DEV KARAN @ LAMBUversusSTATE OF HARYANA

40                       [2019]
              SUPREME COURT     11 S.C.R. 40
                             REPORTS                       [2019] 11 S.C.R.


A                         DEV KARAN @ LAMBU
                                        v.
                            STATE OF HARYANA
                       (Criminal Appeal No. 299 of 2010)
B                              AUGUST 06, 2019
          [SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
            Penal Code, 1860 – ss.148, 302, 307, 325 r/w. s.149 and
     s.449 – Murder – Complainant case was that seven persons (all
C    accused) entered the under-construction house of the victim-
     deceased armed with deadly weapons and attacked the victim – All
     the accused hit the victim indiscriminately with their respective
     weapons – Consequent to which victim died – PW-7,8 also received
     injuries – FIR was registered – Trial Court convicted all the six
     accused persons u/ss. 148, 302, 307, 325 r/w. 149 IPC and s.449
D    IPC – One accused person (A-1) died during the Trial – High Court
     dismissed the appeals – Against the order of the High Court, A-2
     and A-7 did not prefer appeal, however, A-3, A-4, A-5 and A-6
     preferred appeals before the Supreme Court – A-4 and A-6
     contended that since no charges were framed u/s. 141 IPC, the
E    unlawful assembly did not exist and therefore, s.149 IPC could not
     have been invoked – A-5, inter alia, made a plea of mistaken identity
     – Held: It has nowhere been said in the judicial pronouncements
     that s.141 IPC should be specifically invoked or else consequences
     would be fatal – As long as the necessary ingredients of an unlawful
     assembly are set out and proved, as enunciated in s. 141 IPC, it
F    would suffice – The actions of an unlawful assembly and the
     punishments thereafter are set out in the subsequent provisions, after
     s.141 IPC, and as long as those ingredients are met, s. 149 IPC can
     be invoked – In the instant case, the A-1 (since deceased) not only
     inflicted a blow with a bahi, but also raised a lalkar that the deceased
G    should be killed – All other accused also inflicted blows on the
     deceased – The common object was, thus, writ large on its face –
     Both the Courts below have found that version given by PW-7 and
     8 evoked confidence, who were themselves injured in the incident –
     Insofar A-5 is concerned, PW-8 had identified him and all the other
     accused – Further, A-3, A-4, A-5 were arrested on the same day and
H
                                       40
       DEV KARAN @ LAMBU v. STATE OF HARYANA                               41


