RAM DULAR RAI AND ORS.versusSTATE OF BIHAR

A                       RAM DULAR RAI AND ORS.
                                       v.
                              STA TE OF BIHAR

                            NOVEMBER 27, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Penal Code, 1860-Sections 141, 148, 149, 302 and 307-Murder
    committed by unlawful assembly-Identification ofonly four persons ofthe
    unlawful assembly-Conviction under section 149 !PC for existence of
C   common object-Correctness of-Held, non-identification ofother persons
    involved does not affect conviction under section 149 !PC-Held, on facts,
    there was common object to commit the crime and hence, convictions
    upheld-Arms Act, 1959-Section 27.

D         PW6 - informant was sleeping outside his house along with his
    son and"daughter and the other family members were sleeping inside
    the house. At about 12.30 a.m., the four appellants-accused came along
    with ten to eleven other persons armed with guns to the house of PW6
    and fired at the son and ·daughter (PW2) of PW6. The son died due
    to injuries: The occurrence of the crime was witnessed by PW I and
E   PW3 also. The defence witness DWI stated that appellant nos. I and
    4 were at their residence at the time of occurrence and hence could not
    have committed the offence. The trial· court, relying on eyewitness
    reports of PWI, PW2, PW3 and informant PW6, found all the four
    appellants guilty. Appellant no. I was sentenced to life imprisonme~t
F   for offence under section 302 IPC. Appellant nos. 2 to 4 were sentenced
    to life imprisonment for .offences under section 302 read with section
    149 IPC. Appellant no. I was further sentenced to 10 years imprisonmen~
    for offence under section 307 IPC and other appellants to 5 years
    imprisonment for offence under section 307 read with section 149 IPC.
G   Besides, all the appellants were sentenced to 3. years imprisonment for
    offences under section 148 IPC and section 27 of the Arms Act, 1959.
    High Coµrt dismissed the appeal of appellant no.· 1. In respect o~ other
    appellants, the High Court set aside the conviction for offences
    relatable to section 307 read with section 149 IPC and upheld rest of
H   the convictions.
                                      262
                RAM DULAR RAJ v. ST ATE OF BIHAR                 263

      In appeal, the appellants contended that the conviction under A
section 149 IPC is not applicable since the number of accused identified
by the eyewitnesses does not exceed five; that unidentified persons were
introduced by the prosecution for conviction under section 149 IPC:
that there is no evidence of any participation or sharing of common
object: and that the evidence of DW-1 rules out the presen~e of B
appellant nos. I and 4:

     Dismissing the appeals, the Court

      HELD : 1.1. Section 149 IPC does not require that all the five C
persons must be identified. What is required to be established is the
presence of five persons with a common object of doing an act. If that
is established, merely because other persons present are not identified,
that does not in any way affect the applicability of section 149 IPC.
                                                              (269-A) D

      1.2 Under section 149 IPC, the emphasis is on the common object
and not on common intention. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common -object and
he was actuated by that common object and that object is one of those ·
set out in section 141 IPC. Where common object of an unlawful E
assembly is not proved, the accused persons cannot be convicted with
the help of section 149 IPC. It cannot be laid down as a general
proposition of law that unless an overt act is proved against a person,
who is alleged to be a member of unlawful assembly, it cannot be said
that he is a member of an assembly. The only thing required is that F
he should have understood that the assembly was unlawful and was
likely to commit any of the acts which fall within the purview of section
141. [269-B-D)

     1.3 The word 'object, means purpose or design and in order to G
make it 'common', it must be shared by all. In other words, the object
should be common to the persons, who compose the assembly. i.e. they
should all be aware of it and concur in it. A common object may be
formed by express agreement after mutual consultation, but that is by
no means necessary. It may be formed at any stage ·by all or a few H
     264                SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

 A  members of the assembly and' other, members may just join and ado.pt
    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 ht sec.tion 149 !PC have to be strictly
   construed as equivalent to 'in: order to attain the common object'. lt
 B 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 t.o a particular stage and not thereafter.
    Mem.bers of a.n llnJa_wful assembly may have community of object up
    to certain poijnt beyond· which they may differ in their objects and the
 C lu10wledge possessed by ea.ch member ofwh.at is lik_ely to be committed
    in prosecution. o( their co.m.i;non obje<;t may vary not only according
    to the extent to. which he shares the co.mmllnity of object and as a
   .consequence of this the effect of s.ection 149 lPC may be different 011
    different members of the same assembly. [269-E-H; 270-A)

