Supreme Court of India
SHIVJEE SINGH AND ORS.versusSTATE OF BIHAR
- Citation
- 2008 INSC 879
- Decided
- 30 July 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
A conviction under Section 149 IPC cannot stand where the common object of the unlawful assembly is not proved; thus the murder conviction under Section 302 read with Section 149 was set aside, while the conviction under Section 147 was upheld.
Summary
The case arose from a violent incident on Holi in 1993 where Satya Narain Singh and his son Ambika Singh, along with several others, threw stones at a house and Ambika Singh fired a gun, killing one person and injuring others. The trial court convicted the accused under Sections 302, 148, 149 of the Indian Penal Code and Section 27 of the Arms Act, and the High Court upheld these convictions. On appeal, the Supreme Court examined whether Section 149 IPC could be invoked without proof of a common object among the assembly members, distinguishing it from common intention. The Court held that without a proved common object, liability under Section 149 cannot be attached, and the conviction for murder under Section 302 read with Section 149 was set aside for the appellants in Criminal Appeal No.1494 of 2004. However, the conviction under Section 147 IPC, which deals with rioting, was upheld and the sentence reduced to three months. The Court dismissed the separate appeal (Criminal Appeal No.484 of 2006) where the evidence supported the convictions. Consequently, the appeal was partly allowed and the other appeal dismissed.
Issues considered
- The applicability of Section 149 IPC where the existence of a common object of the unlawful assembly is not established
- Whether mere presence in an unlawful assembly suffices for conviction under Section 149
- The distinction between common object and common intention in the context of Section 149
Legislation cited
- Arms Act, 1959s. 27
- Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302
Subjects
Section 149 IPCunlawful assemblycommon objectconstructive liabilitymurderriotingArms Actcriminal appeal
Judgment
[2008] 11 S.C.R. 548
-1· ,...
A SHIVJEE SINGH AND ORS.
V." .
STATE OF BIHAR
(Criminal Appeal No.1494 of 2004)
JULY 30, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM )' ""-
SHARMA, JJ.]
Penal Code, 1860:
c s. 149 - Applicability of - Held: Not applicable when com-
mon object of unlawful assembly not proved.
s. 149 - Common object - Connotation of - Held: The
object should be common to the persons who compose the
assembly- It may be formed at any stage by all or a few mem-
D bers of the assembly - 'Common object' of an assembly is to
be ascertained from the acts and language of the members
composing it, and from a consideration of all the surrounding -i---
circumstances - On facts, Appellant-father urged his son to
fire from his gun whereafter son fired a shot resulting in death
E of one and injuries to other - Conviction of appellant-son un-
der ss.302 and s.148 and s.27 of Arms Act upheld - Convic-
tion of appellant-father under ss. 302, 147 and 149 also up-
held - Five other appellants who were pelting stones from the
roof were convicted under ss. 302, 147 and 149 - Their con-
F viction under ss. 302 and 149 is set aside, but conviction un-
der s.147 is maintained.
Prosecution case was that on the fateful day, when
PW-1 was sitting at his Dalan, 'SNS' and his son 'AS', ap-
pellants in appeal no.484 of 2006 and other accused per-
G sons came there and started quarrelling and abusing PW-
1. 'SNS' then took the other accused who are appellants
in appeal no.1494 of 2004 to roof top and from there
started petting stones on the roof of the house of PW-1.
'SNS' urged his son as to open fire from his gun. 'AS'
H 548
SHIVJEE SINGH AND ORS. v. STATE 549
OF BIHAR
_, ,..
thereafter fired a shot which hit the deceased resulting in A
his death. 'AS' fired seven to eight shots that caused inju-
ries to PW-3, PW-10 and PW-6. One of the stones thrown
by SNS hit PW-5 and caused injury to him.
'SNS' and 'AS' were convicted for offence punish-
able under Section 30.2 and Seclion 148 IPC and Section B
"' -( 27 of Arms Act and sentenced to undergo life imprison-
ment, three years and five years respectively for the three
offences. All the five appellants in appeal no. 1494 of 2004
were found guilty of offence punishable under Section
302 r.w. Section 149 IPC and Section 147 and sentenced c
to life imprisonment and two years respectively.