recovery of weapons was also made due to disclosure statement of           A
A-5 – Thus, plea of mistaken identity cannot be accepted – All four
appeals by the accused dismissed.
      Dismissing the appeals, the Court
        HELD: 1. This Court is unable to come to a conclusion
that there was any fatal flaw in the non-inclusion of Section 141 of       B
the IPC while framing charges, as would render the complete
trial illegal, or that it can result in a finding that there would be no
occasion to invoke Section 149 of the IPC. A-4 and A-6 appears
not to have appreciated the judicial pronouncements in the correct
perspective, as what is necessary for invoking Section 149 of the          C
IPC has been set out in these judgments. It has nowhere been
said that Section 141 of the IPC should be specifically invoked or
else the consequences would be fatal. As long as the necessary
ingredients of an unlawful assembly are set out and proved, as
enunciated in Section 141 of the IPC, it would suffice. The actions
of an unlawful assembly and the punishment thereafter are set              D
out in the subsequent provisions, after Section 141 of the IPC,
and as long as those ingredients are met, Section 149 of the IPC
can be invoked. [Para 21] [52-F-G; 53-A]
       2. In the factual context, it is observed that whatever be
the altercation or argument between a friend of deceased and               E
the seven accused, it resulted in the seven accused armed with
deadly weapons coming to the site of the incident, being the under-
construction house of the deceased, and all of them inflicting blows
on the deceased. Accused no.1, since deceased, not only inflicted
a blow with a bahi, but also raised a lalkar that the deceased             F
should be killed. All the other accused also inflicted blows on
the deceased. Even the interventions of PW-7 & PW-8 did not
result in their desisting from such assault, but on the other hand,
even PW-7 and PW-8 received injuries as a result thereof. This
is not a case where the common assembly proceeded to the site
and subsequently decided to inflict the blows. It is not as if anyone      G
incidentally joined the group, but all of them came together with
a clear intent and acted upon that intent. It was not as if any of
the accused ran away from the site, or ceased to have the intent
to inflict blows, which resulted in the death of the deceased. The
common object is, thus, writ large on its face. There were, at             H
42            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A    least, 24 injuries inflicted on the deceased, and both the
     courts below have found that the version given by PW-7 and PW-
     8 evoke confidence, who were themselves injured in the incident.
     Minor discrepancies were, thus, found to be a natural cause, where
     so many persons attacked suddenly. The accused were known
     to the eye-witnesses and, thus, there can be no case of mistaken
B
     identity. There was no unexplained delay in filing the FIR. There
     is no merit in the case sought to be made out on behalf of the
     accused Nos.4 & 6. [Paras 22, 27] [53-B-E; 54-E]
            3. On examination of the pleas of A-5, this Court agrees
     that these discrepancies fall under what has been labeled by the
C    High Court as ‘minor discrepancies’, more so in an incident of
     this nature, where all the accused were inflicting blows on the
     deceased, at tandem. PW-7 and PW-8 also became victims of
     this attack, when they tried to intervene. It would be difficult to
     accept that in such a situation, the narration should be absolutely
D    exact, rather there should be a broad consistency in what
     transpired at the time of the incident. To accept the plea of A-5,
     which at first blush may seem to have some merit, on a deeper
     examination would amount to nit picking the testimony of the
     witnesses to somehow obtain an acquittal. This Court may also
     notice that there was no past enmity, which could be attributed
E    against A-5 alone as to rope him in. In fact, the grievance of the
     deceased was about the collective behavior, in the past, of all the
     accused. This resulted in all the accused using the opportunity
     of a small verbal tiff with a friend of complainant and deceased, to
     come to the site of the incident, which was the under construction
     house of the deceased, to inflict the deadly blows on the deceased,
F
     culminating in his death. [Para 30] [55-C-E]
           4. The testimony of PW-8 further shows that he had
     seen A-6 and other accused persons earlier when they had
     been identified to him, at that stage. It is in those circumstances
     that he identified all the accused. The fact also remains that A-
G
     3, A-4 and A-5 were arrested on the same day, though A-6 was
     arrested subsequently. The recovery of weapons was also made
     due to the disclosure statement of A-5. Thus, this Court is not
     persuaded to accept the plea of mistaken identity, as sought to
     be advanced by A-5 , which is what is stated to be the real case
H    distinguishing A-5 from other accused. [Para 32] [56-A-B]
       DEV KARAN @ LAMBU v. STATE OF HARYANA                                43


      5. Insofar as A-3 is concerned, all arguments of A-5 were             A
adopted, except the argument about mistaken identity but then,
that is the only plea of A-5, other than formally adopting the
arguments of A-4 and A-6, which have already been rejected.
[Para 33] [56-C]
      Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai                     B
      Patel &Ors. (2018) 7 SCC 743 : [2018] 6 SCR 1050 ;
      Dani Singh v. State of Bihar (2004) 13 SCC 203 : [2004]
      2 SCR 1138 ; Mahadev Sharma v. State of Bihar (1966)
      1 SCR 18 ; KuldipYadav v. State of Bihar (2011) 5 SCC
      324 : [2011] 5 SCR 186 – referred to.                                 C
                        Case Law Reference
[2018] 6 SCR 1050                  referred to             Para 13
[2004] 2 SCR 1138                  referred to             Para 17
                                                                            D
[1966] 1 SCR 18                    referred to             Para 18
[2011] 5 SCR 186                   referred to             Para 20
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 299 of 2010
                                                                            E
      From the Judgment and Order dated 19.09.2008 of the High Court
of Punjab and Haryana at Chandigarh in Cr. Appeal No. 61-DB/99
                                  With
      Criminal Appeal Nos. 300, 302 and 1139 of 2010
                                                                            F
      Ms. Alka Agrawal, AAG, R. Basant, Sr. Adv., Ms. Tarannum
Cheema, A. Karthik, Ms. Smriti Suresh, Vishnu P., Badusha Sulaiman,
Akshay Sahay, Ms. Hiral Gupta, Akshay N., Sanjay Jain, Ms. Anamika
Agrawal, Dr. Monika Gusain, Rishi Malhotra, Utkarsh Singh, Ram Naresh
Yadav, V. Shushant, Mohit Kumar Singh, Advs. for the appearing parties.     G
      The Judgment of the Court was delivered by
      SANJAY KISHAN KAUL, J.
       1. On the fateful date of 28.7.1994 at 3 a.m., Jaibir @ Gabbu (for
short ‘deceased’) was murdered. An FIR was registered on the same           H
44                SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A    date by one Surender (PW-7). The prelude culminating in the incident
     has been set out in the FIR.
            2. The residential house of the deceased was under-construction,
     at Modawala Bagh in Bhiwani. A group of friends – Surender (PW-7),
     the deceased, Ajay Bhan (PW-8), another Surender S/o Rajender Singh
B    (not examined), Sandeep (not examined) and Narender (not examined)
     were sitting and consuming liquor in one of the rooms of the under
     construction house. It appears that the liquor possibly fell short, as the
     deceased asked Sandeep to bring half a bottle of liquor from the English
     vend. After some time, the remaining friends who were in the room
C    heard raised voices of Sandeep. In order to enquire as to what was
     transpiring, Surender (PW-7/complainant), the deceased and Narender
     went towards the liquor shop. In the proximity of the liquor shop, near
     the tea shop of Naresh Kumar, these three persons saw accused Krishan
     and Vidhya Rattan (original accused No.3/appellant1) abusing and
     quarrelling with Sandeep. Heated words were exchanged and threats
D
     were held out. The deceased asked Krishan and Vidhya Rattan to come
     during the day to discuss the matter with the complainant and his friends.
     The complainant, the deceased, Narendar and Sandeep thereafter came
     back to the under-construction, residential house.