 D       ·1.4. 'Common object' is di:tTerent from a 'comm.on intention' as
                                                                                  )



    it does not require a P:rior con.cert and common meeting of mind.s
    before the attrack. lt is enQugb. ifea<;h has the sa01e 9bject in view and
    their number is five or more and; that they act as a .. assembly to achieve
    that object. The 4:0mmon object of an assembly is to be ascertained
  E from the acts and language of the members composing it and from a
    consideration of all the surrounding circumstances. lt 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 particlllar
    stage of the incident is essentially a qpestion of fact to be determined,
  F keeping in view the natu.re of the assembly, the a_rms carried by the
    mem.bers, and tbe behaviour of the members at or nea.r the scene of
    the incident. It is not necessary under law that in all cases of unl~wful
    assembly, with an unlawful common object, ~he same must be translatetl
    into action or be successful. It is n,o( necessary that the o!Jject or the
  G purpose, which is necessary to render an assembly an unlawful one
    comes into ex,istence at the outset. The time of forming an uPlawful
    intent is not material. An assembly which, at its commencei;nept or
    even for some time thereafter, is lawful, may subsequently become
    unlawflll. Jn other words, it can develop d_uring the course Qf incident
· H at the spot co instpnti. (270,-B-F}
                 RAM DULAR RAJ v. STATE OF BIHAR                    265 .·

     1.5. The evidence of the eyewitnesses which has been analysed in .A
great detail by both the trial court and the High Court shows that
though . four appellants were specifically identified, other persons
carrying weapons were present along with the appellants at the time
and place of occurrence. That being so, section 149 IPC has been
rightly applied.                                                       B
     I.6. The evidence ofDW-1 does not in any way improbabilises the
presence of the appellants at the time of occurrence. He only has stated.
that on hearing his call, appellants 1 and 4 came near him. The place
of occurrence and the place of residence of A 1 are in close proximity.
The possibility, as has been highlighted by the trial court and the High -C
Court of the aforesaid two accused appellants coming to their respective
place of residence after committing the offence cannot be ruled out and
is not physical impracticability or impossibility. When some persons
came with guns and their f)ctions preceding and succeeding the assault
indicate the existence of a common object to do an act as stipulated D
in section 149, the liability under section 149 is clearly attracted~ The
eyewitnesses to the occurrence, as held by the trial court and the High
Court, are natural witnesses and their presence at the spot of occurrence
or nearby is quite normal. Nothing suspiciou·s has been indicated as to
why their evidence which stood firm in spite of incisive cross-examination E
is to be discarded on the hypothesis that they are inimical to the
accused persons. (273-B-E]

     Chikkarage Gowda & Ors. v. State of Mysore, AIR (1956) SC 731;
Masalti & Ors. v. Stateo/UP., AIR(I965) SC 202; Laljiv. Stateo/UP., F
(1989) I SCC 437 and State of.UP. v. Dan Singh & Ors., (1997) 3 SCC
747, referred to.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
371-372 of 2003.
                                                                             G
     From the Judgment and Order dated 30.7.2002 of the Patna High
Court in Cr!. A. (DB) Nos. 519 and 594 of 1996.

     P.S. Mishra, Vishnu Sharma, Ms. T. Swapna Reddy, A.C. Mishra and
D.K. Jha for s. Chandra s.hekhar for the Appellant.                   H
    266                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A       H.L. Aggarwal and Kumar Rajesh Singh for B.B. Singh for the
    Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASA YAT, J. The appellant No. I (Ram Dular Rai) fa<'.e~
B trial for the commission of offences punishable under Sections 302 and 307
    of the Indian Penal Code, 1860 (for short the 'IPC'). The other appellants
    were tried for offences relatable to Section 302 read' with Section 149 IPC
    and Section 307 read with Section 149 IPC. Each of the appellants was
    also tried for commission of offence punishable under Section 148 IPC and
C   Section 27 of t_he Arms Act, 1959 (in short the 'Arms Act'), They wen~
    found guilty and sentenced to undergo imprisonment for life for the offence
    relatable to Section.302 or Section 302 read with Section 149 IPC, as the
    case may be. Appellant No. l was further sentenced to undergo imprisonment
    for l 0 years for the offence relatable to Section 307 IPC and other three
D   appellants were sentenced to five years impriwnment for the offence
    relatable to Section 307 read with Section 149 IPC. Each of them were
    sentenced to undergo imprisonment for three years for the offence relatable
    to Section 148 IPC .and Section 27 of the Arms Act. In appeal by the
    impugned judgment, appeal of the appellant Ram Dular Rai was dismissed.
E   In respect of other appellants, conviction for offences relatable to Section
    30? read with Section 149 IPC was set aside. The background facts leading
    to the trial is as follows:
                .             ~
            The informant Baleshwar Nath Singh (PW-6) in his fardbayan
    recorded on 17.3.1988 at about L05 a.m. stated that he was sleeping.in
F   the night on the Dalan of the house where a lantern and a dhibri were
    burning giving sufficient light in the Dalan. He was sleeping at the. eastern
    extreme on a cot and near him his son Karola Singh, daughter of Kam!a
    Singh, Renu Devi (PW-2), were also sleeping. Other members of the family
    were sleeping inside the rooms. At about 12.30 a.m. the accused-appellants
G   each armed with double barrel gun came to the Dalan along with ten to
    eieven other persons and standing outside the Dalan, were also armed with
    guns. On being asked by the informant about their identity, appellant Lalu·
    Rai scolded him and placed his gun on his chest. Accused-appellant Ram
    Dular Rai fired three times on his son Kati:lla Singh (hereinafter referred
H   to as the 'deceased') grievously injuring him, whereafter accused fired on
           RAM DULAR RAI v. STATE OF BIHAR [PASAYAT, J.]                267

