OM PRAKASHversusSTATE OF HARYANA

                    [2014] 7 S.C.R. 305


                       OM PRAKASH                                A
                              v.
                    STATE OF HARYANA
             (Criminal Appeal No. 1102 of 2006)

                      APRIL 16, 2014
                                                                 B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.)

      Penal Code, 1860- ss. 302 rlw s.149 and s.148- Murder
- Unlawful· assembly -Common object - Allegation that
appellants inflicted injuries on deceased with lathis and butt C
of gun whereafter appellant no. 1 came on a tractor and ran
over the deceased· '-.'Conviction of appellants - Challenged
on grounds that there was delay in lodging of FIR; that there
was no evidence that appellant no. 1 ran over the tractor over
the deceased; and that eye witnesses did not ascribe specific D
overt act to each of the accused - Held: On facts, from the
sequence of the events which include consumption of time
in carrying the injured to the hospital, treatment availed of by
the deceased, information given by the concerned authority
of the primary h_ealth centre and arrival of police and also E
taking note of the distance, i.e., 24 kilometers from the place
of occurrence, it cannot be said that there was any delay in
lodging of the FIR - That apart, mere delay in lodging FIR
cannot by itself be regarded as fatal to the prosecution case
- It came out in the evidence that all accused persons carried F
lathis and most injuries were caused due to lathi blows and
some by the tractor - Ocular testimony corroborated by
medical evidence in this regard - Accused persons came
together armed with lathis and a gun - Eye witnesses were
natural witnesses, being brothers, and deposed in
unequivocal manner about the assault by all the accused · G
persons - Common object clearly evident - In such a
situation, attribution of specific individual overt act has no role
to play - All requisite tests to attract s. 149 /PC established

         /
                             305                                 H
    306    .SUPREME COURT REPORTS                 [2014) 7 S.C.R.

A by the prosecution - Conviction of appellants accordingly
    affirmed.

        Penal Code, 1860 - s. 149 - Common object of unlawful
  assembly - Manner of inference - Held: It can be gathered
  from the nature of the assembly, the weapons used by its
8
  members and the behavior of the assembly at or before the
  scene of occurrence - Core of the offence is the word "object"
  which means the purpose or design and in order to make it
  common, it should be shared by all - Number and nature of
  injuries is a relevant fact to deduce that the common object
C developed at the time of incident.

        FIR - Delay in lodging - Effect of - Held: Mere delay in
    lodging FIR cannot by itself be regarded as fatal to the
    prosecution case - The Court has a duty to take notice of the
o   delay and examine the same in the backdrop of factual $Core,
    whether there has been any acceptable explanation offered
    by the prosecution and whether the same deserves
    acceptance being satisfactory, but when delay is satisfactorily
    explained, no adverse inference is to be drawn.
E
       The prosecution case was that on the fateful day, an
  unlawful assembly comprising of accused-appellants
  inflicted injuries on 'PD', the brother of PW3-informant
  with /athis and butt of the gun; whereafter appellant no.1
  came on a tractor and ran over 'PD' which led to bleeding
F injuries on his arms, legs, waist and head and ultimately
  his death. The trial court found all the accused-appellants
  guilty and convicted them under Section 148 and section
  302 rlw section 149 IPC. The conviction was affirmed by
  the High Court.
G
        In the instant appeals, the appellants challenged their
    conviction contending that there was delay in lodging of.
    the FIR; that there was no evidence that appellant no.1
    ran over the tractor over the deceased; and that the so
H
       OM PRAKASH v. STATE OF HARYANA                     307

called eye witnesses did not ascri.be any specific overt          A
act to each of the accused.

