An assembly of 5 or more persons can be said to be unlawful assembly if the common object of that assembly is : To overawe Government by criminal force.
To resist the execution of law or legal process.
To commit an offence.
forcible possession or dispossession of any property; or
To compel any person to do illegal acts. (vide section 141 IPC) the object of section 149 is to prevent resort to criminal force by 5 or more persons to do any of the acts set out in this section. In order for an assembly to become unlawful assembly It needs to have 5 essential points :- 1. assembly must consist of 5 or more persons ( in accordance with section 141) 2. An assembly which is not unlawful in its inception does not become an unlawful assembly because of its refusal to obey to be dispersed. Moreover , it does not become unlawful by reason of its lawful acts exciting others to do unlawful act. 3. At the same time , an assembly which is lawful in its inception may become unlawful by subsequent act of its members . However, in Moti Das v. State of Bihar AIR 1954 SC 657 - it was held in its peculiar facts and circumstances of the case that , an illegal act of one or two members not , acquiesced in by others does not change the character of assembly from lawful to unlawful. 4. When two factions fight the members donot become members of unlawful assembly because they have no common object . An offence under section 141 cannot be said to have been committed when two opposite factions commit a riot and a fight , as it cannot be said that both parties shared any common object. 5.Section 149 Is an exception to the general principle of criminal law in the sense that a person can be convicted and sentenced on proof of his being a member of unlawful assembly sharing a common object. Notwithstanding whether he participated in the commission of the crime or not. IN order to be punished by the aid of section 149 or essential elements of 149 are :- 1. commission of offence by any member of unlawful assembly. 2. such offence must have been committed in prosecution of common object of the assembly . 3. Offence must be such as the members of the assembly knew to be likely committed in prosecution of common object. 4. There must be nexus between common object and offence committed. 5. It is not necessary to prove that each an everyone of the members had indulged in overt acts. The presence of the accused as a part of unlawful assembly and sharing of a common object is sufficient for conviction. 6. There should be proximity of time and place , both between the members and criminal acts of the members . However, it is not necessary that all members must continue together or help one another at the time of commission of a crime. 7. the words in prosecution of common object donot mean during prosecution of a common object of the assembly. Thus , if an unlawful assembly goes with a common object of theft and unknown to others , a member rapes someone , the offence of rape cannot be attributed to all 5. Similarly , If criminal act was fresh and independent transaction springing wholly from the mind of the doer , the others are not liable , merely because when it was done they were intending to be partakers with the doer in different criminal act. This section will not apply where several person intend to commit an act an one of them wholly independently commits another different act not envisaged by rest of the members (provided its not a probably consequence)
Mere presence cannot make a person liable for offences committed by unlawful assembly :-
Supreme Court of India
Madan Singh vs State Of Bihar on 2 April, 2004
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 shared the same or 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 the commission of 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 always 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 also vary on different members of the same assembly.
Common object and common intention are not synonymous :-
'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 and utterances of the members composing it the nature of arms carried , and from a consideration of all the surrounding circumstances. It may be gathered also from the course of conduct adopted by and behaviour of the members of the assembly at or before the actual conflict. 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. Common object may develop eo instanti : - 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.
Positive knowledge is necessary : -
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 as to 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 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 fall within first part being offences committed in prosecution of the common object, while at the same time, though not always falling within the second part, as offences which the members of the unlawful assembly knew to be likely to be committed by a person engaged in the prosecution of the common object and acting with the purpose of executing it. (See Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC 731.) As noted by this Court in Sukhbir Singh v. State of Haryana (2002 (3) SCC 327) common object in terms of Section 149 can develop at the spot. Existence of the object has to be considered at the time of actual occurrence and not necessarily from anterior point of time.
Supreme Court of India
Mizaji And Another vs The State Of U.P on 18 December, 1958
(placing reliance on Queen v. Sabid Ali, (1873) 20 W.R. 5)
" At first there does not seem to be much difference between the two parts of the section and I think the cases which would be within the first, offences committed in prosecution of the common object, would be, generally, if not always, within the second, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. But I think there may be cases which would come within the second part and not within the first." Jackson, J., held in the circumstances of that case that the assembly did not intend to commit nor knew it likely that murder would be committed. Pontifex, J., interpreted the section to mean that the offence committed must directly flow from the common object or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen. In the second part "know" meant to know that some members of the assembly had previous knowledge that murder was likely to be committed. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. - 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 pre-concert 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 Sabid Ali's case (1) that 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. 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 know to be likely to be committed in prosecution of the common object and falls within the second part.
