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Sunday, November 2, 2014

Unlawful Assembly Sec.149 - Once unlawful assembly was proved with a common object - absence of overt act against the other accused does not vitiate the prosecution story entitling for acquittal - Apex court held that In view of the settled principles of law, once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted under Section 149, IPC. We, therefore, find no error in the order of conviction and sentence passed by the Trial Court and affirmed by the High Court calling our interference under Article 136 of the Constitution. The appeals fail and are hereby dismissed.= CRIMINAL APPEAL NO. 775 of 2007 ANUP LAL YADAV & ANR. … APPELLANTS VERSUS STATE OF BIHAR …. RESPONDENT = 2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41969

Unlawful Assembly Sec.149 - Once unlawful assembly was proved with a common object - absence of overt act against the other accused does not vitiate the prosecution story entitling for acquittal - Apex court held that In view of the settled principles of law,  once  it is established that the unlawful assembly had a common  object,  it  is  not necessary that all persons forming the unlawful assembly must  be  shown  to have committed some overt act, rather they can be  convicted  under  Section 149, IPC. We, therefore, find no  error  in  the  order  of  conviction  and
sentence passed by the Trial Court and affirmed by the  High  Court  calling our interference under Article 136 of the Constitution. The appeals fail and are hereby dismissed.=

 Further, in State of Rajasthan Vs Shiv Charan, (2013)  12  SCC  76  it
was opined by this Court:
      “The pivotal question of applicability of  Section  149  IPC  has  its
      foundation on constructive liability which is the sine qua non for its
      application. It contains essentially only two ingredients, namely, (I)
      offence committed by any member of any  unlawful  assembly  consisting
      five or more members and; (II)  such  offence  must  be  committed  in
      prosecution of the common object (Section 141 IPC) of the assembly  or
      members of that  assembly  knew  to  be  likely  to  be  committed  in
      prosecution of the common object. It is not necessary that for  common
      object there should be a prior concert as the  common  object  may  be
      formed on the spur of the moment. Common object would mean the purpose
      or design shared by all members of such assembly and it may be  formed
      at any  stage.  Even  if  the  offence  committed  is  not  in  direct
      prosecution of the common object of the unlawful assembly, it may  yet
      fall under the second part of Section 149 IPC  if  it  is  established
      that the offence was such, as the  members  knew,  was  likely  to  be
      committed”.


20.   Thus, by appreciating the entire evidence on record, we are unable  to
accept  the  contention  advanced  by  learned  senior   counsel   for   the
accused/appellants that  the  accused  were  merely  passive  onlookers  who
joined the mob out of curiosity and they had no  common  intention  and  did
not share the common object of  the  unlawful  assembly.  In  the  light  of
aforementioned decisions of this Court, we are also not able  to  appreciate
the contention of the appellants that no overt act has  been  attributed  to
each of the accused hence application of Section 149, IPC is not  justified.
We have no hesitation to come to a conclusion that the appellants were  part
of the unlawful assembly sharing the common object of killing,  rioting  and
looting the villagers.   Each one of the accused played an  active  role  in
furtherance of the common object of the assembly and the Courts  below  were
perfectly right in convicting  the  accused/appellants  under  Section  149,
IPC.
21.   Hence, in our considered opinion, the prosecution has proved its  case
beyond reasonable doubt. In view of the settled principles of law,  once  it
is established that the unlawful assembly had a common  object,  it  is  not
necessary that all persons forming the unlawful assembly must  be  shown  to
have committed some overt act, rather they can be  convicted  under  Section
149, IPC. We, therefore, find no  error  in  the  order  of  conviction  and
sentence passed by the Trial Court and affirmed by the  High  Court  calling
our interference under Article 136 of the Constitution.
22.   The appeals fail and are hereby dismissed.

2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41969
                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 775 of 2007


ANUP LAL YADAV & ANR.                   …  APPELLANTS

VERSUS

STATE OF BIHAR                          …. RESPONDENT

                                    WITH

                      CRIMINAL APPEAL NO. 1163 of 2007


SURANG LAL YADAV                             …  APPELLANT

VERSUS

STATE OF BIHAR                          …. RESPONDENT


                                  JUDGMENT

N.V. RAMANA, J.