    Dismissing the appeals, the Court

     HELD:1.1. In the instant case, from the sequence of
the events which include consumption of time in carrying          B
the injured to the hospital, treatment ·availed of by the
deceased, information given by the concerned authority
of the primary health centre and arrival of police and also
taking note of the distance, i.e., 24 kilometers from the
place of occurrence, it cannot be said that there is any          C
delay in lodging of the FIR. That apart, it is settled in law
that mere delay in lodging the first information report
cannot by itself be regarded as fatal to the prosecution
case. True it is, the court has a duty to take notice of the
delay and examine the same in the backdrop of the                 D
factual score, whether there has been any acceptable
explanation offered by the prosecution and whether the
same deserves acceptation being satisfactory, but when
delay is satisfactorily explained, no adverse inference is
to be drawn. It is to be seen whether there has been              E
possibility of embellishment in the prosecution version
on account of such delay. [Para 9] [314-F-H; 315-A]

    1.2. In the present case, there is, in fact, no delay. The
word "earliest" cannot be put in the compartment of
absolute precision. Apart from that the impact of the crime       F
on the relations who are eye witnesses, the shock and
panic which would rule supreme at the relevant time and
other ancillary aspects are also to be kept in mind. That
apart, the FIR is not the result of any embellishment which
has the roots in any kind of afterthought. In totality of facts   G
and circumstances, the submission for the appellants
pertaining to delay in lodging of the FIR being totally
unaccep,able is hereby rejected. [Para 10] [315-C-E]
    Meharaj Singh v. State of U.P. (1994) 5 SCC 188, State        H
    308     SUPREME COURT REPORTS             [2014) 7 S.C.R

A of H.P. v. Gian Chand (2001) 6 SCC 71.; Ramdas and others
  v. State of Maharashtra (2007) 2 SCC 170; Kilakkatha
  Parambath Sasi and others v. State of Kera/a (2011) 4 SCC
  552 and Kanhaiya Lal and others v. State of Rajasthan (2013)
  5 sec 655 - relied on.
B
       2. PW-3, and PW-7, the elder brothers of the
  deceased, have categorically deposed that the accused
  persons had given blows with lathis and appellant no.1
  had run the tractor over the deceased. There is no
  contradiction of the nature which would cause a
C concavity in the version of the prosecution. The ocular
  testimony has been corroborated by the medical evidence
  to a major extent in that regard and hence, it would be
  inappropriate to discard the prosecution case. That apart,
  the mental condition of the witnesses can be well
D appreciated and, in an~ case, they were not expected to
  state with exactitude how the injuries were caused by the
  tractor. From the evidence of PW-4 (the doctor who
  examined the deceased prior to his death), it is evincible
  that the injuries sustained by the deceased on his legs
E and arms could have been caused by the tractor wheels.
  Similar is the opinion of PW-1 (doctor who conducted the
  autopsy) and in the cross-examination he has explained
  why crush injuries were not there. Nothing has been
  elicited in the cross-examination of the eye witnesses on
F that score. In fact, no suggestion has also been given. It
  came out in the evidence that all the accused persons
  had carried lathis and most of the injuries were caused
  due to lathi blows and some by the tractor. Thus, the
  ocular testimony gets corroboration from the medical
G evidence, and, therefore, the stance that the prosecution
  witnesses made an effort to exaggerate their version
  ascribing a serious role to appellant no.1 is rejected.
   [Paras 11, 13] [315-F-G; 317-G-H; 318-A-D]
          3.1. Common object of an unlawful assembly can
H
      .OM PRAKASH v. STATE OF HARYANA                   309


also be gathered from the nature of the assembly, the A
weapons used by its members and the behavior of the
assembly at or before the scene of occurrence. It cannot
be stated as a general proposition of law that unless an
overt act is proven against the person who is alleged to
be a member of the unlawful assembly, it cannot be held · B
that he is a member of the assembly. What is really
required to be seen is that the member of the unlawful
assembly 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 IPC. The core of the c
offence is the word "object" which means the purpose
or design and in order to make it common, it should be
shared by all. The burden is on the prosecution. It is
required to establish whether the accused persons were
present and whether they shared the common object. It 0
is also an accepted principle that number and nature of
injuries is a relevant fact to deduce that the common
object has developed at the time of incident. [Para 16]
[31 S,.F-H; 320-A-C]
      3.2. In the case at hand, as the evidence would E
. clearly show, all the accused persons had come together
· armed with lathis. Accused Het Ram, who died during the
  pendency of the appeal, was armed with a gun. The eye
  witnesses who are natural witnesses, being brothers,
  have deposed in an unequivocal manner about the F
  assault by all the accused persons. The common object
  is clearly evident. In such a situation, attribution of
  specific individual overt act has no role to play. All the
  requisite tests to attract Section 149 IPC have been
  established by the prosecution. [Para 17] [320-C-E]        G

      Masa/ti v. The State of Uttar Pradesh AIR 1965 SC 202;
Lalji v. State of U.P. (1989) 1 SCC 437; Bhargavan and others
v. State of Kera/a (2004) 12 SCC 414; Debashis Daw and
others v. State of West Bengal (2010) 9 SCC 111 and             H
    310     SUPREME COURT REPORTS              [2014] 7 S.C.R.