Supreme Court of India
Raj Nath vs State Of U.P on 16 January, 2009
A plea which was emphasized by the appellant (in this case) relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was 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 attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The `common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be 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.
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 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 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.) IN chikkarange gowda , common object of assembly was to chastise the deceased but one member caused a fatal blow , Supreme court held conviction of accused under 302 read with 149 was wrong as there was no common object to cause murder of the deceased)
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 membership in the unlawful assembly may fasten vicariously criminal liability under Section 149".
Supreme Court of India
Gajanand And Ors. vs State Of Uttar Pradesh Ceveator: ... on 18 March, 1954
"under Section 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 behavior, 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 rise." (However , in case of a free fight Section 149 could not be invoked , there may not be a common object in a sudden fight but in a planned attack on victim presence of common object amongst the persons forming unlawful assembly can be inferred [vide Amrik singh v. State of Punjab , 1993 AIR SCW 2482) Emporer V. Kabil (1869) 3 Bengal LRI - A large body of men belonging to one faction way laid another body of men belonging to second faction and a fight ensued in the course of which a member of the first faction was wounded and retired to the side of the road , taking no further active part in affray. After his retirement , a member of section faction was killed. It was held that wounded man has ceased to be a member of the unlawful assembly when he retired wounded and thus cannot be made liable for subsequent murder read with section 149. Vithal v. State of Maharashtra (AIR 1983 SC 179 ) - IN this case , the accused persons were lying in wait at different places , splitting themselves in smaller groups so that they may not attract attention ; they joined together at the place of incident without much appreciable interval of time , they further attacked the deceased jointly and in succession . At one point of time they simultaneously attacked the deceased . Afterwards together they dragged the dead body. It was held that all the accused were animated by common object and had become members of unlawful assembly. Chandra Bhan v. State (1981 Cr LJ 196 ) - A common object of unlawful assembly was to murder a particular person. However, in the heat of the moment , one of the members murdered a peaceful intervener. It was held that in absence of any evidence to the contrary , it could not be presumed that a the remaining members of unlawful assembly know that murder of an innocent intervener was likely to be caused in in prosecution of the common object of murdering another particular person. Allaudin Mian v. State of Bihar (AIR 1989 SC 1456) - Where the common object was to kill A , and it was not to kill B and C , who were not any hindrance to the accused in achieving the common object . It was held that accused who did not injured or harmed B or C cannot be held liable for any injuries to them as a common object to hurt B and C was lacking. Soofi Abdul Mazid v. State (1989 Cr. LJ NOC 134 ) - Where common object of assembly was to take possession of mosque properties and one member of the assembly without any provocation or instigation by other members , committed a murder . It was held that other members of assembly could not be convicted of the offence of murder. Muhu Naicker v. State (AIR 1978 SC 1647) - Where a large crowd collected all of whom were not shown to be sharing the common object of the unlawful assembly , a stray assault by one member on a particular witness cannot be called an assault in prosecution of a common object. Chandra Bihari Gautam & Ors vs State Of Bihar on 15 April, 2002
Facts - The facts giving rise to the filing of the present appeals are that on 23rd July, 1994 at about 2.00 a.m. the appellants accompanied by 300-400 persons, armed with deadly weapons like guns, attacked the house of Ganesh Singh in Village Amarpur. Bholi Singh was shot dead and Nawlesh Singh, Shiv Narain Singh, Kedar Singh, Sanjay Singh and Ajay Kumar were burnt alive inside the room where they were hiding. According to the First Information Report, the informant, namely, Ganesh Singh (PW5) along with other members of the family had slept on the upper floor of his house in open. At about 1.30 a.m. in the night there was some drizzling whereupon female members of the family came down to the ground floor of the house and male members moved inside three separate rooms on the