Renu Devi, injuring her. Thereafter all the assailants fled away. Other A
members of the family and co-villager Jai Narain Singh (PW-3) also had
seen the occurrence. Kamla Singh died due to the injuries soon thereafter.
According to the informant, the reason for the assaults was that they had
been opposing one Madho Singh since the election of Mukhiya of their
Panchayat, for which reason the assailants had committed the offence. B

         The accused persons denied their alleged role in the alleged
occurrence claiming that they have been falsely implicated. Accused-
appellant Lallan Rai in his examination under Section 313 of the Code of
Criminal Procedure, 1973 (for short the 'Code') claimed that he was not
even present, for which he placed relianc;e on medical certificate. One C
witness was also examined as DW-1. The said witness Narain Chaupal was
a constable who was deputed for the security for accused-appellant Ram
Dular Rai after a dacoity was allegedly committed in his house. The witness
(DW-1) claimed th:it on hearing gunshots he had called appellant-Ram
Dular Rai and his brother Lal Mohar Rai and at his call they came out from I)
their house. In essence, the stand was that since they were at their residence
at that time, they could not have committed the alleged offence. Prosecution
examined 13 witnesses, out of whom Renu Devi (PW-2) is an injured
witness and the informant was PW-6. There were two other eye-witnesses
namely Ramji Singh and Jai .Narain Singh (PWs 1 and 3 respectively). E
Placing reliance on their evidence, the trial Court convicted the appellants
as noted supra.

        In appeal, as noted supra a Division Bench of the Patna High Court
  upheld the conviction of accused-appellant Ram Dular Rai while allowing
. the appeals of other three appellants before it. The conviction under Section F
  307/149 IPC was set aside and rest of the convictions were upheld. The
  High Court held that the accused persons, all armed with guns had come
  to Dalan. Ram Dular Rai fired at the decea~ed in furtherance of a common
  object and, therefore, the others were to be convicted under Section 302
  read with Section 149 IPC. However, the assault on.Renu Devi (PW-2) was G
  a separate offence by Ram Dular Rai and there was no common object
  involved.

        In support of the appeals, learned counsel for the accused-appellants
 submitted that in view of the admitted animosity the evidence does not H
    268                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A   inspire confidence. There was nothing to bring in application of Section
    149 IPC. Accused-appellants 2 to 4 did not make any attempt to enter into
    the house and did not commit any ove1t act. Only one witness (PW-6) has
    stated that all the persons came together. In view of the acquittal of
    appellants 2 to 4 in respect of accusations uncier Section 307 read with
B   Section 149 IPC, Renu Devi (PW-2) ceased to be an injured witness and
    only evidence was that of the informant (PW-6). The so- called eyewitnesses
    could not have identified the persons as claimed. There was no scope for
    recognizing any of the accused. A person lying on a bed immobilized could
    not have made any recognition. As the other witnesses were beyond doors
C   they could. not have seen who was coming and who was going and,
    therefore,· their evidence should be discarded. In any event, the number of
    accused persons does not exceed five and merely because some people
    were claimed to be unidentified persons they were only introduced to bring
    in application of Section 149 IPC. If Section 149 IPC is kept out then
D   Section 34 IPC can be pressed into service and for that there must be a
    participation. There is no evidence of any participation or showing sharing
    of common object. The evidence of DW-l has not been duly considered
    as his evidence clearly rules out the presence of accused appellants Ram
    Dular Rai and Lal Mohar Rai. Even if for the sake of arguments it is
E   accepted that there was definite role attributed to accused appellants I and
    4, that is not sufficient to rope in others. The presence of any dhibri or
    lantern as stated has not been established. The prosecution has introduced
    these two articles to make identification possible. The FIR was ante dated
    as has been clearly noted by the trial Court; but the reason given by the
    investigating officer has been accepted; which should not have been done.
F
         In ~esponse, learned counsel for the State submitted that the evidence
    of D W-1 does not in any way rule out presence of the accused appellants
    l and 4. The High Court has analysed the evidence in detail as the evidence
    of eyewitnesses was categorized to be of partisan nature. The High Court
G   has held that the witnesses were natural witnesses. The conviction and
    consequentially the sentences imposed are well merited and do not deserve
    any interference.

