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TMI Blog2007 (6) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents. In case of co-accused Gangadhar, conviction was altered to Section 324 of the Indian Penal Code, 1860 (in short the IPC ). In all, 9 persons faced trial and the Trial Court had found each to be guilty of offences punishable under Sections 302, 323 read with Section 149 IPC. 2. Seven appeals were filed by eight of accused persons. As noted above, the High Court directed acquittal of the respondents while disposing of the appeal of Vishal and Anil and altered the conviction of Gangadhar. 3. The background facts in a nutshell are as follows: The accused persons had gone for a pleasure trip to Manali in the year 1994. They had some joint photographs. These photographs were in possession of accused Anil Kumar alias Babba. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his companions ran away from the scene of occurrence. Injured Harbans Lal succumbed to the injuries at the spot and Rakesh Kumar in the hospital, the same day. On the basis of information lodged, investigation was undertaken and on completion thereof charge-sheet was filed. The trial Court found the accused persons guilty, convicted and sentenced them as aforesaid. 4. The High Court found that no definite role was ascribed to the respondents, and there was no evidence on record with regard to the sharing of common object by the respondents. 5. Learned counsel for the appellant-State submitted that presence of acquitted respondents has been accepted both by the Trial Court and the High Court. That being so, their conviction under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eo instante. 10. Section 149, IPC consists of two parts. The first part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew used in the second limb 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. 12. To similar effect is the observation in Lalji v. State of U.P. (1989 (1) SCC 437). It was observed that: Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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