E           3. It is the case of the complainant that just as these friends were,
     once again, in the process of resuming their drink, seven persons (all
     arrayed as accused before the trial court) entered the under-construction
     house of the deceased, armed with deadly weapons like wooden rafter,
     lathis and sword. Rajesh Yadav (accused No.1), who has since passed
     away, was armed with a bahi (a rectangular wooden rafter, which is
F
     used in making cots), and proclaimed that the deceased, referred to as
     the ‘leader’, be killed, and then he hit the deceased on the head with the
     wooden rafter. A lathi blow was given by Krishan on the head of the
     deceased. The consequence of these blows was that the deceased fell
     to the ground. The assault continued when Suresh (original accused
G    No.5/appellant2) also gave a wooden rafter blow on the left leg of the
     deceased. Rajesh Yadav (accused No.1), since deceased, raised a
     lalkara that Jaibir (the deceased) be killed altogether. All the accused
     thereafter started hitting the deceased indiscriminately with their
     1
         Appellant in Crl.Appeal No.300/2010
     2
H        Appellant in Crl. Appeal No.302/2010
       DEV KARAN @ LAMBU v. STATE OF HARYANA                                       45
              [SANJAY KISHAN KAUL, J.]

respective weapons. A variety of weapons were used to carry out the                A
assault, with Rajesh Yadav and Suresh being armed with bahis, while
Rajesh Jogi (original accused No.4/appellant3) being armed with kirpan
(sword) and the remaining four accused carrying lathis.
       4. The endeavour of the complainant to intervene, only ended up
in blows being received by him from different accused, and the same                B
was the consequence for Ajay Bhan (PW-8), on his endeavour to
intervene, too. All the accused persons are stated to have run away
from the place of occurrence of the event, once the remaining companions
of deceased herein raised an alarm. The deceased succumbed to his
injuries, though was taken for treatment to the General Hospital, Bhiwani.         C
The examination of PW-8 and PW-7 resulted in the doctor opining that
PW-8 had multiple lacerated wounds on the scalp, and that his right
forearm bones, left forearm bones and right foot were fractured. After
giving necessary medical treatment, he was referred to the Medical
College, Rohtak on the same day. Surender (PW-7/complainant) was
found with a surgical emphysema4 on the right side, which was the reason           D
for his reference to the Medical College, Rohtak. The ruqa was sent to
the Police Station, Bhiwani at 4:15 a.m. by the doctor on duty, Dr. Aditya
Sarup Gupta. Suffice to say, the various injuries inflicted on these two
persons were found by the doctor to have been inflicted with blunt
weapons, with some of the injuries being grievous in nature, while the             E
remaining ones being simple. But for timely medical aid, the injuries
could have proved fatal, opined the doctor. Both these persons were
declared fit to make statements at 5:40 a.m., on 28.7.1994.
       5. On the ruqa being sent, the SHO of the Police Station at
Bhiwani reached the hospital to record the statements of PW-7 and                  F
PW-8. The formal FIR was registered, thus, at 7:15 a.m., imputing a
common object to all the accused, to murder the deceased. On inquest
proceedings being conducted, the body was sent for post-mortem. A
special report was received by the Chief Judicial Magistrate (‘CJM’),
Bhiwani at 9:00 a.m., and a rough site plan was made by the SHO at the             G
site, who also collected blood stained earth, one chaddar, one pajama
shirt of the deceased, one pajama, kamij and baniyan in torn condition.
Four of the accused – Krishan, Vidhya Rattan, Suresh and Rajesh Jogi
3
 Appellant in Crl. Appeal No.1139/2010
4
A condition in which the air sacs of the lungs are damaged and enlarged, causing
breathlessness.                                                                    H
46                SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A    were apprehended/arrested on 28.7.1994 and questioned. On the post-
     mortem being concluded, the deceased was found to have suffered,
     inter alia, the following injuries:
                  Multiple lacerated wounds on the parieto-occipital area of the
                  scalp, and various other parts of the forehead, scalp. On opening
B                 the skull bone, subdural haematoma was found at the
                  corresponding site of fracture, one the right side of the parietal
                  bone.
                  Lacerated wounds on the left eye brow, lower eye lid, right
                  forearm, and left leg.
C                 Fracture of bones in the left leg.
                  Bruises on the right shoulder, right upper arm, chest, abdomen,
                  left and right thigh, left and right knee.

