution of the common object, it would generally be an offence which the member of the unlawful assembly knew was way 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. The distinction between the two parts of S.149, Indian Penal Code 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 of S.149 as explained above 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. (vide para 6 of Mizaji v. State of U.P. AIR 1959 SC 572 = 1959 Cri.L.J. 777 – 3 Judges (J.L.Kapur –J ).

4. The knowledge contemplated by the second part of Section 149 IPC does not mean knowledge of mere possibility of the commission of the offence. The commission of the offence must be reasonably likely. (vide State of Assam v. Barga Dewani (1970) 3 SCC 236 = 1971 SCC (Cri) 54 3 Judges (S.M.Sikri, K.S.Hegde & I.D.Dua – JJ ).

5. An accused person whose case falls within the terms of Section 149 IPC cannot put forward the defense that he did not with his own hand commit the offence that was committed in prosecution of the common object of the unlawful assembly. (vide para 8 of SheoMahadeo Singh v. State of Bihar (1970) 3 SCC 46 = AIR 1970 SC 1492 (A.N.Ray – J ).

6. If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under S.302 without the aid of S.149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under S.302 read with S.149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under S.302 IPC would be committed in prosecution of the common object. In order to determine this question, it is necessary to refer to the injuries caused in some detail. (vide para 7 of Sarwan Singh v. State of Punjab (1978) 4 SCC 111 = AIR 1978 SC 1525 (P.S.Kailasam – J ).

7. Mohan Singh v. State of Punjab AIR 1963 SC 174 = 1963 (1) Cri.L.J 100 – 5 Judges (B. P. Sinha, C. J. I. ; P. B. Gajendragadkar; K. N. Wanchoo; N. Rajagopala Ayyangar; T. L. Venkatarama Ayyar – JJ ).

(Paragraphs 8 to 12 considers the different situations when the number of the persons constituting the unlawful assembly gets reduced to less than 5. Para 13 gives the distinction between "common intention" under Section 34 IPC and "common object" under Section 149 IPC).

The Constitution Bench observed as follows:-

"Where only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly. (vide para 8). (See also Sunder Singh v. State of Punjab AIR 1962 SC 1211 = 1962 (2) Cri.L.J. 290 – 3 Judges (P.B.Gajendragadkar – J ).

It may be that less than five persons may be charged and convicted under S 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make S.149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under S.149 it is not necessary that five or more persons must necessarily be brought before the Court and convicted. Similarly, less than five persons may be charged under S.149 if the prosecution case is that the persons before the Court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the Court along with unidentified an un named assailants or members composed an unlawful assembly, those before the Court can be convicted under S.149 though the un named and un identified persons are not traced and charged. (Vide para 9).

Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried then S.149 cannot be invoked. Even in such cases; it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the Trial Court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under S.149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under S.149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. (Vide para 9).

That inevitably takes us to the question as to whether the appellants can be convicted under S.302/34. Like S.149, S.34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by S.34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of combination of persons sharing the same common intention is one of the features of S.34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of S.34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action in concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which S.34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common intention required by S.34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor, 72 Ind App 148 : ( AIR 1945 PC 118 ), common intention within the meaning of S.34 implies a pre arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. (Vide para 13)".

7. Dalip Singh v. State of Punjab AIR 1953 SC 364 = 1953 Cri.L.J. 1465 – 3 Judges (Vivian Bose – J ).

(a) It is possible for a witness to say that "A", "B", "C", "D", "E" and some 10 or 15 others were the assailants. In that event if the evidence is otherwise accepted, it is possible to drop out "D" and "E" and still convict "A", "B" and "C" with the aid of Section 149 IPC. (Vide para 23).

(b) Common intention required by Section 34 IPC and common object required by Section 149 IPC being far from the same in a case where Section 149 IPC originally charged becomes inapplicable due to the total number of assailants falling short of 5, it is not possible for the Court to have recourse to Section 34 IPC without a charge under Section 34 even in the alternative. (Vide para 24).

