http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:

Appeal (crl.) 241 of 1998

PETITIONER:

Chanda and Ors.

RESPONDENT:

State of U.P. & Anr.

DATE OF JUDGMENT: 29/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

Conviction of the accused-appellant was altered by

the Division Bench of the Allahabad High Court from

Section 302 read with Section 149 to Section 304 Part I

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

short 'IPC'). Life imprisonment as awarded by the Trial

Court was altered to 10 years imprisonment for the

altered conviction under Section 304 Part I IPC. The

Trial Court had not awarded any separate sentence for

the other offences.

Background facts alleged by the prosecution leading

to the trial are essentially as follows:

Hashim Khan (PW-1) lodged an FIR at about 1330

hours on 3.10.1977 in which the time of incident was

stated to be 1300 hours on the same day. Distance of

place of incident from police station was about one

mile. As per FIR, PW-1, the complainant is the resident

of village Lodhipur. The accused Chanda fired a shot at

his uncle in the year 1975, a case was registered

against him and that case was pending. Second time, in

the year 1976, Sayeed and accused Chanda fired a shot on

Qasim, the brother of the complainant. This case was

about to be proceeded for trial in the Court.

Accordingly, there was an old enmity between Qasim

(hereinafter referred to as 'deceased') and the accused.

Because of this enmity on 3.10.1977 at about 1.00 p.m.,

when deceased was coming back from Shahjahanpur city to

his native village Lodhipur, near the Check post at

Lodhipur accused-Chanda and his brothers accused Zakir

and Shakir sons of Shujat Ali and Abbas son of

Jameeluddin, Hameeduddin head of the village (Mukhia),

Zaheer Shah son of Ghafoor (of the same village) and

Nanneh alias Ishaq son of Ishtiayaq who is the brother-

in-law of Chanda were standing there. Accused Sartaj

and Chanda were holding country made pistol in their

hands. Accused Zaheer exhorted and asked others to take

Qasim, and he should not escape. Thereupon deceased

Qasim raised alarm and ran towards the city. All of a

sudden, Chanda fired a shot at him, which did not hit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

him. Thereafter, all the accused persons chased deceased

Qasim, and after some distance accused Zakir, Shakir,

Nanneh, Abbas and others caught hold of deceased and

Sartaj fired a shot at him from a close distance due to

which he fell down on the road. This incident was

witnessed by complainant (PW-1), Naim (PW-2) and Sajid

Ali of the same village and by-passers that sight

persons after shooting the gun went away towards

Lodhipur. The complainant came to police station by

putting Qasim on a Rickshaw in the injured condition.

The deceased breathed his last on 11.1.1978. He prayed

for the registration of the case and for appropriate

action.

On completion of investigation charge sheet was

placed. To substantiate its accusations 8 witnesses were

examined including PW-1 Hashim Khan, Naim (PW-2) and

Samiulla (PW-3) who claimed to be eye witnesses.

Accused persons pleaded innocence and stated that they

were falsely implicated due to enmity.

After considering the evidence on record the Trial

Court found that there was mistake in describing the

father's name of accused Sartaj. Accused-Zakir was

acquitted because he was a crippled person and in the

dying declaration of the deceased no role was ascribed

to him. Similar was the position so far as accused

Hameeduddin is concerned.

In appeal, the High Court altered the conviction so

far as the accused persons who were found guilty by the

Trial Court to Section 304 Part I IPC read with Section

149. Custodial sentence of 10 years was imposed.

Conviction in terms of Section 307 read with Section 149

was maintained.

Mr. U.R. Lalit, learned senior counsel appearing

for the appellants submitted that since Sartaj who is

supposed to have fired the gunshot he has been

acquitted, Section 149 cannot have any application.

Though the alleged occurrence took place on 3.10.1977,

the deceased died on 11.1.1978. In all nine injuries

were found at the time of post-mortem though at the

first instance one injury was noticed on his back. It

is not known as to what happened in between. According

to the medical evidence, the death was on account of

septicemia. Other injuries could have also attributed to

septicemia. It is not possible to arrive at a

conclusion, as injuries were difficult to be identified.