                  Abrasions on the left should, left forearm.
D
            The cause of death was opined to be shock and haemorrhage, as
     a result of injuries, which were sufficient in the normal course of nature,
     to cause death. These injuries were quite possibly as a result of blows
     from lathis, bahis and sword.
             6. The disclosure statement, post the interrogation of the arrested
E    accused on 29.7.1994, resulted in recovery of the weapons and clothes
     worn by them at the time of the incident. On the same day, Rajesh
     Yadav (accused No.1) was also arrested, and his disclosure statement
     led to the recovery of a bahi. Dev Karan (original accused No.6/
     appellant5) was, however, arrested subsequently, on 1.8.1994, and he
F    led to the discovery of lathis, for which assistance was also provided by
     the accused, Karma.
            7. On completion of investigation, a chargesheet was filed on
     15.11.1994, and charges were framed under Sections 148, 302, 307, 325
     read with Section 149 of the Indian Penal Code, 1860 (hereinafter
G    referred to as the ‘IPC’) and Section 449 of the IPC. The accused
     pleaded innocence, and during trial, seventeen prosecution witnesses
     were examined. No witnesses were examined as defence witnesses.
     Rajesh Yadav died during trial. The remaining arrested accused were
     found guilty and convicted under Sections 148, 302, 307, 325 read with
     5
H        Appellant in Crl. Appeal No.299/2010
        DEV KARAN @ LAMBU v. STATE OF HARYANA                                  47
               [SANJAY KISHAN KAUL, J.]

Section 149 of the IPC and Section 449 of the IPC. All the accused             A
were sentenced for life, with fine of Rs.500 each under Section 302 of
the IPC. They were also sentenced to undergo rigorous imprisonment
(‘RI’) for seven years each along with a fine of Rs.500 each under
Section 307 of the IPC with similar sentence under Section 149 of the
IPC. The accused were also directed to undergo RI for three years
                                                                               B
each with a fine of Rs.200 each under Section 325 of the IPC, and
under Section 148 of the IPC, they were sentenced to RI for 2 years
each with fine of Rs.200 each. The sentences were directed to run
concurrently. All the accused were held guilty under Section 149 of the
IPC as they constituted an unlawful assembly, as a result of which, it
was opined that specific attribution of injuries caused by each individual     C
was not required to be considered.
       8. It may also be noticed that Karma (A-7) was apprehended
subsequently, and was convicted in a subsequent trial. The accused
filed appeals. The High Court, however, dismissed the appeals in terms
of the impugned judgment and order dated 19.9.2008.                            D
       9. Against the order of the High Court, Krishan (A-2) and Karma
(A-7) did not prefer further appeal to this Court, and seemingly accepted
the sentence. Thus, only Vidhya Rattan (A-3), Rajesh Jogi (A-4), Suresh
(A-5) and Dev Karan (A-6) preferred appeals, which four appeals have
been examined by us, in the present judgment.                                  E

