Criminal Appeal No 227 of 1983
From the Judgment and Order dated 1981982 of the Allahabad High Court in Crl
Appeal No 680 of 1976
RL Kohli and Shakil Ahmed Syed for the Appellants
Prithvi Raj and Dalveer Bhandari for the Respondent
The Judgment of the Court was delivered by KN 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 302149 and also the conviction of Milkhi with sentence of two years RI under section 148 IPC and of the other three appellants under Section 147 IPC with sentence of one year RI 133 The facts are simple
On 2461975 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 FIR exhibit Ka 19
It has admittedly resulted in acquittal
The present case was registered under FIR exhibit Ka l upon the information lodged by Babu Ram son of Siddhu at PS 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 RL 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 302149 IPC 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 IPC 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 IPC 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 IPC 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 IPC 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 IPC 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 IPC 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 IPC 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 FIR exhibit Ka l
PW 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
PW 3 Smt
Ram Devi clearly corroborated Milkhi s participation
PW 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
DW 2 Lalji stated that at the time of the occurrence Puran Bhagwati Kripal etc had also come
In the FIR exhibit Ka 19CI 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
TNA Appeal dismissed


Summary:
Clause 1 of the agreement arrived at between the con sumerrespondents and the appellant Electricity Board pro vided for constant supply of electrical energy to the con sumers
Clause 4 provided that even if the consumer does not consume electricity above the minimum guarantee then it will be incumbent upon the consumer to pay annual minimum charges
Clause 13 provided for the contingency that if the consumer is prevented from receiving or using the electrical energy due to strikes riots fire floods explosions act of God or any other case reasonably beyond the control of the Board or if the Board is prevented from supplying such electrical energy owing to any of the causes mentioned then the consumer was entitled to a proportionate reduction of the annual minimum guarantee bill as determined by the Chief Engineer
The respondents were served with the hills for annual minimum guarantee for the years 1973 74 to 1982 83 by the Electricity Supply Division
The respondents filed their claims under clause 13 with the Chief Engineer denying their liability to pay any such charges because the Board did not supply constant supply as provided in clause 1
It was alleged that during the period in question due to trip pings load sheding and power cut the respondents suffered a great loss
The Chief Engineer negatived the claims of the respondents
A batch of writ petitions was filed in the High Court challenging the order of the Chief Engineer
Although in these petitions relief sought was proportionate reduction of the annual minimum guarantee 169 bills but in view of the interpretation of clauses 1 4 and 13 the High Court quashed the demand made by the Electricity Board by holding that under clause 1 it was incumbent for the Electricity Board to supply constant electricity supply and that the consumers will be liable to pay annual minimum guarantee charges only if the Board supplies the power as provided in the agreement but the consumer does not utilise the power
In these appeals by Special Leave it was contended on behalf of the appellants that the constant supply  men tioned in clause I cannot mean continuous supply 
The respondent consumers could not deny the liability to pay annual minimum guarantee bills if the Electricity Board could not supply power for all the 24 hours due to circum stances beyond the control of the Electricity Board
In case of shortage of supply due to circumstances beyond the con trol of the Board the consumers were entitled to a propor tionate reduction under clause 13 of the agreement
Allowing the appeals the Court HELD 1
The High Court was not right in coming to the conclusion that the respondents were not liable at all to pay the annual minimum guarantee charges
175C 11
The High Court in its judgment clearly stated the hours every year in dispute when the power was not supplied and on this basis the respondentconsumers will only be entitled to proportionate reduction as ordinarily the con sumers are expected to have continuous power supply
Clause 13 clearly provides for the proportionate reduction of the annual minimum guarantee bills
175D 2
Clause 1 talks of constant supply of electrical energy providing for voltage cycles phases and wires
It does not talk of either of continuous or non continuons or intermittent supply
173E 3
The Respondent consumers are entitled to a propor tionate reduction of the minimum guarantee bill
The inabil ity of the Electricity Board to supply electrical energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consum ing electricity as per the contract and to the extent it wanted to consume
173G 170 Northern India Iron  Steel Co etc
vs State of Haryana 4
The Chief Engineer of the Electricity Board shall accordingly assess the proportionate reduction of the annual minimum guarantee bills in respect of disputed years on the basis of non supply as indicated in the High Court Judgment
175D E 41
Pending assessment the power supply of the consum ers will not be disconnected on the ground of failure to pay the annual minimum guarantee bills
175E 42
The Electricity Board will be entitled to take recourse to the normal procedure if the consumers fail to pay after the proportionate reduction is made and fresh demand is made
175E F Amalgamated Electricity Co Ltd vs Jalagaon Borough Municipality   Ms Man Industrial Corpo ration vs Rajasthan State Electricity Board and others AIR and Mukand Iron and Steel Works Ltd vs Maharashtra State Electricity Board and another AIR 1982 Bombay 580 referred to