Supreme Court of India

CHANDA AND ORS.versusSTATE OF U.P. AND ANR.

Citation: 2004 INSC 327
Decided: 29 April 2004
Disposal: Dismissed
Bench: DORAISWAMY RAJU

Holding

Section 149 IPC applies to all members of the unlawful assembly who shared the common object of killing the deceased, irrespective of specific role attribution or the acquittal of the individual who fired the fatal shot.

Summary

The case involved eight accused who formed an unlawful assembly and attacked the deceased Qasim, resulting in his death. The trial court convicted the accused under Section 302 read with Section 149 IPC, but later the High Court altered the conviction to Section 304 Part I read with Section 149 and sentenced them to ten years’ imprisonment. The appellants argued that Section 149 could not apply because the person who fired the fatal shot (S) was acquitted and because no specific roles were assigned to each accused. The Supreme Court held that liability under Section 149 arises from the existence of a common object to kill the deceased, not from proof of an overt act by each individual, and that the acquittal of one shooter does not defeat the application of Section 149 to the remaining members. The Court further clarified that a common object can be inferred from the conduct, arms, and circumstances, and that specific role attribution is unnecessary for conviction. Consequently, the appeal was dismissed and the convictions under Section 304 Part I read with Section 149 were upheld.

Issues considered

The applicability of Section 149 IPC when the alleged shooter who fired the fatal shot was acquitted.
Whether a common object to kill the deceased was established among the members of the assembly.
Whether mere presence in an unlawful assembly without proof of an overt act suffices for conviction under Section 149.
The necessity (or lack thereof) of attributing specific roles to each accused for liability under Section 149.
The attribution of the cause of death to the gunshot injury for purposes of Section 304 IPC.

Legislation cited

Indian Penal Code, 1860s. 141, s. 149, s. 302, s. 304(Part I), s. 307

Subjects

Section 149 IPCunlawful assemblycommon objectconstructive liabilityculpable homicide not amounting to murderrole attributionevidenceIndian Penal Codecriminal law

Judgment

CHANDA AND ORS. A
v.
STATE OF U.P. AND ANR.

APRIL 29, 2004

[DORAISWAMY RAJU AND ARIJITPASAYAT, JJ.)

Penal Code, 1860:

Section 149-Prosecution of common object-Liability of members of
an unlawful assembly-Proof in respect of-Held: Mere presence in an C
unlawful assembly could not render a person liable unless there was common
object, that he was actuated by it and that it, was one of those set out in S.
141 /PC-However, proof of an overt act not necessary-But common object
once formed need not continue to be the same-The effect of S. 149 may be
different on different members of the same assembly. D
Section 149-Definite roles-Not ascribed to each accused-Effect of-
Held: It is not necessary to ascribe definite roles to each accused to attract
s. 149.
Section 149-Applicabi/ity of-Eight accused persons attacked the E
deceased--C and S held pistols-C fired a shot at deceased but it did not
hit him-But the shot fired by S was fatal-Trial court acquitted Sas his
father's name was described wrongly and convicted other accused perso ..·s-
High Court altered the conviction to one under S. 304 Part I read with S.
149-Effect of-Held: The evidence on record clearly established that there
was an unlawful assembly whose common object was to kill the deceased- F
-That being so acquittal of S did not wipe out application of S. 149-
Conviction and sentence upheld

"Common object" and "common intention "-Distinction between-
Explained.
G
Words and Phrases:

"Common object "-Meaning of-In the context of S. 141 of the Penal
Code, 1860.

885 H
886 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A "Jn prosecution of common object" and "knew"-Meaning of-In the
context of S.149 of the Penal Code, 1860.

According to the prosecution, eight persons had caused the death of the
deceased. Appellants-accused C and S, were holding pistols. C had fired a
shot at the deceased, which did not hit him. S fired a shot at the deceased,
B which proved fatal.

The trial court convicted the appellants under Section 302 read with
Section 149 of the Penal Code, 1860. However, S was acquitted as there was
a mistake in describing his father's nam<!. Accused Z was acquitted because
he was a crippled person and in the dying declaration of the deceased no role
c was ascribed to him. Similar was the position as far as accused H was
concerned.

In appeal, the High Court altered the conviction so far as the accused
persons who were found guilty by the Trial Court, to one under Section 304
D 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.
Hence the appeal.

On behalf of the appellant-accused, it was contended that since S who
fired the fatal shot at the deceased, was acquitted, Section 149 IPC could not
E have any application; that definite roles had not been attributed to the accused
persons and, therefore, the courts below were not justified in holding the
accused person guilty.