       10. Learned counsel advanced submissions on behalf of A-4 and
A-6, i.e., Rajesh and Dev Karan. The gravamen of the submissions
was the plea that no charges had been framed under Section 141 of the
IPC. In addition, it was submitted that the prelude to the incident was an
alleged altercation between Sandeep and A-2 & A-3. However, for                F
reasons best known to the prosecution, Sandeep, who was the sole person
who could have thrown light as to what gave rise to the initial quarrel,
has not been examined. Not only that, Sandeep is alleged to have come
back with the liquor after the incident, and thereafter, all the accused are
alleged to have come to the spot and beat up the deceased. The third           G
aspect emphasised was that the main injury, which would have caused
the death, was an injury on the head by the wooden rafter, which was
delivered by A-1, who passed away during the trial.
      11. Learned counsel took us through the provisions of Chapter
VIII of the IPC, dealing with ‘Offences against the Public Tranquility’.       H
48               SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A    It was his submission that the provisions have to be ready holistically,
     and in sequence. Thus, Section 141 of the IPC defines an ‘Unlawful
     Assembly’ as an assembly of five or more persons with a common object.
     Such common objects are specified in the Section, and what would be
     applicable, in this case, would be the third aspect, i.e., “to commit any
     mischief or criminal trespass, or other offence.” Section 142 of the IPC
B
     provides that a person who, being aware of facts which render any
     assembly an unlawful assembly, intentionally joins that assembly, or
     continues in it, is said to be a member of an unlawful assembly, while
     Section 143 of the IPC provides the punishment for being part of such
     an unlawful assembly. Section 144 of the IPC deals with joining an
C    unlawful assembly, armed with deadly weapon, which is likely to cause
     death; Section 146 of the IPC deals with rioting; Section 147 of the IPC
     deals with punishment for rioting while Section 148 of the IPC deals
     with rioting, armed with deadly weapon. Section 149 of the IPC reads
     as under:
D             “149. Every member of unlawful assembly guilty of offence
              committed in prosecution of common object.—If an offence
              is committed by any member of an unlawful assembly in
              prosecution of the common object of that assembly, or such as
              the members of that assembly knew to be likely to be committed
E             in prosecution of that object, every person who, at the time of the
              committing of that offence, is a member of the same assembly, is
              guilty of that offence.”
             12. It was, thus, the submission advanced that unless there is
     infliction of punishment under Section 143 of the IPC, as a sequitur to
F    forming an unlawful assembly under Section 141 of the IPC, there could
     be no cause to apply Section 149 of the IPC.
            13. Learned counsel referred to the judgment in Vinubhai
     Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel &Ors.,6 to elucidate
     his submission. The concept of vicarious liability, as a result of which a
G    large number of accused constituting an unlawful assembly can be held
     guilty, has been discussed, to hold that it is not necessary that each of the
     accused inflict fatal injury or any injury at all; the mere presence of an
     accused in such an assembly is sufficient to render him vicariously liable
     under Section 149 of the IPC, for causing the death of the victim of the
     6
H        (2018) 7 SCC 743
          DEV KARAN @ LAMBU v. STATE OF HARYANA                                    49
                 [SANJAY KISHAN KAUL, J.]

attack, provided that the accused are told that they are to face the charge,       A
rendering them so vicariously liable. The principle of this vicarious liability,
under Section 149 of the IPC has been set out in para 28 of the judgment
and reads as under:
         “Section 149 propounds a vicarious liability [Shambhu Nath
         Singh v. State of Bihar, AIR 1960 SC 725: 1960 CrlLJ 1144] in             B
         two contingencies by declaring that (i) if a member of an unlawful
         assembly commits an offence in prosecution of the common object
         of that assembly, then every member of such unlawful assembly
         is guilty of the offence committed by the other members of the
         unlawful assembly, and (ii) even in cases where all the members
                                                                                   C
         of the unlawful assembly do not share the same common
         object to commit a particular offence, if they had the knowledge
         of the fact that some of the other members of the assembly are
         likely to commit that particular offence in prosecution of
         the common object.”
                                                                                   D
     14. The concept of unlawful assembly under Section 149 of the
IPC was, thus, as per para 31, opined to have two elements:
         “(i) The assembly should consist of at least five persons; and
         (ii) They should have a common object to commit an offence or
         achieve any one of the objects enumerated therein.”                       E
         15. In that context, in paras 32 & 33, it has been observed as
under:
         “32. For recording a conclusion, that a person is (i) guilty of any
         one of the offences under Sections 143, 146 or 148 or (ii) vicariously
                                                                                   F
         liable under Section 149 for some other offence, it must first be
         proved that such person is a member of an “unlawful assembly”
         consisting of not less than five persons irrespective of the fact
         whether the identity of each one of the 5 persons is proved or not.
         If that fact is proved, the next step of inquiry is whether the
         common object of the unlawful assembly is one of the 5 enumerated         G
         objects specified under Section 141 IPC.
         33. The common object of assembly is normally to be gathered
         from the circumstances of each case such as the time and place
         of the gathering of the assembly, the conduct of the gathering as
         distinguished from the conduct of the individual members are              H
50               SUPREME COURT REPORTS                            [2019] 11 S.C.R.