A   Ramachandran and others v. State of Kera/a (2011) 9 SCC
    257 - relied on.·

        Ba/adin and others v. State of Uttar Pradesh AIR 1956
    SC 181 - referred to.
B                       Case Law Reference :
          (1994) 5 sec 188       relied on           Para 9
          (2001) 6 sec 11        relied on           Para 9

c         (2001) 2 sec 110       relied on           Para 9
          (2011) 4 sec 552       relied on           Para 9
          (2013) 5 sec 655       relied on           Para 9
          AIR 1956 SC 181        referred to         Para 14
D
          AIR 1965 SC 202        relieq on           Para 15
          (1989) 1 sec 437       relied on           Para 16
          (2004) 12 sec 414     relied on            Para 16
E
          (2010) 9 sec 111       relied on           Para 16
          (2011) 9 sec 251      relied on            Para 16

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
F   No. 1102 of 2006.

        From the Judgment and Order dated 18.03.2005 of the
    High Court of Punjab & Haryana at Chandigarh in Crl. Appeal
    No. 78-DB of 1997.

G                                WITH

    CrkA. Nos. 1103 & 1104 of 2006.

         Ram Niwas Kush, Jetendra Singh, Priyanka Singh, Shishu
    Pal, S. K. Sabharwal for the Appellant.
H
         OM PRAKASH v. STATE OF HARYANA                          311


       Ramesh Kumar, Kamal Mohan Gupta for the Respondent.               A

       The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. The present appeals, by special
 leave, have been preferred against the common judgment and .
 order dated 18.03.2005 passed by the High Court of Punjab · B
 and Haryana at Chandigarh in Criminal Appeal Nos. 78-DB &
 146-DB of 1997 with Criminal Revision No. 219 of 1997
 whereby the court has declined to. interfere with the judgment
 of conviction and order of sentence passed by the lea'rned
 Addi. Sessions Judge, Hisar in Sessions Case No. 40of1993 C
 for the offences under Sections 148 and 302 read with Section
 149 of IPC and affirmed the sentences of imprisonment for life
 and payment of fine of Rs. 1000/- by each with the default
 clause under Section 302 read with Section 149 of IPC and
 rigorous imprisonment of two years under Section 148 IPC wi1h D
 the stipulation that both the sentences shall be concurrent.
  ..
         2. Shorn of unnecessary details, the prose~ution version
   is that on 28.06.1993 the informant, Satbir Singh, PW 3, along
  with his two brothers, namely, Mahinder Singh, PW 7 and                E
   Prabhu Dayal (deceased) had gone to Hisar to enroll
   themselves in the Border Security Force for which interviews
  were being held at Hisar. About 3:00. p.m. all of them returned
   from Hisar in a Macha.nised Cart (Pater Rehra) and alighted
   at the bus stand of their village, Sadalpur. At that time, the
                                                                         F
   accused-appellants, namely, Man Singh, Radhey Sham, Bhal
   Singh, Ram Kanwar, Raja Ram, Mange Ram, Kirpa Ram and
   Pr~m Singh emerged from the rear of Katha (chamber),
   located nearby, Het Ram armed with a gun and all others armed
  with lathis. All of them raised a lalkara with the intention to
   assault the informant and his two brothers, Mahinder Singh and        G
   Prabhu Dayal, as the.
                          later had earlier.-.caused Injuries to them.
· Forming an unlawful assembly: with the common object they
   inflicted injuries on Prabhu Dayal with their lathis and butt of
   the gun. Prabhu Dayal fell down on the road. Being scared, the
  ·informant and his brother Mahinder Singh ran away and stood           H
    312      SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A near the wall of the water reservoir. Thereafter, Om Prakash
  came on a tractor bearing registration No. HR-20A-8022, ran
  over Prabhu Dayal and fled away from the scene of occurrence
  along with their weapons in the tractor. The informant and his
  brother Mahinder Singh went to see the condition of Prabhu
B Dayal who had sustained injuries on his arms, legs, waist and
  head and bleeding profusely. He was taken to the Government
  Hospital, Adampur in a Machanised Cart and first aid was
  given to him. During his examination by the medical officer he
  succumbed to his injuries at 5.50 p.m. and the hospital staff
c informed the nearby police station about his death. The
  Investigating Officer, Ronaski Ram, PW-8, recorded the
  statement of Satbir Singh, PW-3, and on that base registered
  an FIR No. 100/93 at 7.45 p.m. and the criminal law was set in
  motion.
D      3. In course of investigation, the investigating agency
  prepared the inquest report, got the post mortem conducted
  and collected the blood stained earth vide seizure memo Ext.·
  PM. On 2.07.1993 the Investigating Officer arrested Man Singh,
  Radhey Shyam, Ram Kumar, Raja Ram and Om Prakash. All
E of them led to discovery of the weapons used in the alleged
  commission of crime. After completing the investigation ch~rge­
  sheet was placed against the aforem~ntioned accused
  persons.