southern side of the upper floor of the house. In the western room facing north Nawlesh Singh, Sanjay Singh, Ajay Kumar, Kedar Singh, Shiv Narain Singh and Bholi Singh went to sleep. The informant (PW5) himself occupied the middle room and in the room on the eastern side his nephew Dhanju Kumar (PW1) slept. After about half an hour, the informant heard sounds of firing from northern side of the roof of his house and he got up. He heard one person saying that Nawlesh should come out and surrender as the person speaking claimed to be the officer-in charge of the police station. He heard Nawlesh saying that if the person seeking surrender was the officer-incharge of the police station, he should come to the front door of the house. Ganesh Singh (PW5) further stated that he saw some fire like substance and then raised an alarm that the extremists had arrived in Khakhi dress. The culprits set the room on fire in which Nawlesh was sleeping along with others. The fire was set with the help of petrol bombs. The occurrence was seen by the informant through a hole in the room where he was sleeping. Out of the mob of 300-400 persons, he identified 19 persons in the light of torch flashed by fire in the room including the appellants. All the aforesaid persons were named in his statement. In the entire process about 300-400 rounds of firing were made terrifying the whole of the locality. The motive behind the commission of the crime was stated to be the enmity of Manoj Kumar with the family of the informant.
Supreme Court held - " Section 149 has two parts. First part deals with the commission of an offence by a member of unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of the night and were armed with deadly weapons including the guns, and used petrol bombs proves beyond doubt that they knew that in prosecution of the alleged initial common object murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. The courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant.. In the case of Fatte & Ors. vs. State of U.P. [AIR 1979 SC 1504], , it was held that the mere fact that no overt act was attributable to the members of the unlawful assembly, was not sufficient to disprove the charge under Section 149 of the Indian Penal Code. However, the question regarding the applicability of the aforesaid section depends upon facts of each case. In the instant case the prosecution has established the existence of the common object of the unlawful assembly for attracting the applicability of Section 149 of the Indian Penal Code and the mere fact that no overt act has been attributed to each of the accused persons is not sufficient to hold that charge under Section 149 of the Indian Penal Code has not proved against them." Mangal Singh v. State of Bihar (2005 Cr. LJ 3755 SC) -During a land dispute , accused party fired at the deceased party after exchange of words . Many members except the two accused party were armed with fire arms. The unarmed members also did not commit any overt acts , like exhortation to armed members. It was held that these two person cannot be said to have shared a common object. (Under section 34 some active participation is necessary . But Under section 149 , the liability arises by reasons of mere membership of the unlawful assembly. Also , the common object of unlawful assembly must be the same as laid down under section 141 , but common intention under section 34 can be any intention) (The section does not require identification of each person , all that is required to be established is the common object of doing an act and a finding that 5 or more persons were the part of unlawful assembly . The fact that all of them cannot be identified will not affect the section)
Where a party exercises a right of private defence against unlawful assembly : -
In State of U.P. v. Mukunde Singh and Ors., [1994] 2 SCC 191, it has been held that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of the prosecution witnesses ought not to be rejected outrightly if the Court finds it probable that the accused might have acted in exercise of right of self-defence, the Court ought to proceed to consider whether they have exceeded the same.
In Thakhaji Hiraji v. Thakore Kubersing Chamansing and Ors., [2001] 6 SCC 145, this Court has held that Court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting prosecution case in its entirety for non-explanation of the injuries sustained by the accused persons is erroneous. This Court further held, "It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution.".
Vijayee Singh v. State of U.P, AIR (1990) SC 1459
In Vijayee Singh's case Court emphasised the difference between a flimsy or fantastic plea taken by the defence which is to be rejected altogether and a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version and would therefore indirectly succeed. "It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence which is reasonable".
In Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523 Supreme Court has held that where the accused received injuries during the same occurrence in which complainants were injured and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. Supreme Court of India
Kashi Ram And Ors vs State Of M.P on 17 October, 2001
So long as the accused person exercised his right of private defence , their assembly cannot be said to be unlawful assembly. Only those accused persons who shared common object of doing something in excess of right of private defence can be held liable. Usage and alteration of charges from section 149 to 34 and its nuances and technicalities : Supreme Court of India
Maina Singh vs State Of Rajasthan on 17 March, 1976
The appellant and four others were charged with offences under ss. 302/149 I.P.C., the appellant with having shot at the deceased and the other accused with giving blows
to the deceased with a sharp-edged weapon. The trial court acquitted the four accused but convicted the appellant under s. 302 read with s. 34, I.P.C. The High Court dismissed the
appeal of the State against acquittal as also the appellant's appeal against conviction.
In appeal to this Court, it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of
the common intention of the other accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the
appellant of an offence which he might have committed in his individual capacity. HELD: It was not permissible for the High Court to invoke s. 149 or s. 34, I.P.C.
(1) In a given case even if the charge disclosed only the named persons as co-accused and the prosecution witnesses confined their testimony to them, it would be
permissible to conclude that others, named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not
otherwise.
The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co-accused, and with no
other person. The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the
appellant along with any other unnamed person. So when the other four co-accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view
that there must have been some other person along with the appellant in causing injuries to the deceased. The appellant would accordingly be responsible for the offence, if any,
which could be shown to have been committed by him without regard to the participation of others The King v. Plummer which, , has been cited with approval by Supreme Court in some of its decisions. That was a case where there was a trial of an indictment charging three persons jointly with conspiring together. One of them pleaded guilty, and a judgment was passed against him, and the other two were acquitted. It was alleged that the judgment passed against the one who pleaded guilty was bad and could not stand. Lord Justice Wright held that there was much authority to the effect that if there was acquittal of the only alleged co-conspirators, no judgment could have been passed on the appellant, if he had not pleaded guilty, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him. In taking that view he made a reference to Harrison v. Errison where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict". Bruce J., who was the other judge in the case made a reference to the following statement in Chitty's Criminal Law while agreeing with the view taken by Wright J.,-
"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him." This Court approved Plummer's case (supra) in its decision in Topandas v. The State of Bombay. That was a case where four named individuals were charged with having committed an offence under s. 120-B I.P.C. and three out of those four were acquitted. This Court held that the remaining accused could not be convicted of the offence as his alleged co-participators had been acquitted, for that would be clearly illegal.
A similar point came up for consideration in Mohan Singh v. State of Punjab. There two of the five persons who were tried together were acquitted while two were convicted under s. 302 read with s. 149 and s. 147 I.P.C. In the charge those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led in the case was confined to them. The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intention of fatally assaulting the deceased. While examining the question of their liability, it was observed as follows,-
"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 section 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 section 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five."
In taking this view this Court took note of its earlier decisions in Dalip Singh v. State of Punjab, Bharwad Mena Dana v. State of Bombay and Kartar Singh v. State of Punjab.
The other case to which we may make a reference is Krishna Govind Patil v. State of Maharashtra. It noticed and upheld the earlier decision in Mohan Singh's case (supra) and after referring to the portion which we have extracted, it was held as follows,-
"It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence."
It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.
The decision in Krishna Govind Patil's case (supra) was followed by the decision in Ram Bilas Singh v. State of Bihar. After noticing and approving the view taken in Plummer's case (supra) and the decisions in Mohan Singh's case (supra) and Krishna Govind Patil's case (supra) this Court stated the law once again as follows,-
"The decisions of this Court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof. Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of s. 149 I.P.C. provided it comes to the conclusion that five or more persons participated in the incident."
The other decision to which our attention has been invited is Yeswant v. State of Maharashtra. The decision in Krishna Govind Patil (supra) was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself. But as the Court was not satisfied that the identify of the person who used the axe on Sukal was satisfactorily established as that of Brahmanand Tiwari, it took the view that the remaining accused could be convicted with the aid of s. 34 for the offences committed by them. This Court did not therefore disagree with the view taken in Krishna Govind Patil's case (supra) but purported to follow it in its decision and took the aforesaid view in regard to the identity of Brahmanand Tiwari for the purpose of distinguishing it from the case of Krishna Govind Patil (supra) where there was not a single observation in the judgment to indicate that persons other than the named accused participated in the offence and there was no evidence also in that regard.