A             indicative of the common object of the gathering. Assessing the
              common object of an assembly only on the basis of the overt acts
              committed by such individual members of the assembly, in our
              opinion is impermissible. For example, if more than five people
              gather together and attack another person with deadly weapons
              eventually resulting in the death of the victim, it is wrong to conclude
B
              that one or some of the members of such assembly did not share
              the common object with those who had inflicted the fatal injuries
              (as proved by medical evidence); merely on the ground that the
              injuries inflicted by such members are relatively less serious and
              non-fatal.”
C
           16. The submission, thus, was that the significance of not invoking
     Section 141 of the IPC is that the very substratum of constituting an
     unlawful assembly did not exist.
           17. To support the aforesaid line of reasoning, a reference was
     also made to the earlier judgment in Dani Singh v. State of Bihar7,
D
     where, in para 11 it has been observed as under:
              “11. The emphasis in Section 149 IPC 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
E
              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
F             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 an
              unlawful assembly, it cannot be said that he is a member of an
              assembly. The only thing required is that he should have understood
G             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,
     7
H        (2004) 13 SCC 203
          DEV KARAN @ LAMBU v. STATE OF HARYANA                                51
                 [SANJAY KISHAN KAUL, J.]

         that is to say, they should all be aware of it and concur in it. A    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         B
         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 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    C
         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       D
         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.”
       18. In order to appreciate the significance of specifically invoking    E
Section 141 of the IPC, it would be appropriate to refer to the judgment
of this Court in Mahadev Sharma v. State of Bihar8. This Court opined
that for application of Section 149 of the IPC, there must be an unlawful
assembly. The scheme of the provisions was explained as under:
         “9. The fallacy in the cases which hold that a charge under Section   F
         147 is compulsory arises because they overlook that the ingredients
         of Section 143 are implied in Section 147 and the ingredients of
         Section 147 are implied when a charge under Section 149 is
         included. An examination of Section 141 shows that the common
         object which renders an assembly unlawful may involve the use
                                                                               G
         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. Offences under
         Sections 143 and 147 must always be present when the charge is
8
    (1966) 1 SCR 18                                                            H
52               SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A             laid for an offence like murder with the aid of Section 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 Section 143 is
              not used when the charge is under Section 147 or Section 148,
              and Section 147 is not used when the charge is under Section
B             148. Section 147 may be dispensed with when the charge is under
              Section 149 read with an offence under the Indian Penal Code.”
             19. Thereafter, it has been opined that if charges framed against
     the appellant contain all the necessary ingredients to bring home to each
     of the member of the unlawful assembly, the offence, with aid of Section
C    149 of the IPC, and the prosecution proves the existence of an unlawful
     assembly with a common object, which is the offence, as also the
     membership of each appellant, nothing more is necessary. The effect of
     these observations is that Section 141 of the IPC only defines what is an
     unlawful assembly and in what manner the unlawful assembly conducts
     itself, and in what cases the common object would make the assembly
D    unlawful is specified in the Sections thereafter, inviting the consequences
     of the appropriate punishment in the context of Section 149 of the IPC.
           20. In KuldipYadav v. State of Bihar9, it has been opined in para
     36 that a clear finding regarding the nature of the common object of the
     assembly must be given and the evidence discussed must show not only
E    the common object, but also that the object was unlawful, before recording
     a conviction under Section 149 of the IPC. What is required is that the
     essential ingredients of Section 141 of the IPC must be established.
           21. On examination of the aforesaid aspect, we are unable to
     come to a conclusion that there was any fatal flaw in the non-inclusion
F    of Section 141 of the IPC while framing charges, as would render the
     complete trial illegal, or that it can result in a finding that there would be
     no occasion to invoke Section 149 of the IPC. Learned counsel appears
     not to have appreciated the judicial pronouncements in the correct
     perspective, as what is necessary for invoking Section 149 of the IPC
G    has been set out in these judgments. It has nowhere been said that
     Section 141 of the IPC should be specifically invoked or else the
     consequences would be fatal. As long as the necessary ingredients of
     an unlawful assembly are set out and proved, as enunciated in Section
     141 of the IPC, it would suffice. The actions of an unlawful assembly
     9
H        (2011) 5 SCC 324
        DEV KARAN @ LAMBU v. STATE OF HARYANA                                  53
               [SANJAY KISHAN KAUL, J.]