F      4. The accused persons pleaded innocence and false
  implication due to animosity. Be it noted, in course of trial after
  some evidence was recorded, the learned trial Judge, on the
  basis of an application preferred by the public prosecutor under
  Section 319 of the Code summoned the other accused
G persons, namely, Bhal Singh, Mange Ram, Kirpa Ram, Het
  Ram and Prem Singh to face trial.

       5. In order to prove its case, the prosecution, examinec
  eight witnesses, namely, Dr. Pratap Singh, PW-1, Om Prakash,
  Patwari, PW-2, Satbir Singh, PW-3, Dr. P.L. Jindal, PW-4,
H Basant Kumar, PW-5, Ram Kumar, Asst. Sub Inspector, PW-
         OM PRAKASH v. STATE OF HARYANA                        313
                [DIPAK MISRA, J.]
 6, Mahinder Singh, PW-7 and Ronaski Ram, Investigating               A
 officer, PW-8 .. No' evidence in defence was adduced by the
 accused. However, a copy of the judgment relating to land
 dispute between the parties and copy of FIR No. 6 dated
 9.1.1993 and copy of Election Petition, Ext. DC titled as Sohan
 Lal v. Nardwari and others were tendered in evidence to              B
 substantiate the plea of enmity. The learned trial Judge on
 appreciation of evidence brought on record came to hold that
 the prosecution had brought home the charges beyond any
 reasonable doubt and, accordingly, convicted all the accused
 persons and sentenced each of them as has been stated                C
 hereinbefore.

        6. Being dissatisfied with the judgment of conviction and
 order of sentence the accused persons preferred appeal
 before the High Court raising many a stand and stance. The
 High Court repelled all the contentions by holding that there was    D
 no delay in lodging of the FIR; that there was enmity between
 the parties inasmuch as litigations were pending; that the two
 eye witnesses Satbir Singh, PW-3, and Mahinder Singh, PW-
 7,   are natural witnesses and their testimony could not be
 discarded solely because of their relationship with the              E
 deceased; that their evidence is unimpeachable and the
 contradictions being minor do not create any dent in their
 version; that the medical evidence assuredly corroborates the
 ocular testimony of the eye witnesses; that the defective and
 tilted investigation would not corrode the evidence brought on       F
 record which prove the case of the prosec;ution to the hilt and,
 eventually, gave the stamp of approval to the verdict of the trial
 court.

       7. Mr. Ram Niwas Kush, learned counsel appearing for the
  appellants, has urged that there is delay in lodging of the FIR     G
  inasmuch though the occurrence took place about 3.00 p.m.,
  yet the FIR was not lodged till 7.45 p.ni. and in the backdrop
  of enmity there was ample time to think, add and embellish the
• versions, apart from roping in number of persons, which
                                                                      H
    314 . SUPREME COURT REPORTS                     (2014] 7 S.C.R.


