Lalji
& Ors Vs. State of U.P [1989] INSC 16 (17 January 1989)
Saikia,
K.N. (J) Saikia, K.N. (J) Shetty, K.J. (J)
CITATION:
1989 AIR 754 1989 SCR (1) 130 1989 SCC (1) 437 JT 1989 (1) 109 1989 SCALE (1)77
ACT:
Indian
Penal Code 1860: Sections 141, 149/302.
Unlawful
Assembly--What is--Common object--Ascertainment of.
Distinct
offence created by section 149---Imposes con- structive or vicarious criminal
liability--Offence committed in prosecution of common object--Corroboration as
to partic- ipation of individual members of unlawful assembly--Not
necessary--Prosecution is not obliged to prove overt Act of each member.
Criminal
Trial: Court cannot afford to be charitable in undeserving cases--Essentiality
for peace and order in society.
HEAD NOTE:
The four
appellants along with seven other accused were tried under Sections 147, 148
and 302 read with 149 of the Indian Penal Code. The trial Court convicted the
eight accused, including the four appellants, under section 302/149 I.P.C. and
awarded life imprisonment. Appellants Nos. 1, 2 & 4 were also convicted
under Section 147 I.P.C. and each awarded one years R.I. Appellant No. 3 was
also convicted under Section 148 I.P.C. and awarded two years R.I. The
remaining three accused were acquitted by the Trial Court for want of
corroboration. On appeal by the eight convicted persons the High Court upheld
the conviction of only four appellants on all the counts and allowed the appeal
of the other four co-accused for want of corrobora- tion.
In
this appeal by special leave it was contended that appellants No. 3 and 4
should also be acquitted for want of corroboration as the Trial Court has
acquitted three accused and the High Court, on appeal, has further acquitted
four accused for want of corroboration.
The
appeal was contested on behalf of the State contend- ing that in case of
conviction under section 302 read with section 149 of the I.P.C. corroboration
in case of individu- al accused was not necessary and there 131 was enough
corroboration on record to prove that the accused were members of the unlawful
assembly at the time of commis- sion of offence.
Dismissing
the appeal,
HELD:
1. Section 149 creates a specific and distinct offence. It imposes constructive
or vicarious criminal liability of the members of the unlawful assembly for the
unlawful acts committed pursuant to the common object by any other member of
the assembly. [135B]
1.1.
It is not necessary that all persons forming an unlawful assembly must do some
overt acts. The section makes a member of the unlawful assembly responsible as
a principal for the acts of each, and all, merely because he is a member of an
unlawful assembly. While overt acts and active partic- ipation may indicate
common intention of the persons perpe- trating the crime, the mere presence in
the unlawful assem- bly may fasten vicarious criminal liability under the sec- tion.
The basis of the constructive guilt under section 149 is mere membership of the
unlawful assembly, with requisite common object or knowledge. [135E-F]
1.2.
The two essentials of the section are the commis- sion of an offence by any
member of an unlawful assembly and that such offence must have been committed
in prosecution of the common object of that assembly or must be such as the
members of that assembly knew to be likely to be committed.
The
common object of the assembly must be one of the five objects mentioned in
section 141 of the Indian Penal Code. [134G-H]
2. In
an appeal by the persons convicted under section 302 with the aid of section
149 I.P.C. the question whether a particular person was a member of the
unlawful assembly at the relevant time may be examined; and if it is found from
the evidence on record that he was not a member of the unlawful assembly, he
could not be convicted with the aid of section 149. [136F-G]
2.1.
But once the Court holds that certain accused persons formed an unlawful
assembly and an offence is com- mitted by any member of that 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 that offence was a member of the same
assembly is to be held guilty of that offence. After such a finding it is not
open to the 132 Court to see as to who actually did the offensive act. The
prosecution is not obliged to prove which specific overt act was done by which
of the accused. [135G-H; 136A]
2.2.
From the evidence on record it has been satisfacto- rily established that appellants
No. 3 and 4 were members of the unlawful assembly at the relevant time. Both
the Courts below have held them to have been members of the unlawful assembly. The
fact that they were not active participants and whether any specific injury
could individually be at- tributed to them or not are not at all material.
[136D-E]
2.3.
In the instant case the High Court having held that the appellants formed an
unlawful assembly carrying danger- ous weapons with the common object of
resorting to violence and committed an offence punishable with the aid of
Section 149 I.P.C. erred in acquitting some of the members on the ground that
they themselves did not perform any violent act or that there was no
corroboration of their participation.
Doing
so would amount to forgetting the very nature and essence of the offence
created by Section 149. [136B-D]
2.4
The Court in undeserving cases cannot afford to be charitable in the
administration of criminal justice which is so vital for peace and order in the
society. [136D]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 227 of 1983.
From
the Judgment and Order dated 19.8.1982 of the Allahabad High Court in Crl.
Appeal No. 680 of 1976.
R.L. Kohli
and Shakil Ahmed Syed for the Appellants.
Prithvi
Raj and Dalveer Bhandari for the Respondent.