and the punishment thereafter are set out in the subsequent provisions,        A
after Section 141 of the IPC, and as long as those ingredients are met,
Section 149 of the IPC can be invoked.
        22. In the factual context, it is observed that whatever be the
altercation or argument between Sandeep and the seven accused, it
resulted in the seven accused armed with deadly weapons coming to the          B
site of the incident, being the under-construction house of the deceased,
and all of them inflicting blows on the deceased. Rajesh Yadav, since
deceased, not only inflicted a blow with a bahi, but also raised a lalkar
that the deceased should be killed. All the other accused also inflicted
blows on the deceased. Even the interventions of PW-7 & PW-8 did not
                                                                               C
result in their desisting from such assault, but on the other hand, even
PW-7 and PW-8 received injuries as a result thereof. This is not a case
where the common assembly proceeded to the site and subsequently
decided to inflict the blows. It is not as if anyone incidentally joined the
group, but all of them came together with a clear intent and acted upon
that intent. It was not as if any of the accused ran away from the site,       D
or ceased to have the intent to inflict blows, which resulted in the death
of the deceased. The common object is, thus, writ large on its face.
There were, at least, 24 injuries inflicted on the deceased, and both the
courts below have found that the version given by PW-7 and PW-8
evoke confidence, who were themselves injured in the incident. Minor
                                                                               E
discrepancies were, thus, found to be a natural cause, where so many
persons attacked suddenly. The accused were known to the eye-
witnesses and, thus, there can be no case of mistaken identity. There
was no unexplained delay in filing the FIR.
       23. No doubt the IO had deposed that the liquor shops remain
                                                                               F
open up to 11 p.m., but that itself would not belie the story, as it is not
difficult to conceive of the ability to obtain liquor at that hour, which is
substantiated by the fact that the liquor was obtained and the persons at
the site were having a drink after having run through the initial amount
of liquor.
                                                                               G
        24. We may, however, notice that no doubt Sandeep ought to have
been examined as also the other persons, Narender, who visited the
initial altercation place subsequently. The prosecution undoubtedly faltered
there. The question, however, is whether this would, in any manner, cast
a doubt on the incident, or the manner of infliction of injuries on the
deceased and the eye-witnesses, which resulted in the death of the             H
54             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A    deceased. On an analysis of the facts of the present case, our answer
     would be in the negative. The saving grace, however, is that Surender,
     son of Bhagwan Singh had been examined, being PW-7, as the
     complainant, who has succinctly set out the scene. The injured witnesses
     knew the accused. That the site was an under construction site would
     not mean that there was no lighting at all so as to cause a confusion
B
     about the identity of the accused.
             25. We may also notice that there are concurrent findings of the
     trial court and the appellate court, which have appreciated the evidence,
     and we do not think that this Court should convert itself into a third court
     of appeal for appreciation of evidence.
C
            26. We are also unimpressed by the argument that the sentence
     may be converted into one under Section 304 Part II as a period of nine
     and a half years has been served by the accused, as a convict. The
     manner of the attack, the common object with which it was made, the
D    nature of the injuries do not permit us to take a more compassionate
     view of the matter in this case, to only facilitate the accused in serving a
     lesser sentence, other than what the legislature mandates, i.e., the life
     sentence (the option only being the death sentence).
           27. We, thus, find no merit in the case sought to be made out on
E    behalf of the accused Nos.4 & 6.
            28. A valiant endeavour was made by Mr. Basant, learned senior
     counsel on behalf of A-5, Suresh, on the substantive plea of absence
     from the site, i.e., no participation in the incident, but a case of mistaken
     identity. The crucial infirmity is stated to be the non-examination of
F    Sandeep as a witness, who had the quarrel with A-2 and A-3. However,
     this aspect, we have already discussed aforesaid. Since the conviction
     is basically on the statement of PW-7 and PW-8, i.e., the injured
     witnesses, learned counsel sought to show some inconsistencies in the
     testimonies of the two witnesses, as also in the identification of A-5 by
     PW-7, the complainant, in the F.I. Statement. It was submitted that the
G    original identification was of one Lala. In the FIR, it is stated that it was
     Suresh @ Lala (A-5). It was, thus, submitted that nothing has been
     explained as to how Lala became Suresh @ Lala in the FIR or how the
     IO recorded so. The inquest report is also stated to be only referring to
     Lala. Thus, the submission was that while the accused was Suresh, he
H    was not known as Lala. Suresh was stated to be in his native village,
        DEV KARAN @ LAMBU v. STATE OF HARYANA                                    55
               [SANJAY KISHAN KAUL, J.]