The matter once again came up for consideration in Sukh Ram v. State of U.P. The Court referred to its earlier decisions including those in Mohan Singh's case (supra) and Krishna Govind Patil's case (supra) and, while distinguishing them on facts, it observed that as the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram's case (supra), and there was no evidence to the effect that the named accused had committed the crime with one or more other persons, the acquittal of the other two accused raised no bar to the conviction of the appellant under s. 302 read with s. 34 I. P. C. The decision in Sukh Ram's case (supra) cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court. That leaves the case of Dharam Pal v. State of U.P. (supra) for consideration. In that case four accused were tried with fourteen others for rioting. The trial court gave benefit of doubt to eleven of them and acquitted them. The remaining seven were convicted for the offence under s. 302/149 I.P.C. and other offences. The High Court gave benefit of doubt to four of them, and held that at least four of the accused participated in the crime because of their admission and the injuries. On appeal this Court found that the attacking party could not conceivably have been of less than five because that was the number of the other party; and it was in that connection that it held that there was no doubt about the number of the participants being not less than five. It was also held that as eighteen accused participated in the crime, and the Court gave the benefit of doubt to be on the side of safety, as a matter of abundant caution, reducing the number to less than five, it may not be difficult to reach the conclusion, having regard to undeniable facts, that the number of the participants could not be less than five. That was therefore a case which was decided on its own facts but, even so, it was observed as follows.-
"It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is no doubt about the identity of even one." Supreme Court of India
Amar Singh And Ors. vs State Of Punjab on 17 February, 1987
As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other poisons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an "unlawful assembly'' is that such assembly must be of five or more persons, as required under Section 141 IPC. In our opinion, the convictions of the appellants under Sections 148 and 149 IPC cannot be sustained. conviction for 302 simpliciter when charge was for 302 read with 149 of IPC :- After constitutional bench judgment in Wille William Slaney , if charge discloses overt act committed by a particular accsed , though the charge is for the offence under section 302 read with section 149 of IPC and the accused faced trial with the knowledge that the prosecution case is that he committed a particular overt act which caused the death , non framing of the distinct charge for the offence under 302 will not prejudice the accused. , even though the charged was framed under section 302 read with 149 . Non framing of that particular charge under 302 simplicter will not prejudice the accused if its proved that overt act of a particular accused which caused the death of the victim and evidence establishes that particular accused inflicted particular injury which caued the death , he could definitely be convicted for the offence under S. 302 simpliciter . Even though there is complete absence of a specific charge of 302 simpliciter and charge is for the offence of 302 r/w 149 IPC. (Position of conflict between Nanak Chand v. State of Punjab , Suraj Pal v. State of UP was resolved in Willie Willam Slaney v. State of MP)
In Marachalil Pakku and Anr. v. State of Madras AIR 1954 SC 648 seven accused were charged under Section 302 r/w Section 149 IPC. The trial court convicted two appellants along with five others of having constituted an unlawful assembly and committed murder and they were convicted under Section 302 r/w Section 149 IPC. The High Court, on appeal, gave benefit of doubt to five accused and acquitted them. In the appeal before this Court, it was argued that the said five accused having been acquitted and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the common object, the three Judge Bench of this Court said:-
"We have not been able to understand how the High Court could acquit these persons having held that the evidence of P.Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable. On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 149, I.P.C."
In Achhey Lal v. State of U.P. AIR 1978 SC 1233 as many as 15 named persons had taken part in the assault on the deceased. 14 accused had been acquitted by the High Court but the conviction and sentences awarded to the appellant by the Sessions Judge were upheld. This Court held that there is no finding by the High Court that after acquittal of the accused the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified, the provisions of Sections 149 and 147 cannot be invoked for convicting the sole accused as no individual act was assigned to him.
In Nallabothu Venkaiah vs. State of A.P. reported as (2002) 7 SCC 117, the Supreme Court was faced with two questions of law. Firstly, whether the appellant could be convicted under Section 302 IPC without the aid of Section 149 IPC, in the absence of any substantive charge under Section 302 IPC. Secondly, whether the appellant could be convicted under Sections 302/149 IPC on selfsame evidence on the basis of which other accused were acquitted
Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges: (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved.