The
Judgment of the Court was delivered by K.N. SAIKIA, J. This appeal by special
leave is from the judgment of the High Court of judicature at Allahabad in
Criminal Appeal No. 680 of 1976 dismissing the appeal of the four instant
appellants namely, Lalji, Mansa, Milkhi and Bhagwati and upholding their
conviction and sentence of life imprisonment under Sections 302/149 and also
the conviction of Milkhi with sentence of two years R.I. under section 148
I.P.C and of the other three appellants under Section 147 I.P.C. with sentence
of one year R.I. 133 The facts are simple. On 24.6.1975 at noon Manju, son of Girdhaft Lal, man-handled Chhotey Lal and Mansa,
nephews of Minister Lal, after they gave him (Manju) a push. The prose- cution
version was that Minister Lal with a cane in hand, Chhotey Lal with a Kanta, Milkhi
and Chainu with spears and others with lathis arrived near Girdhaft Lal's house
and after an altercation started assaulting Girdhaft and Siddhu.
The
alarm attracted Ram Avtar and Manju who came there.
The appellants
party started assaulting them also whereupon they retreated to their house but
were followed by Minister Lal, Lalji and others of the party. Girdhaft Lal and Siddhu
died in consequence of the assault. Ram Avtar picked up the loaded gun of his
father Girdhaft and fired a shot at Minis- ter Lal who fell down dead and by
another shot he injured Lalji.
The defence
version was that Girdhaft Lal summoned Minister Lal to his house and the
accused persons came with or after Minister Lal. This resulted in a cross case
on Lalji's F.I.R. (Ex. Ka-19). It has admittedly resulted in acquittal.
The
present case was registered under F.I.R. (Ex. Ka-l) upon the information lodged
by Babu Ram son of Siddhu at P.S. Maigalganj. Altogether eleven persons,
including the appellants herein faced trial. The learned trial court relying on
the evidence of the three eye witnesses convicted eight and acquitted three of
them, namely, Ram Lotan, Kripa Dayal and Barkau. The eight convicted persons
were appel- lants before the High Court in Criminal Appeal No. 680 of 1976. Out
of them conviction of four appellants was upheld, while the other four, namely,
Shiv Kumar, Chottey Lal, Munna and Chainu were acquitted by the High Court.
The
learned counsel for the appellants Mr. R.L. Kohli, Sr. Advocate submits that as
out of the eleven persons three were acquitted by the trial court and four were
acquitted by the High Court as there was no corroboration in their cases, the
position of two of the appellants, namely, Milkhi and Bhagwati remains the same
and they must also be similarly acquitted for want of corroboration.
The
learned counsel for the State Mr. Prithvi Raj, Sr. Advocate counters submitting
that when the appellants have been convicted under section 302/149 I.P.C the
question of corroboration in case of individual appellants would not arise; and
there is enough corrobora- 134 tion in the evidence including medical evidence
on record to prove that they were members of the unlawful assembly when the
offence was committed.
The
precise question to be decided in this appeal, therefore, is whether in view of
death caused to Girdhaft and Siddhu by the unlawful assembly which is
punishable under section 302 with the aid of Section 149 I.P.C. the
corroboration as to participation of each individual member of the assembly
would be necessary, and if so, whether in the instant case there is such
corroboration..
Section
149 I.P.C. provides that if an offence is com- mitted by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such
as the mem- bers 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. As has
been defined in Section 141 I.P.C., an assembly of five or more persons is designat-
ed an 'Unlawful Assembly', if the common object of the persons composing that
assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third',
'Fourth', and 'Fifth' of that section. An assembly, as the explanation to the
section says, which was not unlawful when it assembled, may subsequently become
an unlawful assembly. Whoever being aware of facts which render any assembly an
unlawful assem- bly intentionally joins that assembly, or continues in it, is
said to be a member of an unlawful assembly. Thus, when- ever so many as five
or more persons meet together to sup- port each other, even against opposition,
in carrying out the common object which is likely to involve violence or to
produce in the minds of rational and firm men any reasonable apprehension of
violence, then even though they ultimately depart without doing anything
whatever towards carrying out their common object, the mere fact of their
having thus met will constitute an offence. Of course, the alarm must not be
merely such as would frighten any foolish or timid person, but must be such as
would alarm person of reasonable firm- ness and courage. The two essentials of
the section are the commission of an offence by any member of an unlawful assem-
bly and that such offence must have been committed in prose- cution of the
common object of that assembly or must be such as the members of that assembly
knew to be likely to be committed. Not every person is necessarily guilty but
only those who share in the common object. The common object of the assembly
must be one of the five objects mentioned in Section 141 I.P.C. Common object
of the unlawful assembly can be gathered from the nature of the assembly, 135
arms used by them and the behaviour of the assembly at or before scene of
occurrence. It is an inference to be deduced from the facts and circumstances
of each case.
