Shivjee Singh & Ors vs State Of Bihar

1 the Criminal Appeal no.494/2004, and there are two

appellants in Criminal Appeal no.484/2006. All the five

appellants in Criminal Appeal No.1494 of 2004 were found

guilty of offence punishable under Section 302 read with

Section 149 of the Indian Penal Code, 1860 (in short `IPC') and

Section 147. Similar was the conviction recorded in case of

Satya Narain Singh, one of the appellants in Criminal Appeal

no.484 of 2006. Ambika Singh the other appellant in Criminal

Appeal no.484 of 2006 was convicted for offence punishable

under Sections 302 and 148 IPC and Section 27 of the Arms

Act, 1959 (in short `Arms Act'). Appellants in Criminal Appeal

no.1494 of 2004 were sentenced to life imprisonment and two

years respectively. Similar was the case of Satya Narain Singh-

appellant in Criminal Appeal no.484 of 2006. Ambika Singh-

appellant in criminal appeal no.484 of 2006 was sentenced to

undergo life imprisonment, three years, and five years for the

three offences noted above.

2. Background facts giving rise to the trial are as follows:

2

At sunset time on the day of Holi (the date being

9.3.1993) Bhagwan Singh (P.W.1) was sitting at his Dalan.

Satya Narain Singh came there in an inebriated state and

started quarreling with him and abusing him. Bhagwan Singh

asked him to stop the abuses and to go away. On this Satya

Narain Singh called his family members. Ambika Singh, one of

his three sons came armed with his gun; others carried sticks,

stones and brick pieces in their hands. On hearing the

exchange of hot words a number of villagers came there.

Some of them were singing Holi songs at the nearby Devi

Asthan and on hearing the noise they came to the Dalan of

Bhagwan Singh. Others who were neighbours also came. The

villagers coming there asked Satya Narain Singh to stop the

quarrel and scolded him. Satya Narain Singh then took his

relatives to his roof-top and from there they started throwing

stones and pieces of bricks at the tiled roof of the house of

Bhagwan Singh. Satya Narain Singh urged his son Ambika

Singh to open fire from his gun. So, ordered by his father,

Ambika Singh fired a shot that hit Meghnath Singh

(hereinafter referred to as the `deceased') on his back and as a

3 result he fell down and died. Ambika Singh fired seven to eight

shots that caused injuries to Ram Pran Singh (PW 3), Sri Ram

Singh (PW 10) and Umesh Singh (PW 6). One of the stones

thrown by Satya Narain Singh hit Suraj Singh (PW 5) and

caused injury to him. After the occurrence the injured were

carried on a tractor to Ara town where they were admitted to

the Sadar Hospital and were treated there for about a week.

Sitaram Singh (PW 15) who at that time was the officer

Incharge of Ayar P.S. was going round the villages under his

P.S. for maintaining peace and order on the day of Holi. At

village Bargaon he came to learn that gun shots were fired at

Medhapur village. From there he proceeded to Medhapur

along with an armed police party and reached there at about

10.30 in the night. There he recorded the statement of

Babulal Singh (PW 12), the brother of the deceased in

presence of a witness Baleshwar Singh (PW 2). The statement

was recorded as fard-e-bayan (Ext.1) on the basis of which a

formal F.I.R. (Ext. 7) was later drawn up on 10.3.1993 at

00.30 hrs. giving rise to Jagdishpur (Ayar) PS Case No.27 of

4 1993. After recording the fard-d-bayan he took up

investigation of the case, recorded the statements of other

witnesses who were available there, examined the place of

occurrence and prepared the inquest report (Ext. 2) of the

deceased Meghnath Singh.

On completion of investigation he submitted charge sheet

against the appellants. They were put up on trial and at the

end were convicted and sentenced as indicated above.

It may be mentioned here that in regard to the same

occurrence a case was instituted from the side of the

appellants as well. That was registered as Jagdishpur (Ayar)

PS Case No.28 of 1993 under Sections 147, 148, 149, 323,

447, 337 and 325 of the Indian Penal Code and Sections 27 of

the Arms Act. In that case some of the witnesses examined by

the prosecution in the present case, along with some others

were named as accused. That case is said to be pending trial

before a Magistrate.

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3. 17 witnesses were examined by the prosecution to

establish the prosecution version. PWs 1 to 6 and 9 to 12

were stated to be eye witnesses. PWs 3, 5, 6 and 10 were

injured witnesses. The trial Court placed reliance on their

evidence and found accused appellants guilty as noted above.

4. In appeal, the High Court rejected the plea of the

appellant that the evidence of witnesses should not have been

relied upon as there was sudden pre-fight and, therefore,

Section 149 has no application. The High Court, as noted

above, dismissed the appeal.

5. In support of the appeal learned counsel for the

appellant submitted that so far as applicability of Section 149

IPC is concerned, there was no discussion either by the Trial

Court or the High Court. The appellant in Criminal Appeal

no.1494 of 2004 is stated to have pelted stones on the house

of the deceased. That is not sufficient to attract Section

302/149 IPC. According to the prosecution version accused-

6 Ambika Singh fired the shots after the pelting of the stones

has stopped. The role ascribed to Satya Narain Singh was

that he was exhorting Ambika Singh to fire.

6. Leaned counsel for the respondent-State on the other

hand supported the judgments of the Trial Court and the High

Court.

7. We shall first deal with the applicability of Section149

IPC. So far appellants in Criminal Appeal no.1494 of 2004 are

concerned, it is pointed out by the prosecution that the stones

were pelted by the accused persons with a view to damage the

roof and did last only for two to three minutes. It is also stated

by the witnesses that only after the stopping of the pelting of

stones, firing was done. It is, therefore, stated by leaned

counsel for the appellant in Criminal Appeal no.1494 of 2004

that neither the Trial Court nor the High Court has analysed

the aspect relating to applicability of Section 149 IPC. Abrupt

7 conclusions have been arrived at about the applicability of the

provisions.

8. A plea which was emphasized by the appellants relates

to the question whether Section 149, IPC has any application

for fastening the 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

8 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

9 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. For determination of the common object of

the unlawful assembly, the conduct of each of the members of

10 the unlawful assembly, before and at the time of attack and

thereafter, the motive for the crime, are some of the relevant

considerations. 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 co

instanti.

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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

12 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 called out, it may reasonably be

collected from the nature of the assembly, arms it carries and

behaviour at or before or after the scene of incident. The word

`knew' used in the second branch 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

13 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, but offences committed in

prosecution of the common object would be generally, if not

always, be 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. In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC

747) it was observed that it is not necessary for the

prosecution to prove which of the members of the unlawful

assembly did which or what act. Reference was made to Lalji

v. State of U.P. (1989 (1) SCC 437) where it was observed that:

"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".

14 12. This position has been elaborately stated by this Court in

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC

381).

13. When the factual scenario is considered in the

background of the above principles set out above, the

inevitable conclusion is that the appeal filed by the appellants

in Criminal Appeal no.1494 of 2004 deserves to be allowed.

Their conviction is set aside so far their conviction under

Section 302 read with Section 149 IPC is concerned. But the

sentence imposed for the offence punishable under Section

147 is maintained. The sentence shall be three months for

the offence punishable. So far the other appeal is concerned,

the evidence brought on record clearly establish the

accusations. Therefore, while Criminal Appeal no.1494 of

2004 is partly allowed, Criminal Appeal no.484 of 2006 is

dismissed.

.....................................

....J. (Dr. ARIJIT PASAYAT)

15 ..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 30, 2008

16