In Koppula Jagdish @ Jagdish vs. State of A.P. reported as (2005) 12 SCC 425, three accused persons were charged under Section 302 read with Section 34 IPC for sharing a common intention to commit the murder of the victim. The trial court convicted all the three accused. In the appeal, the High Court acquitted two of the accused and the conviction of the third accused was modified from Section 302 read with Section 34 IPC to Section 302 IPC simpliciter. In the above facts, the Supreme Court observed as under:-
"3. Undisputedly, all the three accused persons were charged under Section 302 read with Section 34 IPC for sharing common intention to commit murder of the victim. The other two accused persons as stated above, have been already acquitted by the High Court. There is neither any allegation nor evidence that the appellant alone inflicted all the injuries or the fatal one. This being the position, the appellant could not have been convicted under Section 302 simpliciter but could have been convicted only with the aid of Section 34 IPC, which also is not possible in the case in hand as the other two accused persons with whom he could have shared the common intention have been already acquitted by the High Court. In our view, the High Court was not justified in convicting the appellant under Section 302 IPC."
In Annareddy Sambasiva Reddy & Ors. Vs. State of Andhra Pradesh reported as (2009) 12 SCC 546, placing reliance on its earlier decisions in Surajpal (supra), Pandurang, Tukia and Bhillia vs. State of Hyderabad reported as (1955) 1 SCR 1083 and Nanak Chand (supra) referred to Section 464 of the Cr.P.C., which deals with the fact of omission of framing, or absence of, or error in charge, the Supreme Court held that no straightjacket formula can be applied and every case must depend on its merits. The essential and important aspect to be kept in mind is:- has omission to frame a specific charge resulted in prejudice to the accused.
In Nanak Chand vs. State of Punjab reported as AIR 1955 SC 274, the appellant along with six other co-accused had been charged for committing offences under Section 148 and Section 302 read with Section 149 IPC and the trial court had acquitted three of the six accused while convicting the appellant therein and three others for the offences referred to hereinabove. In the appeal filed against the said judgment, the High Court had acquitted three of the remaining accused of the offence under Section 302 IPC read with Section 34 IPC but convicted the appellant alone for the substantive offence under Section 302 IPC. In view of the fact that no separate charge had been framed by the trial court under Section 302 IPC, the Supreme Court held that the High Court could not have convicted the appellant for the said offence. Rejecting the plea of the prosecution that non-framing of a substantive charge against the appellant was an error in framing of charge that was a curable irregularity, it was held as follows:-
"13...................In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed. Section 232 of the Code of Criminal Procedure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable we are satisfied that, in the circum- stances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code.
14. By framing a charge under section 302, read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case............."
(emphasis added)
In Suraj Pal vs. State of U.P. reported as AIR 1955 SC 419, where twenty accused including the appellant therein had been charged with offences under Sections 147, 323/149, 307/149 and 302/149 IPC and held guilty by the trial court, in the appeal, the High Court set aside the conviction of ten of the co-accused. As for the remaining ten co-
accused, the High Court opined that nine of them could only be convicted under Sections 323/149 IPC, thus leaving the appellant therein, who alone was held guilty of the substantive offence under Section 307 and Section 302 IPC. The said decision was challenged by the appellant before the Supreme Court that held that once specific charges had been framed, which referred to all the accused having acted together with a common intention of firing upon the deceased and there was no amendment to the charge, the appellant could not have been convicted for the substantive charge for the offence under Sections 302 and 307 IPC as if he was acting alone. Holding that such a course of action was not legitimate, the Supreme Court observed as follows:-
"4......................The appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself on the footing of his being the author of the pistol fire. In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, Indian Penal Code.
