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. (exhibit Ka 19).
It has admittedly resulted in acquittal.
The present case was registered under F.I.R. (exhibit 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. (exhibit 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. (exhibit 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.

Summary:
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]