The High Court dismissed the appeals rejecting the
plea of the appellants that the evidence of witnesses
should not be relied upon as there was sudden pre-fight
D
and, therefore, Section 149 has no application. Hence
.~-~
these appeals .
Partly allowing appeal no.1494 of 2004 and dismiss-
ing appeal no. 484 of 2006, the Court
HELD: 1.1. A plea which was emphasized by the ap- E
pellants relates to the question whether Section 149, IPC
has any application for fastening the constructive liabil-
ity which is the sine qua non for its operation. The em-
phasis is on the common object and not on common in-
tention. Mere presence in an unlawful assembly cannot F
render a person liable unless there was a common ob-
""' ject and he was actuated by that common object and that
object is one of those set out in Section 141. Where com-
man object of an unlawful assembly is not proved, the
accused persons cannot be convicted with the help of G
Section 149. The crucial question to determine is whether
the assembly consisted of five or more persons and
..,. whether the said persons entertained one or more of the
,
common objects, as specified in Section 141. It cannot
be laid down as a general proposition of law that unless H
550 SUPREME COURT REPORTS [2008] 11 S.C.R.
A 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
B fall within the purview of Section 141. The word 'object'
means the purpose or design and, in order to make it 'com-
mon.', it must be shared by all. 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
c stage by all or a few members of the assembly and the
other members may just join and adopt it. Once formed, it
need not continue to be the same. It may be modified or
altered or abandoned at any stage. The expression 'in pros-
ecution of common object' as appearing in Section 149
have to be strictly construed as equivalent to 'in order to
D
attain the common object'. It must be immediately con-
nected with the common object by virtue of the nature of
the object. Members of an unlawful assembly may have .>--- .....
community of object up to certain point beyond which they
may differ in their objects and the knowledge, possessed
E by each member of what is likely to be committed in pros-
ecution of their common object may vary not only accord-
ing 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,
F IPC may be different on different members of the same
assembly. [Para 8] [556-H; 557-A-H; 558-A-B]
~
1.2. 'Common object' is different from a 'common in-
tention' as it does not require a prior concert and a com-
mon meeting of minds before the attack. It is enough if
G
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 as-
certained from the acts and language of the members ..,
composing it, and from a consideration of all the surround-
H
SHIVJEE SINGH AND ORS. v. STATE 551
...... ... OF BIHAR
ing circumstances. It may be gathered from the course of A
conduct adopted by the members of the assembly. For
determination of the common object of the unlawful as-
sembly, the conduct of each of the members of the un-
lawful assembly, before and at the time of attack and there-
... ~
after, the motive for the crime, are some of the relevant B
·j considerations. What the common object of the unlawful
assembly is at a particular stage of the incident is essen-
tially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the mem-
bers, and the behaviour of the members at or near the scene c
of the incident. It is not necessary under law that in all cases
of unlawful assembly, with an unlawful common object,
the same must be translated into action or be successful.
Under the Explanation to Section 141, an assembly which
was not unlawful when it was assembled, may subse-
D
quently become unlawful. It is not necessary that the in-
-~
tention 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 mate-
rial. An assembly which, at its commencement or even for
some time thereafter, is lawful, may subsequently become E
unlawful. In other words it can develop during the course
of incident at the spot co instanti. [Para 9] [558-8-G]
1.3. Section 149, IPC consists of two parts. The first
part of the section means that the offence to be commit- F
......
•" ted in prosecution of the common object must be one
which is committed with a view to accomplish the com-
mon 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
G
the accused was member. Even if the offence committed
. )"
is not in direct prosecution of the common object of the
assembly, it may yet fall under Section 141, if it can be
held that the offence was such as the members knew was
likely to be committed and this is what is required in the
H
552 SUPREME COURT REPORTS [2008] 11 S.C.R.
.., I--
A second part of the section. The purpose for which the '
l;
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
B general agreement as to how it is to be achieved and that .
is now the common object of the assembly. An object is )' .<'.
entertained i.n the human mind, and it being merely a men-
tal attitude, no direct evidence can be available and, like
intention, has generally to be gathered from the act which
c the person commits and the result therefrom. 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
D
be an offence which the members of the unlawful assem-
bly knew was likely to be committed in prosecution of the ~-
common object. That, however, does not make the con-
verse proposition true; there may be cases which would
come within the second part but not within the first part.