Section
149 makes every member of an unlawful assembly at the time of committing of the
offence guilty of that offence. Thus this section created a specific and
distinct offence. In other words, it created a constructive or vicar- ious
liability of the members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful assembly
extends only to the acts done in pursuance of the common object of the unlawful
assembly, or to such offences as the members of the unlawful assembly knew to
be likely to be committed in prosecution of that object. Once the case of a
person fails within the ingredients of the section the question that he did
nothing with his own hands would be immaterial. He cannot put forward the defence
that he did not with his own hands commit the offence committed in prosecution
of the common object of the unlawful assembly or such as the mem- bers of the
assembly knew to be likely to be committed in prosecution of that object. Everyone
must be taken to have intended the probable and natural results of the
combination of the acts in which he joined. It is not necessary that all the
persons forming an unlawful assembly must do some overt act. When the accused
persons assembled together, armed with lathis, and were parties to the assault
on the complainant party, the prosecution is not obliged to prove which specif-
ic overt act was done by which of the accused. This section makes a member of
the unlawful assembly responsible as a principal for the acts of each, and all,
merely because he is a member of an unlawful assembly. 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. It must be noted that the basis of the
constructive guilt under section 149 is mere membership of the unlawful
assembly, with the requisite common object or knowledge.
Thus,
once the Court hold that certain accused persons formed in unlawful assembly
and an offence is committed by any member of that 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 was a member of the same assembly is to
be held guilty of that offence. After such a finding it would not be open to
136 the Court to see as to who actually did the offensive act or require the
prosecution to prove which of the members did which of the offensive acts. The
prosecution would have no obligation to prove it.
In the
instant case after having held that the appel- lants formed an unlawful
assembly carrying dangerous weapons with the common object of resorting to
violence (as de- scribed in the charge) it was not open to the High Court to
acquit some of the members on the ground that they them- selves did not perform
any violent act, or that there was no corroboration of their participation. In
other words, having held that they formed an unlawful assembly and committed an
offence punishable with the aid of section 149 I.P.C., the High Court erred in
examining which of the members only did actively participate and in acquitting
those who, according to the Court, did not so participate. Doing so would
amount to forgetting the very nature and essence of the offence created by
section 149 I.P.C The Court in undeserving cases cannot afford to be charitable
in the administration of criminal justice which is so vital for peace and order
in the society.
On the
basis of the evidence on record Milkhi and Bhag- wati's membership of the
unlawful assembly at the relevant time has been satisfactorily established.
Both the courts below having held them to have been members of the unlawful
assembly, the mere fact that they were not active partici- pants, would be of
no avail. It is not open to the court to scrutinise as to whether any member of
the unlawful assembly actively participated.
In an
appeal by persons convicted under Section 302 with the aid of 149 I.P.C., the
question whether a particular person was a member of that unlawful assembly at
the rele- vant time may of course be examined; and if it is found from the
evidence on record that he was not a member of the unlawful assembly, he could
not be convicted with the aid of section 149. The question to be examined by us
in the in- stant case is whether Milkhi and Bhagwati were members of the
unlawful assembly at the relevant time and not whether there was enough
corroboration for their individual partici- pation in the commission of the
offence.
It has
not been denied that the names of Milkhi and Bhagwati were mentioned in the
F.I.R. (Ex. Ka-l). P.W. 2 Manju son of Girdhari, whose presence at the place of
occur- rence has not been challenged, mentioned Milkhi and Bhagwati among the
accused persons with their relationship. He cate- gorically stated that the
two, amongst others, 137 were present at his house beating his father and uncle
and chasing him and Ram Avtar. Milkhi according to him had a spear in his hand.
Manju denied the suggestion that Milkhi and Bhagwati were standing there on the
side of the witness- es. P.W. 3 Smt. Ram Devi clearly corroborated Milkhi's
participation. P.W. 1 Babu Ram while giving vivid descrip- tion of the
occurrence stated that Milkhi was there in the assembly with spear and Bhagwati
with a lathi and that all the persons present beat Girdhaft and Siddhu. Milkhi
also assisted in carrying Minister Lal after he was shot. In reply to the
question who beat Manju he clearly stated that Mansa and Bhagwati beat him with
lathi when he was entering the house. D.W. 2 Lalji stated that at the time of
the occurrence Puran, Bhagwati, Kripal etc. had also come. In the F.I.R. (Ex.
Ka-19/C.I) lodged by Lalji on the same occurrence presence of Milkhi and Bhagwati
was admitted by him. The submission that they were mere spectators could not be
believed.
From
the above evidence on record it could not be held that Milkhi and Bhagwati were
not members of the unlawful assembly at the the relevant time. Whether any
specific injury could individually be attributed to them or not could not at
all be material. The submission that the two be acquitted on ground of lack of
corroboration has, therefore, to be rejected.
In the
facts and circumstances of the case it is not open to this Court to apply the
reasoning of the High Court to acquit members of the unlawful assembly for lack
of corroboration as to their participation.
No
other submission was made for the other appellants.
In the
result, we do not find any merit in this appeal and hence it is dismissed.
Appellant
Mansa is on bail. He shall surrender to serve out his sentence.
T.N.A.
Appeal dismissed.
Back