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Report No. 35

107. Section 149, Indian Penal Code.-

Section 149 of the Indian Penal Code is the second specific case1 which deserves some detailed discussion. The section2 runs as follows:-

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly known to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.".

The main ingredients of the section are, first, the existence of an unlawful assembly; secondly, the formation of a common object; thirdly, the commission of an offence by one of its members; and fourthly, the requirement that the offence must be committed in prosecution of that common object or must be such as the members of that assembly knew to be likely to be committed in prosecution of that object. It is only when these ingredients are satisfied that the constructive liability under the section arises, namely, that every other member of the assembly is guilty of that offence. Before the section can be called in aid, the court must find with certainty that there were at least five persons sharing the common object3.

1. As to the first case, see para. 91, supra.

2. Section 149, Indian Penal Code.

3. Dalip Singh v. State of Punjab, AIR 1953 SC 364 (366).

108. The central fact on which the liability of the person other than the actual doer of the act depends is the "common object", coupled with the requirement expressed by the expression "knew to be likely to be committed". This expression imports, at least, an expectation founded upon facts, known to the members of the assembly, that an offence of the particular kind committed, would be committed. Courts have not overlooked this requirement. The leading case on the subject is that of Sabid Ali1.

In that case, there was a dispute about land between S and F, which ended in a riot, in the course of which T fired a gun and killed X. T was a member of an unlawful assembly, of which the appellants were also members, and it was found that S had directly invoked the aid of the assembly, among whom was this T armed with a gun. S and other appellants were held guilty of murder under section 302 read with section 149, and sentenced to transportation for life. It was held, that it was not satisfactorily made out by the evidence that the taking of life was immediately connected with the common object of the assembly, or that the prisoners knew that this offence was likely to be committed in prosecution of the common object.

It was pointed out, that the common object was to drive F off the land and to prevent him from cultivating it. But it was not proved that the members of the assembly were prepared and intended to accomplish that object at all hazards of life. They did not think that the gun would be used in the particular manner in which it was used by T.

1. Queen v. Sabid Ali, (1873), 11 Beng LR 347: 20 WR Cr 5 (FB).

109. The provision in section 149, Indian Penal Code1 is not peculiar to India. Even in England, the rule at common law is, that where several persons are engaged in the pursuit of a common unlawful object, and one of them does an act which, the others ought to have known, was not improbable to happen in the course of pursuing such common unlawful object, all are guilty2. The test of common purpose is applied in England also3.

It is important to bear in mind, that members of an assembly may have a community of an object only up to a 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 the common object will vary not only according to the information at his command, but also according to the extent to which he shares the community of objects. If knowledge of the likelihood of the particular offence cannot be reasonably attributed to the other members, then their liability does not arise.

1. Para. 107, supra.

2. Cf. Russell on Crime, (1964), Vol. I, p. 144.

3. See discussion in Glanville Williams Criminal Law, (1961), Vol. I, pp. 396 to 397, para. 133 and foot-note 3.

110. The impact of section 149, Indian Penal Code1, lies in this; that the person whose case falls within the terms of the section cannot put forward the defence that he did not commit the offence with his own hands2-3.

Section 149, "so to speak, takes him out of the region of abetment, and makes him responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly4.".

1. Para. 107, supra.

2. T. Gounder, (in re:), 1924 ILR 47 Mad 746: AIR 1925 Mad 1(6) (FB).

3. Q.E. v. Bisheshar, 1887 ILR 9 All 645 (650, 653) (section 396 also discussed.

4. Emp. v. Ram Pratab, 1883 ILR 6 All 121 (123) (Straight J.).

111. For the present purpose, it is not necessary to discuss in detail the various ingredients of the section, which has received interpretation at the hands of the Supreme Court more than once1-4.

1. Ram Bilas v. State of Bihar, (1964) 1 Cr LJ 573 (SC).

2. Mizaji v. State of Uttar Pradesh, AIR 1959 SC 572.

3. W. Slaney v. State of Madhya Pradesh, AIR 1956 SC 116.

4. Lakhan Mahto v. State of Bihar, (1966) 8 SCN item 139.

112. Next comes the question of sentence, in cases to which section 149 applies. This is a matter of discretion. Here again, no hard and fast rule can be laid down. It may be that on the particular facts of the case, the person constructively liable under section 149 deserves a lesser sentence1. But the facts may be such that all deserve the highest penalty.