E The distinction between the two parts of Section 149 can-
not be ignored or obliterated. In every case it would be an
issue to be determined, whether the offence committed falls
within the first part or it was an offence such as the mem-
bers of the assembly knew to be likely to be committed in
F prosecution of the common object and falls within the sec-
ond part. However, there may be cases which would be ~ A
within first part, but offences committed in prosecution of
the common object would be generally, if not always, be
within the second part, namely, offences which the parties
G knew to be likely committed in the prosecution of the com-
mon object. [Para 10] [558-H; 559-A-H; 560-A-B]
Chikkarange Gowda and others v. State of Mysore AIR ..,,
1956 SC 731; State of UP v. Dan Singh and Ors. 1997 (3)
/
...
SCC 747; Lalji v. State. of UP 1989 (1) SCC 437; Gangadhar
H
SHIVJEE SINGH AND ORS. v. STATE 553
OF BIHAR [DR. ARIJIT PASAYAT, J.]
Behera and Ors. v. State of Orissa 2002 (8) SCC 381 - relied on. A
2. Considering the factual scenario in the back-
ground of the principles, conviction of the appellants in
Criminal appeal no.1494 of 2004 under Section 302 read
with Section 149 is set aside. But the sentence imposed
for the offence punishable under Section 147 is main- 8
tained. The sentence shall be three months for the offence
punishable. So far the appeal no.484 of 2006 is concerned,
the evidence brought on record clearly establish the ac-
cusations. [Para f3] [560 F-G]
c
Case Law Reference
AIR 1956 SC 731 relied on Para 10
1997 (3) sec 747 relied on Para 11
1989 (1) sec 437 relied on Para 11 D
2002 (8) sec 381 relied on Para 12
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 1494 of 2004
From the Judgment and Order dated 5.4.2004 of the High E
Court of Judicature at Patna in Crl. Appeal No. 408 of 1998
WITH
Criminal Appeal No. 484 of 2006 ·
F
J.C. Gupta, Raj Kishor Roy, K.K. Mishra, Anurag Tomar
and Rameshwar Prasad Goyal for the Appellants.
Gopal Singh, Manish Kumar and Vimla Sinha for the Re-
spondent.
G
The Judgment of the Court was delivered by
-
l'
~
DR. ARIJIT PASAYAT, J. 1. These two appeals have a
common matrix in judgment of the Division Bench of the Patna
High Court. Two appeals were disposed of by the common judg-
ment. In Criminal Appeal no.408 of 1998 there were six appel- H
554 SUPREME COURT REPORTS [2008] 11 S.C.R.
.,).
'f
A lants whereas in Criminal Appeal no.458 of 1998 there was
one appellant. In the two appeals before this Court there are
five appellants in the Criminal Appeal no.494/2004, and there
are two appellants in Criminal Appeal no.484/2006. All the five
appellants in Criminal Appeal No.1494 of 2004 were found guilty
B of offence punishable under Section 302 read with Section 149
of the Indian Penal Code, 1860 (in short 'IPC') and Section 147. -r- ..
Similar was the conviction recorded in case. of Satya Narain
Singh, one of the appellants in Criminal Appeal no.484 of 2006.