5. Further, the medical evidence indicates that P.W. 2 as well as the deceased Surajdin had gun-shot wounds on their person. The evidence of the Doctor is to the effect that these wounds may have been caused by a country pistol which, it is alleged, the appellant had in his hand. It has been suggested on behalf of the defence that the Medical Officer was not competent to speak about it and that if the prosecution wanted to rely thereupon, they should have called an arms expert to speak to the same. Whether or not this comment is legitimate, it is clear that if the appellant is to be found directly responsible for inflicting the wounds, noted as gun-shot wounds by the Medical Officer, he might well have availed himself of the opportunity to elucidate, by cross-examination or positive defence, the nature of the firearm which would have caused the actual injuries found on the bodies of PW-2 and of deceased Surajdin. In all the circumstances above noticed, we are satisfied that the absence of specific charges against the appellant under sections 307 and 302, Indian Penal Code has materially prejudiced him. We must accordingly set aside the convictions and sentences of the appellant under sections 307 and 302 of the Indian Penal Code.............." (emphasis added) (Delhi High court Judgment in Sadak Hussain v. State NCT of Delhi decided on 15th may 2019 reiterated the similar position)
Supreme Court of India
Sherey And Others vs State Of U.P. on 27 September, 1991
when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstances which lends assurance. From that point of view it is safe only to convict the above-mentioned nine accused whose presence is not only consistently mentioned from the stage of F.I.R. but also to whom overt-acts are attributed. The fact that they were armed with weapons like swords and axes and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged. Supreme Court of India
Kutumbaka Krishna Mohan Rao And ... vs Public Prosecutor, High Court Of ... on 9 January, 1991
the Court generally to fix the presence of an unlawful assembly, would first scrutinise the evidence of injured witness and if the same is corroborated by the medical evidence that can be accepted as against those accused who caused injuries and they can be held to be members of the unlawful assembly. This is on the ground that the witnesses at least, would be in a position to identify their own assailants. Fundamental principles in case of mammoth rioting :-
Madras High Court
In Re: Arulanandu And Ors. vs Unknown on 23 August, 1951
The first is that notwithstanding the large number of the rioters or of the persons put up in Court for rioting, and the consequent difficulty for the prosecution to name the specific acts attributed to each of the accused the Court must see to it that all the ingredients required for unlawful assembly and rioting are strictly proved by the prosecution before convicting that particular accused. The fact that there were a thousand rioters, and 122 accused before the Sessions Judge, will not take away from the prosecution even an iota of the responsibility of proving them. It may be the misfortune of the prosecution. But the misfortune of the prosecution should never be allowed to become the misfortune of the accused. Just as the culprits in undetected crimes escape punishment, these unproved persons also must be unhesitatingly acquitted.
Secondly, spectators, wayfarers, etc., attracted to the scene of the rioting by curiosity, as generally happens in the country-side when a riot or affray is going on, should not be, by reason of their mere presence at the scene of rioting and with the rioters, held to be members of the unlawful assembly or rioters. But, of course, if they are proved to have marched with the rioters for a long distance, when the rioters were shouting tell-tale slogans and pelting stones, it will be for them to prove their innocence under Section 108 of the Indian Evidence Act. The third is that it will be very unsafe, in the case of such large mobs of rioters to rely on the evidence of 'a single witness' speaking to the presence of an accused in that mob for convicting him, especially, when no overt act of violence, or shouting of slogans, or organising the mob, or giving orders to it, or marching in procession with it, or other similar thing is proved against him. In a big riot, like this, by hundreds of persons, it is very easy even to mistake one person for another, and implicate honestly really innocent persons, and even to mistake persons seen elsewhere as having been seen there. An ordinary rule of caution and prudence will require that an accused identified only by one witness, and not proved to have done any overt act, etc., as described above, should be acquitted, by giving him the benefit of the doubt.
The fourth principle to be observed in such cases is that where there are such acute factions, one based on agrarian disputes and troubles, another on political wrangling and rivalry, and a third on caste division, or the division of the haves and the have-nots, the greatest care must be exercised before believing the evidence of a particular witness belonging to one of these factions against an accused of the opposite views. This principle becomes of special importance when there are no overt acts, etc., proved and when there are only one or two witnesses speaking to the presence of the accused among the rioters, and they belong to the classes or factions opposed to the accused.
The fifth principle to be observed is that mere 'followers' in rioting deserve a much more lenient sentence than leaders who mislead them into such violent acts, by emotional appeals, slogans and cries.