A creates a grave suspicion in the whole case put forth by the
  prosecution. Learned counsel would contend that the evidence
  brought on record do not remotely prove that a tractor has made
  to run over certain parts of the body of the deceased as alleged
  by the prosecution and, therefore, both the courts have fallen
B into error by recording the conviction. The last plank of
  submission is that all the accused persons could not have been
  convicted under Section 302 IPC in aid of Section 149 IPC.

        8. Mr. Ramesh Kumar, learned counsel for the State,
C supported the conviction and the sentences recorded by the trial
   court which has been concurred with by the, High Court, on the
   ground that the FIR was lodged in quite promptitude and the        1




  ·appreciation of evidence by both the courts is absolutely!
   flawless.

D       9. First, we shall deal with the contention pertaining to delay
  in lodging of the FIR. It is not in dispute that the occurrence took.
  place about 3.00 p.m. and thereafter, the deceased was!
  carried by a merchandised cart to the primary health centre\
  where he was administered some treatment but he succumbed
E to his injuries. On being informed by the hospital staff, the\
  police arrived at the hospital and recorded the statement of the.
  informant, Satbir Singh, PW-3, and thereafter an FIR was.
  registered at 7.45 p.m. From the sequence of the events which
  include consumption of time in carrying the injured to the
F hospital, treatment availed of by Prabhu Dayal, information
  given by the concerned authority of the primary health centre
  and arrival of police and also taking note of the distance, i.e.,
  24 kilometers from the place of occurrence, we do not think that
  there is any delay in lodging of the FIR. That apart, it is settled
G in law that mere delay in lodging the first information report
  cannot by itself be regarded as fatal to the prosecution case.
  True it is, the court has a duty to take notice of the delay and
  examine the same in the backdrop of the factual score, whether
  there has been any acceptable explanation offered by the                1




  prosecution and whether the same deserves acceptation being
H
          OM PRAKASH v. STATE OF HARYANA                     315
                 [DIPAK MISRA, J.]
 satisfactory, but when delay is satisfactorily explained, no       A
 adverse inference is to be drawn. It is to be seen whether there
 has been possibilify of embellishment in the prosecution version
 on account of such delay. These principles have been stated
 in Meharaj Singh v. State of U.P. 1, State of H.P. v. Gian
 Chand 2, Ramdas and others v. State of Maharashtra 3,              B
 Kilakkatha Parambath Sasi and others v. State of Kera/a 4 and
 Kanhaiya Lal and others v. State of Rajasthan 5•

       10. In the present case, as we     find, there is, in fact, no
 delay. Learned counsel for the appellants would emphasise on C
!the concept that effort has to be made to lodge the report at
.the earliest, but the "earliest", according to us, cannot be put in
:the compartment of absolute precision. Apart from whatwe
 have stated, the impact of the crime on the relations who are
 eye witnesses, the shock and· panic which would rule supreme
 at the relevant time and other ancillary aspects are also to be D
 kept in mind. That apart, as we notice, the FIR is not the result
 of any embellishment which has the roots in any kind of
 afterthought. Considering the totality of facts and circumstances
 the submission of learned counsel for the appellants pertaining
 to delay in lodging of the FIR being totally unacceptable is ,£
 hereby rejected.

       11. The next limb of submission is that the evidence
  brought on record do' not establish beyond doubt that the
  accused Om Prakash had run a tractor on the deceased. In this     F
. context, Satbir Singh, PW-3, and Mahinder Singh, PW-7, the
  elder brothers of the deceased, have categorically deposed that
  the accused persons had given blows with lathis and Om
  Prakash had run the tractor over the deceased. Dr. Jindal, PW-
                                                                    G
 1.   (1994) 5 sec 100.
 2.   (2001 > 6 sec 71.
 3.   (2007) 2 sec 170.
 4.   (2011) 4 sec 552.
 5.   (2013) 5 sec 655.
                                                                    H
     316         SUPREME COURT REPORTS                [2014] 7 S.C.R.