Ambika Singh the other appellant in Criminal Appeal no.484 of
2006 was convicted for offence punishable under Sections 302
c and 148 IPC and Section 27 of the Arms Act, 1959 (in short 'Arms
Act'). Appellants in Criminal Appeal no.1494 of.2004 were sen-
tenced to life imprisonment and two years respectively. Similar
was the case of Satya Narain Singh-appellant in Criminal Ap-
peal no.484 of 2006. Ambika Singh-appellant in criminal appeal
D no.484 of 2006 was sentenced to undergo life imprisonment,
three years, and five years for the three offences noted above. ~-~
2. Background facts giving rise to the trial are as follows:
At sunset time on the day of Holi (the date being 9.3.1993)
E Bhagwan Singh (P.W.1) was sitting at his Dalan. Satya Narain
Singh came there in an inebriated state and started quarreling
with him and abusing him. Bhagwan Singh asked him to stop
the abuses and to go away. On this Satya Narain Singh called
his family members. Ambika Singh, one of his three sons came
F armed with his gun; others carried sticks, stones and brick
pieces in their hands. On hearing the exchange of hot words a ).-.
number of villagers came there. Some of them were singing
Holi songs at the nearby Devi Asthan and on hearing the noise
they came to the Dalan of Bhagwan Singh. Others who were
G neighbours also came. The villagers coming there asked Satya
Narain Singh to stop the quarrel and scolded him. Satya Narain ~
·Singh then took his relatives to his roof-top .and from there they (
started throwing stones and pieces of bricks at the tiled roof of ~ ,.
the house of Bhagwan Singh. Satya Narain Singh urged his
son Ambika Singh to open fire from his gun. So, ordered by hiB
H
•
SHIVJEE SINGH AND ORS. v. -STATE 555
OF BIHAR [DR. ARIJIT PASAYAT, J.]
p ...
father, Ambika Singh fired a shot tha.t hit Meghnath Singh (here- A
inatter referred to as the 'deceased') on his back and as a re-
suit he fell down and died. Ambika Singh fired seven to eight
shots that caused injuries to Ram Pran Singh (PW 3), Sri Ram'
• Singh (PW 10) and Umesh Singh (PW 6). One of the stones
thrown by Satya Narain Singh hit Suraj Singh (PW 5) and caused B
_, injury to him. After the occurrence the injured were carried on a
~
-I
tractor to Ara towri where they were admitted to the Sadar Hos-
_,I pital and were treated there for about·a week.
Sitaram Singh (PW 15) who at that time was the officer
lncharge of Ayar P.S. was going round the villages under his c
P.S. for maintaining peace and order on the day of Holi. At vii-
lage Bargaon he came to learn that gun shots were fired at
Medhapur village. From there he proceeded to Medhapur along
~ith-an·armed police party and reached there at about 10.30 in·
the night. There-he ·recorded the statement of Babula! ·Singh D
(PW 12), the brother .of the deceased in presence of a witness
~""' Baleshwar·Singh (PW 2). The statement was recorded as fard-
e-bayan (Ext.1) on the basis of which a formal F.l.R. (Ext. 7)
was later drawn up on 10.3.1993 at 00.30 hrs. giving rise to
Jagdishpur (Ayar) PS Case No.27 of 1993. After recording the
E
fard-d-bC!yan he took up investigation of the case, recorded the
statements of other witnesses who were available there, exam-
ined the place of occurrence and prepared the inquest report
(Ext. 2) of the decea~ed Meghnath Singh.
On completion of investigation he submitted charge sheet F
-,. ~ against the appellants. They were put up on trial and at the end
~
were conv"icted and sentenced as indicated above.
. It may be mentioned here that in regard to the same occur-
rence a case was instituted, from the side of the appellants as·
well. That was registered as Jagdishpu~ (Ayar) PS CasE? No.28 G
of 1993 under Sections 147, 148, 149, 323, 447, 337 and 325 of·
the Indian Penal Code and Sections 27 of the Arms Act. In that
case some of the witnesses examined by the prosecution in the:
present case, along with some others were named as accused.
That case is said to be pending trial before a Magistrate. H
A
556 SUPREME COURT REPORTS [2008] 11 S.C.R.
3. 17 witnesses were examined by the prosecution to es-
·; -
tablish the prosecution version. PWs 1 to 6 and 9 to 12 were
stated to be eye witnesses. PWs 3, 5, 6 and 10 were injured
witnesses. The trial Court placed reliance on their evidence and
found accused appellants guilty as noted above.
