State
of Punjab Vs.
Sanjiv Kumar @ Sanju and Ors [2007] Insc 696 (14 June 2007)
Dr. ARIJIT PASAYAT & B.P. SINGH
Dr. ARIJIT PASAYAT, J.
1. The State of Punjab is in appeal against the judgment of Punjab and
Haryana High Court. While upholding the conviction of two accused persons,
namely, Vishal and Anil Kumar, High Court directed acquittal of the
respondents. In case of co-accused Gangadhar, conviction was altered to Section
324 of the Indian Penal Code, 1860 (in short the IPC).
In all, 9 persons faced trial and the Trial Court had found each to be
guilty of offences punishable under Sections 302, 323 read with Section 149
IPC.
2. Seven appeals were filed by eight of accused persons. As noted above, the
High Court directed acquittal of the respondents while disposing of the appeal
of Vishal and Anil and altered the conviction of Gangadhar.
3. The background facts in a nutshell are as follows:
The accused persons had gone for a pleasure trip to Manali in the year 1994.
They had some joint photographs.
These photographs were in possession of accused Anil Kumar alias Babba.
There was some dispute regarding the delivery of these photographs. The
complainant side wanted to have the photographs while Babba did not want to
part with those photographs. However, on 16.6.1995, around 9/8.OO P.M. the
accused persons, namely, Sanjiv Kumar alias Sanju, Satnam Singh alias Satta,
Parminder Singh alias Khalsa, Ganga Dhar, Vishal Sharma, Gurpreet Singh Bedi,
Sanjiv Kumar and Anil Kumar alias Babba and Amit Kumar assembled near the
S.T.D. booth of Satnam Singh alias Satta in the area of Krishna Nagar,
Hoshiarpur, Harbans Lal questioned as to what was the problem in returning the
photographs. Due to that an altercation took place in Gali No. 14, Kamlapur and
as a result of that Sanjiv Kumar alias Sanju and Satnam Singh alias Satta
raised a lalkara that Harbans Lal and his companions should be caught hold of
and the matter should be finished once for all. Anil Kumar alias Babba gave a
Kirpan blow on the flank of Harbans Lal and Vishal Sharma gave a Kirpan blow on
the chest of Rakesh Kumar alias Gori. Both of them fell down on the ground.
Rajinder Kumar PW.5 and Raj Kumar alias Raju PW.6 raised an alarm. Still Ganga
Dhar gave two Kirpan blows on the left side of the forehead and right thigh of
Rajinder Kumar; Gurpreet Singh Bedi gave a hockey blow on the left side of the
ear of Rajinder Kumar. Parminder Singh alias Khalsa and the owner of Judge
S.T.D. and others boys surrounded them and then Raju and Rajinder Kumar raised
alarm again. Upon this Anil Kumar alias Babba and his companions ran away from
the scene of occurrence. Injured Harbans Lal succumbed to the injuries at the
spot and Rakesh Kumar in the hospital, the same day. On the basis of
information lodged, investigation was undertaken and on completion thereof
charge-sheet was filed. The trial Court found the accused persons guilty,
convicted and sentenced them as aforesaid.
4. The High Court found that no definite role was ascribed to the
respondents, and there was no evidence on record with regard to the sharing of
common object by the respondents.
5. Learned counsel for the appellant-State submitted that presence of
acquitted respondents has been accepted both by the Trial Court and the High
Court. That being so, their conviction under Section 149 was clearly in order
and the High Court should not have interfered with the same.
6. There is no appearance on behalf of the respondents in spite of service
of notice.
7. As noted above, the High Court noted that the prosecution has not even
remotely established applicability of Section 149 IPC.
8. The pivotal question is applicability of Section 149 IPC.
Said provision has its foundation on 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 set out in Section 141. Where common
object of an unlawful assembly is not proved, the accused persons cannot be
convicted with the help of Section 149. The crucial question to determine is
whether the assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects, as specified in Section
141. It cannot be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a member of 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 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, that 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 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. 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, 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.
9. 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
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 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 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 intent is not material. An assembly which, at its
commencement 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 eo instante.
10. 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 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 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 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 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 culled out, it may
reasonably be collected as noted above from the nature of the assembly, arms
carried and behaviour at or before or after the scene of occurrence. The word
knew used in the second limb 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 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, 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 falls within the second part. However, there may be cases
which would be within first part of the offences committed in prosecution of
the common object would also be generally, if not always, within the second
part, namely, offences which the parties knew to be likely committed in the
prosecution of the common object. (See Chikkarange Gowda and others v. State of
Mysore AIR 1956 SC 731).
11. A 4-Judges 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 is assigned to all the
assailants, that evidence should not have been accepted. 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 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 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 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 not. 12. To similar effect is the observation in Lalji
v. State of U.P.
(1989 (1) SCC 437). It 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 of each case.
13. Above being the position in law on the background facts, the High
Courts judgment directing acquittal of the respondent does not suffer from
infirmity.
14. The appeals are dismissed.
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