Dismissing the appeal, the Court

F HELD: 1.1. 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 their object is one of those set out in Section 141 of the
Penal Code, 1860. Where common object of an unlawful assembly is not proved,
the accused person cannot be convicted with the help of Section 149. The
crucial question to determine is whether the assembly consisted of five or
G more persons and whether the said persons entertained one or more of the
common objects, as specified in Section 141. [892-C-D)

t.2. 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
H be common to the persons, who compose the assembly, that is to say, they
CHANDA v.STATE OF U.P. 887
should all be aware of it. A "common object" is different from a "common A
intention" as it does not require a prior concert and a common meeting of
minds before the attack. (892-E; 893-A)

1.3. 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 B
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, IPC, has 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 C
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 a 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 D
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. [892-E-H; 893-A)

2.1. 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 E
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 behavior of the members at or near F
the scene of the incident. [893-B-C]

2.2. It is not necessary that the intention of 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 G
subsequently become unlawful. In other words, it can develop during the course
of incident at the spot eo instante. (893-D-E]

3.1. Section 149 of the Penal Code, 1860, 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 H
888 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A 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 a member. Even ifthe offence
committed is not in direct prosecution of the common object of the ass.embly,
it may yet fall under ~ection 141, if it can be held that the offence was such
B as the members knew, was likely to be committed and this is what is required
in the second part of the Section. (893-E-G]

3.2. 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
C therefrom. (893-H; 894-A]

4.1. The word "knew" used in the second limb of Section 149 implies
something more than a possibility and it cannot be made to bear the sense of
'might have been known'. Positive knowledge is necessary. (894-B]

D 4.2. 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 first part. The distinction between the two parts
/ · of Section 149 cannot be ignored or obliterated. In every case it would be an
/E issue to be determined, whether the offence committed falls within the first
part or it was an offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object and falls within
the second part. However, there may be cases which would be within the first
part of the offences committed in prosecution of the common object but would·
F 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. (894-B-E)

Chikkarange Gowda v. State ofMysore, AIR (1956) SC 731, relied on.

5.1. The plea that definite roles have not been ascribed to the accused
G and, therefore, Section 149 is not applicable, is untenable. (894-E]
Masalti v. State of U.P., AIR (1965) SC 202, relied on.

5.2. It is not really necessary to determine as to which of the accused.
H person forming part of the unlawful assembly inflicted what particular or
CHANDA v.STATEOFU.P. [PASAYAT,J.] 889
specific injury in the course of the occurrence. [895-E) A
Siate of U.P. v. Gan Singh, {1997) 3 SCC 747, relied on.

6. That the number of actually convicted persons is 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 B
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 C
of the common object of the unlawful assembly remained sufficiently
substantiated. {895-E-G)

7. The medical evidence is that death was the result ofvertebral injury.
The prosecution has established that the injury was on account offiring. The
me4ical evidence fits in with the ocular evidence. The physical consequences D
of the gunshot as noticed on postmortem when read with ocular evidence, leave
no manner of doubt about application of Section 304 Part I IPC. 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 S
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. [895-H; 896-A-C] E

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 241 of
1998.

From the Judgment and Order dated 24.7.97 of the Allahabad High Court
in Crl. A. No. 1867of1980. F
U.R. Lalit, M. Mohsin Israily and M.U. Khan for Ms. Sangeeta Kumar
for the Appellants.

Prashant Chaudhary for J.K. Bhatia for the Respondents.
G
The Judgment of the Court was delivered by

. 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 H
890 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A was altered to I 0 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:
B
Hashim Khan (PW-I) lodged an FIR at about 1330 hours on 3.10.I977
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- I, the complainant is the resident of village Lodhipur. The accused
Chanda fired a shot at his uncle in the year I975, case was registered against
C him and that case was pending. Second time, in the year I 976, Sayeed and
accused Chanda fired a shot at 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 l.00 p.m., when deceased
D 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 lshtiayaq, who is the brother-in-law
of Chanda, were standing there. Accused Sartaj · and Chanda were holding
E 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 sh;)t
at him, which did not hit him. Thereafter, all the accused persons chased
deceased Qasirn, and after some distance accused Zakir, Shakir, Nanneh,
F 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-I}, Nairn (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
G 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-I Hashim Khan,
H Nairn (PW-2) and Samiulla (PW-3) who claimed to be eye witnesses. Accused
CHANDA v. STATE OF U.P. [PASAYAT, J.) 891
persons pleaded innocence and stated that they were falsely implicated due A
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 B
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. C
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 D
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 E
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. F
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 short 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 post mortem was conducted after his G
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.
H
892 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A· 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 we,re found inside the body as
B 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
C 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
D said persons entertaine~ one or more of the common objects, as specified.in
Section 141. It cannot be laid down as a general proposition oflaw 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
E 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
F no m~ans 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 has to be strictly construed as equivalent to 'in
G order to attain the common object'. It must be im'mediately connected with the
common object by virtue of the nature of the object. There must be community
of object and ttie 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
H prosecution of their common object may vary not only according to the
CHANDA v. STATE 0!7 U.P. [PASA Y AT, J.] 893
information at his command, but also according to the extent to which he A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
894 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A entertained in the human mind, and it being merely a mental attitude, no direct
evidence can be available and, like intention, has g~nerally 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
B 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 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,
C 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
D 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
E prosecution of the common object. (See Chikkarange Gowda and Ors. 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,
F · 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
G 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
H
• CHA!'JDAv.STATEOFU.P. [PASAYAT, J.] 895
...J
• the actual assault. In the present case, for instance, several weapons A
were carried by different members of the unlawful assembly, but it
appears that the guns were used and that was enough to kill 5
I

-
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 B
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. State of UP., [1989] 1 SCC C
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." D
In State of UP. 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 E
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 is 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- F
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 G
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 H
896 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A 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 mqrtem when read
with ocular evidence, leave no manner of doubt about application of Section
B 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
C 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.

D v.s.s. Appeal dismissed.

L
1

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