As has been observed2, it would not be correct to lay down a broad proposition that in no case can the highest penalty be given because the person who inflicted the actual blow cannot be ascertained.

1. Cf. Emp. v. Ramli Lal, AIR 1941 Lah 117 (120) (Young C.J. and Sale J.).

2. Cf. Parshadi v. Emp., AIR 1929 All 160 (161) (Boys and Banerjee JJ.).

113. That the matter is one of discretion, has been stressed by the Federal Court also1. In a proper case2, the lesser sentence may be imposed on the person vicariously liable.

1. Rajagopalan v. Emperor, 1944 FCR 169: AIR 1944 FC 35.

2. See Masalti v. State of Uttar Pradesh, (June 1964) 1 SCJ Notes of Recent Cases, p. 75 (SC).

114. The following observations made in a recent decision of the Supreme Court may be quoted1.

1. Masalti v. State of Uttar Pradesh, (1965) 1 SCJ 605 (613).

"That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons. Mr. Sawhney argues that in confirming the sentence of death imposed by the trial Court on 10 accused persons in this case, the High Court has adopted a mechanical rule. The High Court has held that the 10 persons who carried fire-arms should be ordered to be hanged, whereas other who have also been convicted under section 302/149, should be sentenced to imprisonment for life.

It is true that except for Laxmi Prasad, the charge under section 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawful assembly of which they were members, and the argument is that unless it is shown that a particular accused person has himself admitted the murder of one or the other of the victims, the sentence of death should not be imposed on him. In other words, the contention is that if a person is found guilty of murder under section 302/149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death.

In support of this argument, Mr. Sawhney has relied on certain observations made by Bose, J. who spoke for the Court in Dalip Singh v. State of Punjabi. 1953 SCJ 532: 1954 SCR 145.In that case, what this Court observed was that the power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons; and it was added that it is not enough for the appellate Court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate Court but the trial Judge, and the only ground on which the appellate Court can interfere is that the discretion has been improperly exercised.

These observations have no relevance in the present case, because we are not dealing with a case where the High Court has enhanced the sentence imposed by the trial Judge at all. In fact, both the trial Court and the High Court are agreed that the sentence of death imposed on 10 persons are justified by the circumstances of the case and by the requirements of justice. As a mere proposition of law, it would be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person, is found to have committed the murder himself.

Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which has to be decided on the facts and circumstances of each case. In the present case, it is clear that whole group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male member in the family of Gayadin.

Ten of these persons were armed with firearms and others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the Courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with fire-arms.

It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court. Therefore, we see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.

"There are, however, three cases in which we think we ought to interfere. These are the case of accused No. 9 Ram Saran who is aged 18, accused No. 11 Asha Ram who is aged 23, and accused No. 10 Deo Prasad who is aged 24. Ram Saran and Asha Ram are the sons of Bhagwati who is accused No. 2. Both of them have been sentenced to death. Similarly, Deo Prasad has also been sentenced to death. Having regard to the circumstances under which the unlawful assembly came to be formed we are satisfied that these young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families.

The list of accused persons shows that the unlawful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages, it would not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders, and so, we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment. Accordingly, we confirm the orders of conviction and sentence passed against all the appellants, except accused Nos. 9, 11 and 16 in whose cases the sentences are altered to these of imprisonment for life. In the result, appeals are dismissed subject to the said modification.".

115. Section 396-"in the commission".-

Section 396 may be briefly dealt with. Section 396, of course, does not require that the murder should be committed with the consent or acquiescence of the other dacoits; the section would be almost superfluous if that were the correct interpretation. It does not also require that murder must have been within the contemplation of all or some of them1-2. But it does require, that there be some connection between the dacoity and the murder. If the transaction of the dacoity has ended before the transaction of murder has commenced, the section would not apply3.

1. Punjab Singh v. Emperor, ILR 15 Lah 84: AIR 1933 Lah 977 to 985 (Tek Chand and Monroe JJ.).

2. Samundar Singh v. State, AIR 1965 Cal 598, paras. 58 and 74.

3. Cf discussion in Shyam Behari v. State of Uttar Pradesh, AIR 1957 SC 320 (322, 323), paras. 8 to 14. (The point was not decided in that case).

