Some landmark judgements on Section 141 ( i.e., unlawful assembly) and Section 149 ( i.e., Every member of Unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code, 1860 are the following -
In Kartar Singh Vs State of Punjab (1962) 2 S.C.R. 395. the Supreme Court observed that, when the number of assailants is definite and all of them are named and the number of persons found to proved to have taken part in the incident is less than five, then it cannot be held that the assailants party, must have consisted of five or more persons.
The fact that certain persons are named in the charge as composing of an unlawful assembly, excludes the possibility of other persons are to be in the said assembly especially when there is no occasion to think that the witness who named all the accused could have committed mistake in recognizing the assailants. But this does not mean that whenever persons named in the charge are alleged to constitute an unlawful assembly it is legally not permissible to the prosecution to prove during the trial that persons in addition to those named in the charge were also member of the said assembly.
In other words, where persons named in the charge are alleged to constitute an unlawful assembly, the court on facts would be slow to come to the conclusion that persons other than those named in the charge were members of the said assembly. If, however it appears on evidence that persons not so named in the charge were members of unlawful assembly, there is no legal bar which prevents the courts from reaching that conclusion.
In Dharampal Vs State of U.P. AIR 1975 S.C. 1917, the Supreme Court held that if the Court holds that the assailants were actually five in number but there could be doubt as to the identity of two of the alleged assailants and therefore acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there a firm finding based on good evidence and sound reasoning that the participants were five or more in number.
In Bhimrao Vs State of Maharashtra, 2003 Cri.L.J. 1204 (S.C.) the appeallant/accused along with some others formed an unlawful assembly with a common object of committing the murder of Prabhakar Gawande. With that object they went to his house. Some of the members of the unlawful assembly entered the house of Prabhakar and assaulted him causing grievous injuries, consequent to which he died about six days later.
Original common object of the accused persons was only to assault Prabhakar but some of them after entering into his house developed different common object to cause grievous injuries. Accused and some otjoth were only standing outside the house and could not know what transpired inside the house. It was held that the act of those members of original unlawful assembly who entered the house cannot be attributed to the members who stood outside.
Therefore, the appeallants will be liable to be punished for sharing the original common object which was only to assault the deceased. They will be liable to be convicted under section 352 read with section 149 and not under section 326 read with section 149.
In Amerika Rai & Ors. v. State of Bihar (2011) 4 SCC 677, this Court opined that for a member of unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P (2004) 4 SCC 205, are very relevant:
"13. ... 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. ... 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 has 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...."
In Bhanwar Singh v. State of Madhya Pradesh (2008) 16 SCC 657, this Court held:
"Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment. Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. ".
Also read - 9 Major Differences Between Common Intention And Common Object.
Ingredients of Section 149 of the Indian Penal Code.
References -
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th Edition
Like this post? Want more posts like this? Suggest our next post via comments below…