          Coming to the question whether Section 149 has application when
H   presence of more than five persons is established, but only four are
          RAM DULAR RA! v. STATE Of- BIHAR [PASAYAT J.J               269

identified, Section 149 does not require that all the five persons must be A
identified. What is required to be established is the presence of five persons
with a common object of doing an act. If that is established merely because
the other persons present are not identified that does not in any way affect
applicability of Section 149 IPC.

       Another plea which was emphasized relates to the question whether
                                                                            B
Section 149, IPC has any application for fastening the constructive liability
which is the sine qua non for its operation. The emphasis is on the common
object and not on common intention. Mere presence in an unlawful
assembly cannot render a person liable unless there was a common object
and he was actuated by that common object and that object is one of those C
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 detennine is whether the assembly
consisted of five or more persons and whether the said persons entertained
one or more of the common objects, as specified in Section 141. It cannot D
be laid down as a general proposition of law that unless an overt act is
proved against a person, who is alleged to be a member of unlawful
assembly, it cannot be said that he is a member of an assembly. The only
thing required is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall within the E
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,
tha.t is to say, they should all be aware of it and concur in it. A common
object may be formed by express agreement after mutual consultation, but
that is by no means necessary. It may be formed at any stage by all or F
a few members of the assembly and the other members may just join and
adopt it. Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. The expression 'in
prosecution of common object' as appearing in Section 149 have to be
strictly construed as equivalent to 'in order to attain the common object'. G
It must be immediately connected with the common object by virtue of the
nature of the object. There must be community of object and the object
may exist only up to a particular stage, and not thereafter. Members of
an unlawful assembly may have community of object up to certain point
beyond which they may differ in their objects and the knowledge, H
    270                 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A possessed by each member of what is likely to be committed in prosecution
    of their common object may vary not only according to the information
    at his command, but also according to the extent to which he shares the
    community of object, and as a consequence of this the effect of Section
    149, IPC may be different on different members of the same assembly.
B
            'Common object' is different from a 'common intention' as it does
    not require a prior concert and a common meeting of minds before the
    attack. It is enough if each has the same object in view and their number
    is five or more and that they act as an assembly to achieve that object. The
    'common object' of an assembly is to be ascertained from the acts and
C   language of the members composing it, and from a consideration of all the
    surrounding circumstances. It may be gathered from the course of conduct
    adopted by the members of the assembly. What the common object of the
    unlawful assembly is at a particular stage of the incident is essentially a
    question of fact to be determined, keeping in view the nature of the
D   assembly, the arms carried by the members, and the behaviour of the
    members at or near the scene of the incident. It is not necessary under
    law that in all cases of unlawful assembly, with an unlawful common
    object, the same must be translated into action or be successful. Under the
    Explanation to Section 141, an assembly which was not unlawful when it
E   was assembled, may subsequently become unlawful. It is not necessary
    that the object 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
F   unlawful. In other words it can develop during the course of incident at
    the spot co instanti.

          Section 149, IPC consists of two parts. The first part of the section
    means that the offence to be committed in prosecution of the common
    object must be one which is committed with a view to accomplish the
G   common object. In order that the offence may fall within the first part,
    the offence must be connected immediately with the common object of the
    unlawful assembly of which the accused was member. Even if the offence
    committed is not in direct prosecution of the common object of the
    assembly, it may yet fall under Section 141, if it can be held that the offence
H   was such as the members knew was likely to be committed and this is what
          RAM DULARRAI v. STATE OF BIHAR [PASAYAT, J.]                271