But see Dahari v. State of U.P. (2012) 10 SCC 256 = AIR 2013 SC 308 (Dr.B.S.Chauhan – J ). Non-applicability of Section 149 IPC is no bar for the purpose of convicting the accused under Section 34 IPC, if the evidence discloses the commission of offence in furtherance of common intention of such accused. Both Sections 149 and 34 deal with a group of persons who become vicariously liable to be punished as sharers in commission of offence. Thus, in a case where the prosecution fails to prove that the number of the members of the unlawful assembly is 5 or more, the Court can simply convict guilty persons with the aid of Section 34 IPC, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question.

8. If the person concerned goes away and ceases to be a member of the unlawful assembly before the actual commission of the offence, no vicarious liability can be fastened on him under Section 149 IPC. (vide Nawab Ali v. State of U.P. (1974) 4 SCC 600 = AIR 1974 SC 1228 (H.R.Khanna – J ).

9. If the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence if it is proved that he was a member of the unlawful assembly and that the act was done by some other member of the said assembly in prosecution of the common object of the assembly. (Vide Ramu Gope v. Sttae of Bihar AIR 1969 SC 689 = 1969 Cri.L.J. 1063 – 3 Judges (J.C.Shah – J ).

Common object

1) Section 149 IPC postulates an assembly of five or more persons having a common object, namely, one of those objects named in Section 141 and then doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. There is a difference between common object and common intention. Though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two Sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning. (Vide Barendra Kumar Gosh v. Emperor AIR 1925 PC 1; Chikkrange Gowda v. State of Mysore AIR 1956 SC 731 = 1956 Cri.L.J. 1365 – 3 Judges (S.K.Das – J ).

2) Under Section 149 IPC a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the Section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. (Vide Nanak Chandh v. State of Punjab AIR 1955 SC 274 = 1955 Cri.L.J. 721 (SC) 3 Judges).

3) Even if it is to be assumed that the common object was only to rescue the two accused persons who were in the lock up, it is obvious that the use of violence was implicit in that object. (vide para 17 of K.C.Mathew v. State of Travancore Cochin AIR 1956 SC 241 = 1956 Cri.L.J. 444 (Vivian Bose –J ).

4) "under S.149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise". (Vide Gajanand v. State of U.P. AIR 1954 SC 695 – 3 Judges (Ghulam Hasan – J ).

5) Kartar Singh v. State of Punjab AIR 1961 SC 1787 = 1961 (2) Cri.L.J. 853 – 3 Judges ( Raghubar Dayal – J ).

(a) Where the Trial Court can legally find that the actual number of members in the assailants' party was more than 5, the said party will constitute an unlawful assembly even when only 3 persons have been convicted. (Vide para 11).

(b) The contention of the 3 Appellants that in a free fight each is liable for his individual act and not the acts of other members of the unlawful assembly, not accepted by the Supreme Court which placed reliance on Gore Lal v. Sttae of U.P. (Criminal Appeal No. 29/1954) decided by the Supreme Court on 15-12-1960 where in it was observed –

"When both parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is holly immaterial". (Vide para 14).

(c) When it is held that the appellants' party was prepared for a fight and had no right of private defense, it must follow that their intention to fight and cause injuries to the other party amounted to their having a common object to commit an offence and, therefore, constituted them members of an unlawful assembly. (vide para 14).

6) 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. "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. (Vide paras 22 and 23 of Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 = AIR 2002 SC 3633).

7) "Common object" is different from "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 5 or more persons act as an assembly to achieve that object. (vide paras 7 and 8 of Sunil Kumar v. State of Rajasthan (2005) 9 SCC 283 = AIR 2005 SC 1096).

8) Commission of overt act is not necessary on the part of a member of an unlawful assembly. (vide Para 13 of Kharuddinv. State of WB (2013) 5 SCC 753 = AIR 2013 SC 2354).

9) Mere presence or association with other members alone does not per se become sufficient to hold every one of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each of them intended or knew the likelihood of the commission of such an offending act. (vide Paras 22 and 23 of Ramachandran v. State of Kerala (2011) 9 SCC 257 = AIR 2011 SC 3581).