Mahadeva Sharma & Others vs State Of Bihar on 21 April, 1965 (Constitution Bench)
Is it obligatory to charge a person under s. 147 or s. 148 before s. 149 can be utilized ?
Section 149 does not state this to be a condition precedent for its own application. No other section prescribes this procedure. Sections 146 and 149 represent conditions under which vicarious liability arises for the acts of others. If force or violence is used by a member in the prosecution of the common object of the, unlawful assembly every member of the assembly is rendered guilty of the offence of rioting and is punishable for that offence under s. 147. The offence of rioting must of course, occur when members are charged with murder as the common object of the unlawful assembly. Section 148 creates liability on persons armed with deadly weapons and it is a distinct offence. It need not detain us. If a person is not charged under s. 147 it does not mean that s. 149 cannot be used. When an offence (such as murder) is committed in prosecution of the common object of the unlawful assembly or the offence is one which the members of the assembly knew to be likely to be committed in prosecution of the common object, individual responsibility is replaced by vicarious responsibility and every person who is a member of the unlawful assembly at the time of the committing of the offence becomes guilty. It is not obligatory to charge a person under s. 143, or s. 144 when charging him with S. 147 or s. 148. Similarly, it is not obligatory to charge a person under s. 143 or s. 147 when charging him for an offence with the aid of s. 149. These sections are implied. It may be useful to add a charge under s. 147 and 148 with charges under other offenses of the Penal, Code read with s. 149. but it is not obligatory to do so. A person may join an unlawful assembly and be guilty under s. 143 or 147 or 148 but he may cease to be its member at the time when the offence under s. 302 or some other offence is committed. He would not in that event be liable for the other offence for S. 149 would not apply to him. The present case is not of that kind. The fallacy in the cases which hold that a charge under s. 147 is compulsory arises because they overlook that the ingredients of s. 143 are implied in s. 147 and the ingredients of s. 147 are implied when a charge under s. 149 is included. An examination of s. 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offenses under ss. 143 and 147 must always he present when the charge is laid for an offence like murder with the aid of s. 149, but the other two charges need not be framed -separately unless it is sought to secure a conviction under them. It is thus that s. 143 is not used when the charge is under S. 147 or s. 148, and s. 147 is not used when the charge is under S. 148. Section 147 may be dispensed with when the charge is under s. 149 read with an offence under the Indian Penal Code. If a charge bad been framed under S. 147 or 148 and that charge had failed against any of the accused then s. 149 could not have been used against him. The area which is common to ss. 147 and 149 is the substratum on which different degrees of liability are built and there cannot be a conviction with the aid of s. 149 when there is no evidence of such substratum. It is quite a different thing to say that to lay down this substratum one must frame first a charge under s. 143, then a charge under s. 147 and then a charge under s. 149. The last named section is not dependent on the other because the others are implied in circumstances in which s. 149 is used. There can be proof under s. 149 of the existence of an unlawful assembly, of the common object and of the part -played by the unlawful assembly or any of its members, same as under s. 143 or S. 147 or s. 148. There may be additional charges under these sections to guard against failure of the charge for an offence read with s. 149 but the other charges cannot be regarded as condition precedent.
Supreme Court of India
Tehseen S. Poonawalla vs Union Of India on 17 July, 2018
In view of the aforesaid, we proceed to issue the following guidelines:-
A. Preventive Measures
(i) The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.
(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today's fast world of data collection.
(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.
(v) The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.
(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.
(viii) The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.
(x) It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.
(xii) The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.
B. Remedial Measures
(i) Despite the preventive measures taken by the State Police, if
it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.
(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.
(v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.
(vi) To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.
(vii) The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.
(viii) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.
(ix) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the
district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu , the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
The measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. Reports of compliance be filed within the said period before the Registry of this Court.
We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of 21 (2011) 6 SCC 405 chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”. The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring with the voices of the people.” The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would, in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.
Apart from the directions we have given hereinbefore and what we have expressed, we think it appropriate to recommend to the legislature, that is, the Parliament, to create a separate offence for lynching and provide adequate punishment for the same. We have said so as a special law in this field would instill a sense of fear for law amongst the people who involve themselves in such kinds of activities. There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society.