B 4. In appeal, the High Court rejected the plea of the appel~
lant that the evidence of witnesses should not have been relied
upon as there was sudden pre-fight and, therefore, Section 149
has no application. The High Court, as noted above, dismissed
the. appeal.
c
5. In support of the appeal learned counsel for the appel-
lant submitted that so far as applicability of Section 149 IPC is
~
concerned, there was no discussion either by the Trial Court or i
the High Court. The appellant in Criminal Appeal no.1494 of. '
2004 is stated to have pelted stones on the house of the de-
D ceased. That is not sufficient to attract Section 302/149 IPC.
According to the prosecution version accused-Ambika Singh
fired the shots aftetthe pelting of the stones has stopped. The
role ascribed to Satya Narain Singh was that he was exhorting
Ambika Singh to fire.
E
6. Learned counsel for the respondent-State on the other hand
supported the judgments of the Trial Court and the High Court.
)--
7. We shall first deal with the applicability of Section149 ''
IPC. So far appellants in Criminal Appeal no.1494 of 2004 are
F concerned, it is pointed out by the prosecution that the stones ~
~
)...
were pelted by the accused persons with a view to damage the i~
roof and did last only for two to three minutes. It is also stated by ·-
the witnesses that only after the stopping of the pelting of stones,
firing was done. It is, therefore, stated by learned counsel for l
G the appellant in Criminal Appeal no.1494 of 2004 that neither
the Trial Court nor the High Court has analysed the aspect re-
lating to applicability of Section 149 IPC. Abrupt conclusions
have been arrived at about the applicability of the provisions.
8. A plea which was emphasized by the appellants relates
H
SHIVJEE SINGH AND ORS. v. STATE 557
.... -f" OF BIHAR [DR. ARIJIT PASAYAT, J.]
to the question whether Section 149, IPC has any application A
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 assem-
bly cannot render a person liable unless there was a common
... -1 object and he was actuated by that common object and that 8
object is one of those set out in Section 141 . Where common
object of an unlawful assembly is not proved, the accused per-
sons cannot be convicted with the help of Section 149. The cru-
cial question to determine is whether the assembly consisted
-t of five or more persons and whether the said persons enter- c
tained one or more of the common objects, as specified in Sec-
tion 141. It cannot be laid down as a general proposition of law
that unless a:n overt act is proved against a person, who is al-
leged to be a member of unlawful assembly, it cannot be said
that he is a member of an assembly. The only thing required is
D
- .-'. that he should have understood that the assembly was unlawful
and was likely to commit any of the acts which fall within the
purview of Section 141. The word 'object' means the purpose
or design and, in order to make it 'common', it must be shared
by all. In other words, the object should be common to the per-
sons, who compose the assembly, that is to say, they should all E
be aware of it and concur in it. A common object may be formed
by express agreement after mutual consultation, but that is by
no means necessary. It may be formed at any stage by all or a
few members of the assembly and the other members may just
~ --ct join and adopt it. Once formed, it need not continue to be the F
same. It may be modified or altered or abandoned at any stage.
The expression 'in prosecution of common object' as appear-
ing in Section 149 have to be strictly construed as equivalent to
'in order to attain the common object'. It must be immediately
connected with the common object by virtue of the nature of the G
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 o.bject up to
certain point beyond which they may differ in their objects and
the knowledge, possessed by each member of what is likely to H
~-
558 SUPREME COURT REPORTS [2008] 11 S.C.R.
i. ,.
A 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 ob-
ject, and ·as a consequence of this the effect of Section 149, IPC
may be ~ifferent on different members of the same assembly.
