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TMI Blog2004 (3) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... sons preferred appeal before the High Court. The High Court found that one accused named Shyamu was a juvenile and with reference to Section 2(4) of the U.P. Children Act, 1951 his conviction was maintained, but he was extended the benefit of the said Act. Though one Ram Pal was named in the first information report, no charge sheet was submitted so far as he is concerned. One Narena died during the pendency of the appeal before the High Court and the appeal abated so far as he is concerned. Dealing with the case of other 22 accused persons, the High Court found that the appellants 10 to 23 were stated to be armed with lathies only. There was no sufficient material to bring home the accusations so far as they are concerned. Though one Raj Pal was also similarly placed, the High Court made a distinction holding that he being the son of Harkesh, the prime mover of the entire episode, it can be presumed that he may have had a motive to join the unlawful assembly with his father, brother and others. Though one Mahesh Chand was also stated to be holding a spear, he was also found to be not. guilty on the logic of the other accused persons who were holding lathies. He was also given the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is that the persons from the prosecution side had resorted to brickbatting in self defence as per the version of PW-2 Tejveer Singh-Pradhan. After investigation, charge sheet was laid and trial was held which resulted in the impugned judgment. At the trial persecution examined 13 witnesses out of whom Jai Prakash (PW-1), Tejveer (PW-2) and Satya Prakash (PW-5) were stated to be eye-witnesses. PW-2 and PW-5 were injured also. The rest were doctors, investigating officer and other formal witnesses, Mention should be made with regard to Dr. S.K. Agrawal (PW-9) in whose presence dying declaration of Smt. Shanti Devi (D-3) was recorded. Shashi Shekhar Singh (PW-11) was the Executive Magistrate who recorded her dying declaration. The defence was of denial. The accused Harish Chandra in his statement under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') stated that Harkesh was constructing passage by the side of his wall and Satya Prakash (PW-5) never resisted him from doing so. He also raised the plea of alibi. According to accused Har Prasad he along with Pappoo, Hazari and Kunwar Pal was sitting in the Nohra of Harkesh. Suddenly, 14-15 person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, there is no distinctive feature vis-a-vis acquitted accused persons who were similarly placed. On mere surmise that he may have the motive he has. been roped in. Per contra, learned counsel for the respondent-State supported the judgment of the courts below. We shall first deal with the accused-appellant Raj Pal. As noted by the High Court he stands on the same footing as that of the acquitted accused persons. The Trial Court and the High Court, however, distinguished his case by observing that being the son of accused Harkesh who was prime mover of the crime, he may have a motive. In the absence of any positive material in that regard, there is no scope for distinguishing his case from the other accused persons who have been acquitted. Therefore, his conviction cannot be maintained. Coming to the others who were armed with double barrel guns and country made pistols, the question is regarding applicability of Section 149, IPC. Section 149, IPC has its foundation on 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 liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 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 existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC 731. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti's case (supra) observed as follows: Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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