10) Once the court holds that certain accused persons formed an 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 for that offence. After such a finding it would not be open to 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. (Vide para 10 of Lalji v. State of U. P.(1989) 1 SCC 437 = AIR 1989 SC 754; Para 5 of Rameshwar Dayal v. State of M. P. (2002) 3 SCC 45 = AIR 2002 SC 754; Paras 26 to 28 of Jaishree Yadav v. State of U.P. (2005) 9 SCC 788 = AIR 2004 SC 444 (3) – 3 Judges).

11) Where a group of assailants who were members of an unlawful assembly proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for the 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 is not necessary for the prosecution to establish as to this specific overt act done by each accused. (Vide Chikkarange Gowda v. State of Mysore AIR 1956 SC 731 – 3 Judges; Chanda v. State of U. P. (2004) 5 SCC 141 = AIR 2004 SC 2451; para 17 of Sunil Kumar v. State of Rajasthan (2005) 9 SCC 283 = AIR 2005 SC 1096).

12) In a case under 149 IPC there need not be a prior meeting of minds. It is enough that each has the same object in view and that their number is 5 or more and they act as an assembly to achieve that object. (Vide Sukha v. State of Rajasthan AIR 1956 SC 513 = 1956 Cri.L.J.932 3 Judges (Vivian Bose – J ); Mannam Venkatadari v. State of A.P. (1971) 3 SCC 254 = AIR 1971 SC 1467 (C.A.Vaidyalingam – J ); Devi Lal v. State of Rajasthan (1971) 3 SCC 471 = AIR 1971 SC 1444 (A.N.Ray – J ).

13) Mutual fight – In a mutual fight there is no common object and the Court is not justified in convicting any accused by having recourse to Section 149 IPC. (vide Munir Khan v. State of U.P. (1970) 3 SCC 191 = AIR 1971 SC 335 (K.S.Hegde – J ); Kanbi Nanji Virji v. State of Gujarat (1970) 3 SCC 103 = AIR 1970 SC 219 (K.S.Hegde – J ).

THE SCOPE OF THE EXPRESSION "OTHER OFFENCE" IN SECTION 141 IPC

12. The expression "Other offence" occurring in clause "Third" of Section 141 IPC is not confined to "mischief" or "criminal trespass" in view of the definition of "offence" in Section 40 of IPC. The words "likely to cause death" occurring in Section 148 IPC is also an indicator to show that the rule of "ejusdem generis" has no application. (vide Manga @ Man Singh v. State of Uttarkhand (2013) 7 SCC 629 = 2013 Cri.L.J 3332 - Dr. B.S.Chauhan, F. M. Ibrahim Kalifulla – JJ ).

C O N C L U S I O N

12. This was a case in which both the parts of Section 149 IPC have been clearly established. As observed by the three-Judge Bench of the Supreme Court in para 6 of Mizaji v. State of U.P. AIR 1959 SC 572, when a body of persons heavily armed with deadly weapons set out to take vengeance on their advisories, someone is likely to be killed. The accused persons (including the appellants before the Supreme Court), had no contention at any stage before any Court, that the common object of the unlawful assembly was not to commit murder but was to commit grievous hurt with dangerous weapons, so as to warrant an alteration of the "common object" and the resultant alteration of conviction. On the contrary, the specific finding recorded even by the Supreme Court (concurring with that of the Courts below) was that the death of the deceased and the injuries sustained by the others, were caused by the accused persons. If so, the alteration of the conviction of the appellants from Section 302/149 IPC to Section 326/149 IPC, was clearly unwarranted in law. The conclusion reached by the Apex Court is without bearing in mind the profusion of precedential authority regarding the scope of "constructive liability" under Section 149 IPC. After having held that there was "indiscriminate attack" by the accused on the deceased and the other injured witnesses, it was not open to the Bench to look for any corresponding injury on the body of the deceased matching with the alleged user of the weapons by some of the accused persons so as to spell out a contradiction between medical and ocular evidence, particularly when the Courts below did not see any force in that argument. In the light of the case-law adverted to above, with due respect, my humble opinion is that the two-Judge Bench of the Apex Court erred in altering the conviction from Section 302/149 IPC to Section 326/149 IPC and in exempting the appellants from the sentence of imprisonment for life.

The author is a Former Judge, High Court of Kerala


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