116. It is true, that under section 396 questions may arise as to whether the murder was committed "in so committing dacoity". Thus, when the murder is committed but the dacoity is not successfully accomplished1, the question may arise whether the case falls under this section; the question cannot be answered without a study of the facts of the case. The under-mentioned decisions may be seen on this point2-4.

1. See section 391, which mentions "attempt to commit robbery" also.

2. Sirajuddin v. State, AIR 1951 All 834 ( 835), para. 8.

3. Queen Empress v. Sakharam, (1900) 2 Bom LR 325 (Jenkins C.J.). (Retreat not separated by time or space from the offence which formed the common object of the assembly).

4. Manoranjan Bhattacharya v. Emperor, AIR 1932 Cal 818 (820): 33 Cr LJ 722 (FB).

117. Again, when one dacoit, while making good his escape with the booty obtained in the dacoity, commits murder, the liability of the others will depend on the facts. The under-mentioned1-4 decisions may be seen on this point.

1. Karim Baksh v. Crown, AIR 1923 Lah 329(1).

2. Lashksr v. Crown, ILR 2 Lah 275: AIR 1921 Lah 115 (Shadi Lal C.J. and Harrison J.).

3. Sunder v. K. Emp., AIR 1925 Lah 142 (Shadi Lal C.J. and Fstetorde J.)

4. Emperor v. Chandar, (1906) AWN 47: 3 Cr L.J 294 discussed in Sirajuddin v. State, AIR 1951 All 834 (835), para. 5.

118. Similarly, it is a question depending on the facts of each case whether the murder can be regarded as committed "in the commission of a dacoity", when the person sought to be made liable is absent. As was observed 1 "it matters not, when in the commission of a dacoity a murder is committed, whether the particular dacoit charged under section 396 was inside the house or outside the house, or whether the murder was committed inside or outside the house, so long only as the murder was committed in the commission of that act.".

It may be, that on the facts of a particular case, persons who were absent from the scene, may be regarded as falling outside the section2.

The matter has been dealt with also in a recent Calcutta case3.

1. Q.E. v. Teja, 1895 ILR 17 All 86 (87) (Sir John Edge and P.C. Banerji JJ.).

2. The decision in Q.E. v. Umrao Singh, 1894 ILR 16 All 437 can be explained on this ground.

3. Samunder Singh v. State, AIR 1965 Cal 598, paras. 5 and 74.

119. Where the murder is committed before the dacoity actually takes place, the answer to the question whether it was still committed "in the commission of the dacoity", depends on the facts of each case1-2.

1. Mathura Thakur, 6 CWN 72 (Assault resulting in death as committed by one person; case held to be outside the section, because the assault not only preceded the theft, but was not committed for the purpose of robbery).

2. Sita Ram v. Emperor, AIR 1925 Oudh 723 (Shot fired to keep off the rescue party and, thus, to allow the theft to be committed, held to be act committed in course of dacoity).

120. All these1 are questions of application of the section, and do not detract from the soundness of the principle on which it is based. Moreover, it is not a general rule that the sentence of death must necessarily follow on a conviction under section 396. The facts of the case may justify the highest sentence2-3-4, or the lesser one5.

1. Paras. 116 to 119, supra.

2. Emperor v. Nga Tha Hmwe, AIR 1935 Rang 504 (Murder committed wantonly to intimidate villagers during dacoity; knowledge that murder was likely to be committed).

3. Punjab Singh v. Emp., ILR 15 Lah 84: AIR 1933 Lah 977 (985) (Tek Chand and Monroe JJ.).

4. Emperor v. Sheo Shankar, ILR 32 Pat 243: AIR 1954 Pat 109 (Imam and Narayan JJ.).

5. Akeila Sheikh v. State, AIR 1953 Assam 45 (46), para. 8.

121. If the section is applied with discrimination,-and we believe that it has been so applied in the past,-we do not think that the provision can be regarded as too harsh. The question whether the murder was committed in the commission of dacoity must always be a question of fact and of degree, on which the Legislature cannot lay down a general rule1. Factors of time and place, of objects and intention, of preparation and participation, may or may not be relevant in a particular case. But the crucial test, indicated by the words "in so committing dacoity" appears to be basically sound, so far as a justification for the highest penalty is to be sought for.

1. See Q.E. v. Sakharam, (1900) 2 Bom LR 325 (Jenkins C.J.)

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