and not at the site on the fateful date, but, that is an alibi which even        A
other accused have pleaded.
       29. Learned senior counsel sought to read extensively from the
statement of PW-7 and PW-8. PW-8 has not alleged that A-5 inflicted
any injury on his person, while PW-7 has specifically alleged that A-5 hit
PW-8. On the other hand, PW-7 attributes a rafter blow on the leg of             B
the deceased to A-5, while PW-8 does not state so specifically, but refers
to blows given in general.
       30. On examination of the aforesaid pleas, we would agree that
these discrepancies fall under what has been labeled by the High Court
as ‘minor discrepancies’, more so in an incident of this nature, where all       C
the accused were inflicting blows on the deceased, at tandem. PW-7
and PW-8 also became victims of this attack, when they tried to intervene.
It would be difficult to accept that in such a situation, the narration should
be absolutely exact, rather there should be a broad consistency in what
transpired at the time of the incident. To accept the plea of the learned        D
senior counsel, which at first blush may seem to have some merit, on a
deeper examination would amount to nit picking the testimony of the
witnesses to somehow obtain an acquittal. We may also notice that there
was no past enmity, which could be attributed against A-5 alone as to
rope him in. In fact, the grievance of the deceased was about the collective     E
behavior, in the past, of all the accused. This resulted in all the accused
using the opportunity of a small verbal tiff with Sandeep, to come to the
site of the incident, which was the under construction house of the
deceased, to inflict the deadly blows on the deceased, culminating in his
death.
                                                                                 F
      31. Learned counsel for the State also invited our attention to the
discussion in the impugned order qua the aspect of the identification of
A-5 as under:
       “….In the FIR, accused Suresh has been described as Lala Ahir
       resident of Munthiya Kheri. The eye witnesses have, however,              G
       described/identified him as Suresh @ Lala, while appearing in the
       witnesses box. Undisputedly, accused Suresh is resident of
       Munthiya Kheri. The eye witness already knew him. This leads
       to the inference that he must have been known as Lala also and,
       thus, his presence at the spot cannot be doubted.”                        H
56                SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A            32. The testimony of PW-8 further shows that he had seen A-6
     and other accused persons earlier when they had been identified to him,
     at that stage. It is in those circumstances that he identified all the accused.
     The fact also remains that A-3, A-4 and A-5 were arrested on the same
     day, though A-6 was arrested subsequently. The recovery of weapons
     was also made due to the disclosure statement of A-5. We are, thus, not
B
     persuaded to accept the plea of mistaken identity, as sought to be advanced
     by the learned senior counsel, which is what is stated to be the real case
     distinguishing A-5 from other accused.
            33. We may also note that insofar as A-3 is concerned, all
     arguments of A-5 were adopted, except the argument about mistaken
C    identity but then, that is the only plea of A-5, other than formally adopting
     the arguments of A-4 and A-6, which have already been rejected.
           34. The net result of the aforesaid discussion is that all the four
     appeals must fail and are, thus, accordingly dismissed.
D           35. The accused are directed to surrender forthwith before the
     trial court, within a period of fifteen days from today, to serve out the
     remaining sentence.
            36. Needless to say, if there is any remission earned, after serving
     out the appropriate sentence, their cases would be considered for release
E    in terms of the norms of the State Government.


     Ankit Gyan                                                    Appeals dismissed.




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