A 4, who had examined the deceased prior to death, had found
  11 injuries on his body. He had not expressed any opinion on
  injury Nos. 1, 2, 4, 5 and 8 and observed that final opinion
  would be expressed after x-ray had been done. In examination-
  in-chief, referring to his opinion, Ex. PK/1, he has stated that
B injuries on both legs and arms on the person of the deceased
  could be caused by tractor wheels and the other injuries could
  be caused by lathi blows. In the cross-examination barring that
  he had not found the tyre mark on the pyjama of the injured
  nothing substantial has been elicited.
,C
          12. Dr. Partap Singh, PW-1, who conducted the autopsy,
     had found the following injuries: -

           "1.     A stitched wound 1 ~ long on the right side of
                   parental region bne inch above the hair line. On
D                  exploration, there was extra vacation of blood in
                   layers scalp. The wound was superficial.

           2.      A scabbed abrasion 1" x 1" on the right cheek ..It
                   was red in colour.
E          3.      Multiple contusions of various sizes and shape,
                   covering the back of chest and abdomen. Reddish
                   in colour.

           4.      A stitched wound %" long on the back of upper arm
F                  on right thigh. Wound was bone deep.

           5.      Multiple contusions covering the upper half of right
                   fore-arm, right elbow and lower half of right upper,
                   reddish in colour. On exploration, the underlying
                   bones were fractured (right humorous and upper
G                  part of right radius and ulna.)
           6.      A lacerated wound % inch long and ~· wide, and
                   bone deep present on the upper part of left fore-
                   arm.
H
            QM PRAKASH v. STATE OF HARYANA                     317
                    [DIPAK MISRA, J.]
       7.     A stitched wound 1" long on the back of middle of A
              left upper arm. Clotted blood was present.
       8.     Multiple contusions covering the lower part of left
              upper arm, elbow and upper part of left forecarm,
              reddish in colour. The underlying bones (upper part
                                                                    8
              of left radius, ulna and lower part of left humorous)
              were fractured.

       9.     A lacerated and stitched wound 1" long present on
              the left of leg on its middle. Clotted blood was
              present. The underlying bones were fractured.     C

       10. A lacerated and stitched wound 1" long present just
         , · med.ial to injury No. 9, clotted bl~Od was present.
       11.    A lacerated and stitched wound 2" long, present on
              the front of lower one third of right leg.         0

       12:    A stitched wound 1" long, 2 inch lateral to injury No.
              11 clotted blood was present.

       13.    A stitched wound 1 W' long present 1 W' medial to E
              injury No. 11. Clotted blood was present."
        13. In his examination-in-chief he has clearly stated that
  some of the injuries could have been caused by the relevant
  organ of the body/struck by a blunt countering by the wheel of
  a tractor. The submission of the learned counsel for the F
  appellants is that there is no clear cut opinion by the two doctors
  and, in fact, there is an irreconcilable contradiction which would
  show that no injury was caused by running over of a tractor
. falsifying the case of the prosecution. The said submission
  leaves us unimpressed inasmuch as we really do not find that G
  there is any contradiction of that nature which would cause a
  concavity in the version of the prosecution. As we find, the
  ocular testimony has been corroborated by the medical
  evidence to a major extent in that regard and hence, it would
                                                                       H
    318      SUPREME COURT REPORTS                   [2014) 7 S.C.R.

A be inappropriate to discard the prosecution case. That apart,
  the mental condition of the witnesses can be well appreciated
  and, in any case, they were not expected to state with
  exactitude how the injuries were caused by the tractor. From
  the evidence of Dr. Jindal, PW-4, it is evincible that the injuries
B sustained by the deceased on his legs and arms could have
  been caused by the tractor wheels. Similar is the opinion of Dr.
  Partap Singh, PW-1 and in the cross-examination he has
  explained why crush injuries were not there. It is also worthy to
  mention that nothing has been elicited in the cross-examination
c of the eye witnesses on that score. In fact, no suggestion has
  also been given. It has come out in the evidence that all the
  accused persons had carried lathis and most of the injuries
  were caused due to lathi blows and some by the tractor. Thus,
  the ocular testimony gets corroboration frorn the medical
D evidence, and, therefore, the stance that the prosecution
  witnesses have made an effort to exaggerate their version
  ascribing a serious role to Om Prakash, in our considered
  opinion, is mercurial and deserves to be repelled and we do
  so.