From the nature of the injury attributed to be the fatal

shot, it cannot be said that there was any intention or

knowledge about the injury. Therefore, Section 302 has

been rightly taken out as inapplicable. Consequently the

case is out of the scope of Section 299 and, therefore,

Section 304 Part I cannot have any application. There

is no concrete evidence to show that the accused persons

were the members of the unlawful assembly which had any

common object. Eight persons were named and it is not a

case of the prosecution that any other person committed

the murder. The definite case was that Sartaj accused

had fired fatal shot. That being so, after his acquittal

Section 149 cannot be applied and the Trial Court and

the High Court have lost sight of this fact. The

deceased was first taken to one hospital for treatment

and subsequently taken to another hospital and finally

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

post-mortem was conducted after his death in the third

hospital. What type of treatments were given and what

was the effect of different injuries has not been

established by the prosecution. Definite roles have not

been attributed to the accused persons. It was,

therefore, submitted that Courts below were not

justified in holding accused persons guilty.

Learned counsel for the State submitted that Sartaj

was not acquitted on the ground that he has not fired a

shot. The acquittal was on the ground of mistake in the

father's name. The evidence also shows that Chanda had

fired a shot which did not hit the deceased. Therefore,

clearly common object was killing of the deceased.

Apart from that other accused persons restrained the

deceased to facilitate the killing. Pellets were found

inside the body as clearly noted by the doctor.

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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

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 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 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

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 first part of the

offences committed in prosecution of the common object

would also be generally, if not always, 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).

The other plea that definite roles have not been

ascribed to the accused and therefore Section 149 is not

applicable, is untenable. A 4-Judge Bench of this Court

in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202)

observed as follows:

"Then it is urged that the

evidence given by the witnesses conforms

to the same uniform pattern and since no

specific part is assigned to all the

assailants, that evidence should not

have been accepted. This criticism

again is not well-founded. Where a crowd

of assailants who are members of an

unlawful assembly proceeds to commit an

offence of murder in pursuance of the

common object of the unlawful assembly,

it is often not possible for witnesses

to describe accurately the part played

by each one of the assailants. Besides,

if a large crowd of persons armed with

weapons assaults the intended victims,

it may not be necessary that all of them

have to take part in the actual assault.

In the present case, for instance,

several weapons were carried by

different members of the unlawful

assembly, but it appears that the guns

were used and that was enough to kill 5

persons. In such a case, it would be

unreasonable to contend that because the

other weapons carried by the members of

the unlawful assembly were not used, the

story in regard to the said weapons

itself should be rejected. Appreciation

of evidence in such a complex case is no

doubt a difficult task; but criminal

courts have to do their best in dealing

with such cases and it is their duty to

sift the evidence carefully and decide

which part of it is true and which is

not."

To similar effect is the observation in Lalji v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

State of U.P. (1989 (1) SCC 437). It was observed that:

"Common object of the unlawful assembly

can be gathered from the nature of the

assembly, arms used by them and the

behaviour of the assembly at or before

the scene of occurrence. It is an

inference to be deduced from the facts

and circumstances of each case."

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's case (supra) 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". It

is not really necessary to determine as to which of the

accused persons forming part of the unlawful assembly

inflicted what particular or specific injury in the

course of the occurrence. That the number of actually

convicted persons are less than five or that the case

projected certain one or more named persons as having

inflicted the injury but the same could not vis-a-vis

that person actually be proved to have actually

committed it or that such persons came to be acquitted

for some reason or other peculiar to him does not in any

manner prejudice the case of the prosecution or the

liability of others who formed the unlawful assembly to

be convicted for having carried out the object by merely

being the members of the unlawful assembly, as long as

the participation of others in furtherance of the common

object of the unlawful assembly remained sufficiently

substantiated.

The medical evidence is that death was the result

of vertebral injury. The prosecution has established

that the injury was on account of firing. Therefore, it

is not correct as contended by learned counsel for the

appellant that the death was due to septicemia and

cannot in any manner be attributed to the gunshot which

turned out to be fatal. It is significant that on post-

mortem three pellets were found on cutting open the

wound over the lower part of left leg. The medical

evidence fits in with the ocular evidence. The physical

consequences of the gunshot as noticed on post-mortem

when read with ocular evidence leaves no manner of doubt

about application of Section 304 Part I IPC. The

evidentiary effect of the fire-shot fired by accused

Chanda which missed the deceased has been clearly

established. The evidence on record clearly establishes

that there was an unlawful assembly whose common object

was to kill the deceased. That being so, acquittal of

accused Sartaj does not wipe out application of Section

149 IPC. The second part of Section 149 IPC clearly has

application to the facts of the case.

It cannot, therefore, be said that the prosecution

has failed to establish its accusations so far as

accused persons are concerned. We find no merit in this

appeal which is accordingly dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7