is required in the second part of the section. The purpose for which the A
members of the assembly set out or desired to achieve is the object. If
the object desired by all the members is the same, the knowledge that is
the object which is being pursued is shared by all the members and they
are in general agreement as to how it is to be achieved and that is now
the common object of the assembly. An object is entertained in the human B
mind, and it being merely a mental attitude,. no direct evidence can be
available and, like intention, has generally to be gathered from the act
which the person commits and the result therefrom. Though no hard and
fast rule can be laid down under the circumstances from which the common
object can be called out, it may reasonably be collected from the nature
                                                                            C
of the assembly, arms it carries and behaviour at or before or after the scene
of incident. The word 'knew' used in the second branch of the section
implies something more than a possibility and it cannot be made to bear
the sense of 'might have been known'. Positive knowledge is necessary.
When an offence is committed in prosecution of the common object, it
would generally be an offence which the members of the unlawful D
assembly knew was likely to be committed in prosecution of the common
object. That, however, does not make the converse proposition true; there
may be cases which would come within the second part but not within the
first part. The distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue to be determined, E
whether the offence committed falls within the first part or it was an offence
such as the mt.mbers 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 off'!nces
committed in prosecution of the common object, but would be generally, F
 if not always, with the second, namely, offences which the parties knew
to be likely c~mmitted in the prosecution of the common object. [See
Chikkarange Gowda and others v. State of Mysore, AIR ( 1956) SC 731 ].

      The other plea that definite roles have not been ascribed to the
accused and, therefore, Section 149 is not applicable, is untenable. G           1




A 4-Judge Bench of this Court in Masalti and Ors. v. State of U.P., AIR
(1965) SC 202 observed as follows:

              "Then it is urged that the evidence given by the witnesses
         conforms to the same uniform pattern and since no specific part    H
    272                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A            is assigned to all the assailants, that evidence should not have been
             a~cepted. This criticism again is not well founded: Where a crowd
             of assailants who are members of an unlawful assembly proceeds
             to commit an offence of murder in pursuance of the common
             object of the unlawful assembly, it is often not possible for
             witnesses to describe accurately the part played by each one of
B
             the assailants. Besides, if a large crowd of persons armed with
             weapons assaults the intended victims, it may not be necessary
             that all of them have to take part in the actual assault. In the ·
             present case, for instance, several weapons were carried by
             different members of the unlawful assembly, but it appears that
c            the guns were used and that was enough to kill 5 persons. In such
             a case, it would be unreasonable to contend that because the other
             weapons carried by the members of the unlawful assembly were
             not used, the story in regard to the said weapons itself should be
             rejected. Appreciation of evidence in such a complex case is no
D            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 rot."

         To similar effect is the observation in Lalji v. State of UP., [I 989]
E   I sec 437. 1t 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
F            of each case."

          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
G   made to Lalji 's case (supra) where it was observed that "while overt act
    and active participation may indicate common intention of the person
    perpetrating the crime, the mere presence in the unlawful assembly may
    fasten vicariously criminal liability under Section 149".

H         In the present case the evidence of eye-witnesses which has been
          RAM DULAR RAJ v. ST ATE OF BIHAR [PASAYA T, J.]             273

analysed in great detail by both the trial Court and the High Court shows A
that though four appellants were specifically identified, other persons
carrying weapons were present along with the appellants at the time and
place of occurrence. That being so, Section 149 has been rightly applied.

      One of the pleas raised with emphasis related to the evidence ofDW- B
1. On a closer reading of his evidence it is clear that the same does not
in any way improbabilises the presence of the appellants at the time of
occurrence. He only has stated that on hearing his call, appellants I and
4 came near him. The place of occurrence and the place of residence of
A- I are in close proximity. The possibility, as has been highlighted by the
trial Cou11 and the High Court, of the aforesaid two accused appellants C
coming to their respective place of residence after committing the offence
cannot be ruled out and is not physical impracticability or impossibility.
In respect of appellant Lallan Rai it is submitted that he did not fire the
gun. Nothing has been shown about his object or to show that the deceased
was the target. This plea is clearly untenable because whel\ some persons D
came with guns and their actions preceding and succeeding the assault
indicate the existence of a common object to do an act as stipulated in
Section 149, the liability under Section 149 is clearly attracted. The
eyewitnesses to the occurrence as held by the trial Court and the High Court
are natural witnesses and their presence at the spot of occurrence or nearby E
is quite normal. Nothing suspicious has been indicated as to why their
evidence which stood firm in spite of incisive cross-examination is to be
discarded on the hyl'othesis that they are inimical to the accused persons.
Looked at from any angle the judgment of the High Court does not w:rrant
any interference and the appeals fail and are dismissed.
                                                                            F
B.S.                                                  Appeals dismissed.