B 9. 'Common object' is differentfrom a 'common intention'
r
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 ob-
ject 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
c assembly is to be ascertained from the acts and language of
the members composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the course
of conduct adopted by the members of the-assembly.. For de-
termination of the common object of the unlawful assembly, the
D conduct of each 0.f the members of the unlawful assembly, be'.'
fore and at the time of attack and thereafter, the motive for the
~-
crime, are some of the relevant considerations. What the com-
mon object of the unlawful assembly is at a particular s.tage of
the incident is essentially a question of fact to be determined,
E keeping in view the nature of the-assembly, the arms carried by
the members, and the behaviour of the members at or near the
scene of the incident. It is not necessary under law that in all
cases of unlawful assembly, with an unlawful common object;
the same must be translated into action or be successful. Un-
F der the Explanation to Section 1,41, an assembly which was not
unlawful when it was assembled, may-subsequently become
unlawful. It is not necessary that the intention or the purpose,
which is necessary to render an assembly an unlawful one comes
:>-
-
into existence.at the outset. The time of forming an unlawful in:-
tent ·is not material. An assembly which, at its commencement
G
or even for some time thereafter, is.lawful, may subsequently
become unlawful. In other words it can develop during the course
of incident at the spot co instanti. ..,
10. Section 149, IPC consists of two parts. The ffrst part
H of the section means that the offence to be committed in pros:-
SHIVJEE SINGH AND ORS. v. STATE 559
OF BIHAR [DR. ARIJIT PASAYAT, J.]
ecution of the common object must be one which is committed A
with a view to accomplish the common object. In order that the
offence may fall within the first part, the offence must be con-
nected immediately with the common object of the unlawful as-
sembly of which the accused was member. Even if the offence
committed is not in direct prosecution of the common object of B
the assembly, it may yet fall under Section 141, if it can be held
that the offence was such as the members knew was likely to
be committed and this is what is required in the second part of
the section. The purpose for which the members of the assem-
bly set out or desired to achieve is the object. If the object de- c
sired by all the members is the same, the knowledge that is the
object which is being pursued is shared by all the members
and they are in general agreement as to how it is to be achieved
and that is now the common object of the assembly. An object
is entertained in the human mind, and it being merely a mental
0
attitude, no direct evidence can be available and, like intention,
has generally to be gathered from the act which the person com-
mits and the result therefrom. Though no hard and fast rule can
be laid down under the circumstances from which the common
object can be called out, it may reasonably be collected from
the nature of the assembly, arms it carries and behaviour at or E
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 F
would generally be an offence which the members of the unlaw-
ful 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 be- G
tween the two parts of Section 149 cannot be ignored or oblit-
erated. In every case it would be an issue to be determined,
whether the offence committed falls within the first part or it was
an offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object and H
560 SUPREME COURT REPORTS [2008) 11 S.C.R.
A falls within the second part. However. there may be cases w~ich
..,. .,.
would be within first part, but offences committed in prosecu-
tion of the common object would be generally, if not always, be
within the second part, namely, offences which the parties.knew
to be likely committed in the prosecution of the common o,bje.ct.
B (See Chikkarange Gowda and others v. State of Mysore: AIR
1956 SC 731.)
11. In State of UP v. Dan Singh and Ors. (1997 (3) SCC
74 7) it was observed that it is not necessary for the prosecution
to prove which of the members of the unlawful assembly did
c which or what act. Reference was made to Lalji v. State of UP
(1989 (1) sec 437) where it was observed that:
"while overt act and active participation may indicate com-
mon intention of the person perpe~rating the crime, the mere
presence in the unlawful assembly may fasten vicariously crimi-
D
nal liability under Section 149".
12. This position has been elaborately stated by this Court .Ji-~
in Gangadhar Behera and Ors. v. State of Oiissa (2002 (8)
sec 381).
E 13. When the factual scenario is considered in the back-
ground of the above principles set out above, the inevitable
conclusion is that the appeal filed by the appellants in Criminal
Appeal no.1494 of 2004 deserves to be allowed. Their convic-
tion is set aside so far their conviction under Section 302 read
F with Section 149 IPC is concerned. Butthe sentence imposed
for.the offence punishable under Section 147 is maintained.
The sentence shall be three months for the offence punishable.
So far the other a·ppeal is concerned, the evidence brought on
record clearly establish the accusations. Therefore, while Crimi-
G nal Appeal no.1494 of 2004 is partly allowed, Criminal Appeal
no.484 of 2006 is dismissed. ;
D.G. Criminal Appeal No. 1494 of2004
..,.
partly allowed and C~dminal
Appeal No. 484 of 2006 dismissed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 149 IPC"Sign in to search