E         14. It is next submitted by learned counsel for the appellants
    that the so called eye witnesses have not ascribed any specific
    overt act to each of the accused and there are only spacious
    allegations that they were armed with lathis and inflicted injuries
    on the deceased. In essence, the submission is that in the
F   absence of any specific ascription or attribution of any particular
    role specifically to each of the accused Section 149 IPC would
    not be attracted. In this regard, we may refer to a passage from
    Baladin and others v. State of Uttar Pradesh 6 wherein a three-
    Judge Bench had opined thus: -
G
          "It is well settled that mere presence in an assembly does
          not make such a person a member of an unlawful assembly
          unless it is shown that he had done something or omitted
          to do something which would make him a member of an
H   6.    AIR 1956 SC 181.
       OM PRAKASH v. STATE OF HARYANA                       319
               [DIPAK MISRA, J.]
     urllawful assembly, or unless the case falls under Section     A
     142, Indian penal Code."
     15. The aforesaid enunciation of law was considered by
a four-Judge Bench in Masalti v. The State of Uttar Pradesh 7
which distinguished the observations made in Baladin (supra)        B
on the foundation that the said decision should be read in the
context of the special facts of the case and may not be treated
as laying down an unqualified proposition of law. The four-
Judge Bench, after enunciating the principle, stated as follows:-

     "lt would not be correct to say that before a person is held C
     to be a member of an unlawful assembly, it must be shown
     that he had committed some illegal overt act or had been
     guilty of some illegal omission in pursuance of the common
     object of the assembly. In fact, S. 149 make it clear that if
     an offence is committed by any member of an unlawful D
     assembly in prosecution of the common object of that
     assembly, or such as the members of the assembly knew
     to be likely to be committed in prosecution of that object,
     every person who, at the time of committing of that offence,
     is a member of the same assembly, is guilty of that offence; E
     and that emphatically brings out the principle that the
     punishment prescribed by S. 149 is in a sense vicarious
     and does not always proceed on the basis that the offence
     has been actually committed by every member of the
     unlawful assembly."                                           F

      16. Common object of an unlawful assembly can also be
gathered from the r:iature of the assembly, the weapons used
by its members and the behavior of the assembly at or before
the scene of occurrence. It cannot be stated as a general
proposition of law that unless an overt act is proven against the   G
person who is alleged to be a member of the unlawful assembly,
it cannot be held that he is a member of the assembly. What is
really required to be seen is that the member of the unlawful

7.   AIR 1965 SC 202.                                               H
    320        SUPREME COURT REPORTS                 [2014] 7 S.C.R.


A   assembly 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 IPC. The core of the offence is the
    word "object" which means the purpose or design and in order
    to make it common, it should be shared by all. Needless to say,
B   the burden is on the prosecution. It is required to establish
    whether the accused persons were present and whether they
    shared the common object. It is also an accepted principle that
    number and nature of injuries is a relevant fact to deduce that
    the common object has developed at the time of incident. (See
c   Lalji v. State of U.P. 8, Bhargavan and others v. State of
    Kerala 9, Debashis Daw and others v. State of West Benga/1°
    and Ramachandran and others v. State of Kerafa 11 ).

        17. In the case at hand, as the evidence would clearly
  show, all the accused persons had come together armed with
D lathis. Het Ram, who died during the pendency of the appeal,
  was armed with a gun. The eye witnesses who are natural
  witnesses, being brothers, have deposed in an unequivocal
  manner about the assault by all the accused persons. The
  common object is clearly evident. In such a situation, attribution
E of specific individual overt act has no role to play. All the
  requisite tests to attract Section 149 IPC have been
  established by the prosecution.

         18. In view of our aforesaid analysis, as all the contentions
F   raised by the learned counsel for the appellants are sans
    substratum, the appeals, being devoid of merit, stand
    dismissed.
    Bibhuti Bhushan Bose                             Appeals Dismissed


G

    8.    (1989) 1 sec 437.
    9.    (2004) 12 sec 414.
    10. (2010) 9 sec 111.
H   11. (201t~9SCC257.