      These appeals are preferred by the appellants/accused aggrieved by the
judgment and order passed by  the  Division  Bench  of  the  High  Court  of
Judicature at Patna in Criminal Appeal No. 566  of  1993  whereby  the  High
Court affirmed the conviction and sentence  passed  by  the  8th  Additional
Sessions Judge, Purnia, Bihar  in  Sessions  Trial  No.  28  of  1978  under
Sections 302/149, 436/149, 380/149, 323/149,  145  and  147  of  the  Indian
Penal Code against them.
2.    The prosecution case, in short, is that in the  early  hours  of  25th
September, 1974 appellant Surang Lal Yadav (Accused  No.  5),  a  member  of
Santhala community, riding on a horse and  carrying  a  sword  in  his  hand
entered the village Singhimari leading a mob of about 300  to  400  persons,
all armed with various  kinds  of  deadly  weapons  such  as  bows,  arrows,
ballams, bhalas, kulharis, dandas and with burning flames  in  their  hands.
The mob led by accused Surang Lal Yadav attacked ruthlessly the  Badhyas,  a
Muslim minority community, most of them were migrants from Bangladesh.   The
mob went on looting movable  properties  of  the  villagers,  setting  their
houses on fire, injuring and killing innocent persons  indiscriminately.  In
the said incident, 14 persons were killed, 47  houses  were  burnt,  several
properties were looted and a number of persons were injured.  On  the  basis
of a complaint given by one Amzad Ali  (PW  2)  at  about  1  p.m.  on  25th
September, 1974 to  the  Assistant  Sub-Inspector  of  Police,  an  FIR  was
registered and investigation took place.  The  genesis  of  the  case  is  a
Government  land  which  was  in  occupation  of  the  accused  persons  but
allegedly encroached by the Badhyas.
3.    After investigation, charge sheet was filed  against  several  persons
including the appellants herein. Most of  the  other  accused  persons  were
shown as absconded. The case of 27 accused persons including the  appellants
was committed for trial. The Trial Court framed charges against  18  accused
persons including the appellants. The other accused, who were  committed  to
face trial, had jumped their bail bonds and absconded.  Finally,  statements
under Section 313,  Cr.P.C.  were  recorded  in  respect  of  seven  accused
persons only.
4.    To bring home the guilt of the accused, the prosecution  has  examined
in all 38 witnesses. The informant—Amzad Ali was examined as PW  2  who  was
the eyewitness to the incident. In his  examination,  he  had  narrated  the
whole incident and identified as many as 33 persons in the mob who  actively
participated in the arson, looting and disclosed their names.
5.    PW 1—Dr. V.N. Sinha, the Civil Assistant Surgeon  of  Sadar  Hospital,
Purnia who conducted postmortem  examination  on  the  dead  bodies  of  six
persons found sharp edged  piercing  injuries  and  cutting  wounds  on  the
bodies of the deceased and he opined that these persons died on  account  of
the ante mortem injuries sustained by them before 48 to 72  hours  of  their
death. Postmortem of other eight deceased persons  was  carried  out  by  PW
35—Dr. T.P. Chatterjee, the Deputy  Superintendent  of  Kishanganj  Hospital
who also found sharp edged piercing and  cutting  injuries  and  penetrating
wounds on the bodies of the deceased. In his opinion, their  death  occurred
within 72 hours.
6.     The  Trial  Court,  after   considering   the   conspectus   of   the
circumstances and materials on record,  came  to  the  conclusion  that  the
prosecution has successfully proved the guilt of the  accused.  Accordingly,
the Trial Court convicted and sentenced  the  accused  to  undergo  rigorous
imprisonment for life for the  offence  punishable  under  Section  302/149,
IPC. They were further convicted and sentenced  to  undergo  R.I.  for  five
years for the offence committed under Section 436/149, R.I.  for  two  years
for the offence under Section 380/149 and R.I. for one year for the  offence
under Section 323/149, IPC. Accused     No. 5—Surang Lal Yadav  was  further
sentenced to undergo R.I. for one year  for  the  offence  punishable  under
Section 145, IPC whereas the other accused were convicted and  sentenced  to
undergo R.I. for six months for committing the offence  under  Section  147,
IPC. All the sentences were however directed to run concurrently.
7.    All the seven accused assailed the judgment and order of  the  learned
Trial Judge in appeal before the High Court  of  Judicature  at  Patna.  The
High Court allowed the appeal  in  respect  of  two  accused  persons  while
maintaining conviction and sentence passed by the Trial  Court  against  the
other accused. We are now concerned with only three accused  who  challenged
the judgment of the High Court before us in these Criminal Appeals.
8.    Learned senior counsel appearing for the  accused/  appellants  mainly
contended that the identification  of  the  appellants  as  accused  by  the
prosecution witnesses is  highly  doubtful.  He  submitted  that  there  was
enmity and rivalry between the accused group and the  group  of  prosecution
witnesses. On the fateful day, an  open  fight  broke  up  between  the  two
factions, several persons died and several others were injured. The  brother
of Anup Lal Yadav (accused—Appellant No. 1) was also killed on the same  day
and the brother of Surang Lal Yadav was also murdered a day earlier  to  the
incident, in which Amzad Ali (P.W. 2) was an accused.  Moreover,  Amzad  Ali
(PW 2) once contested an election against accused Surang Lal Yadav and  lost
the election. Thus there was enmity prevailing between the two  groups.  All
the prosecution witnesses  are  interested  witnesses  and  they  wanted  to
retaliate by implicating the accused in the  present  case.  It  is  evident
from their depositions  that  they  had  made  bald  and  vague  allegations
against the accused and no specific overt act has been attributed to any  of
the accused by any of the witnesses. Therefore, implication of  accused  for
the offences charged against them is not justified by the Courts  below  and
they erred in convicting the accused on a wrong assumption of facts  without
taking  into  consideration  the  intrinsic  worth  of   the   evidence   of
prosecution witnesses.
9.    Learned counsel submitted that mere presence of  the  accused  at  the
place of incident would not amount to  their  unlawful  assembly.  From  the
depositions of prosecution witnesses, it can be discerned that there was  no
common object among the accused and they did not commit  any  overt  act  in
pursuit of common object. Mere presence of accused with arms  at  the  place
of incident would not be sufficient to establish their  involvement  in  the
crime. A majority of witnesses did not identify the accused  and  there  was
no clinching evidence to show that the appellants-accused shared the  common
object by forming unlawful assembly. The Courts below  have  totally  failed
to appreciate the fact that the witnesses deposed that  after  noticing  the
crowd from a far off distance, they hid in the paddy field which  was  chest
high, thus their identifying the accused persons from that  distance  cannot
be believed. The Trial Court did not pay any heed to the submissions of  the
accused and went on convicting the accused unjustifiably under Section  149,
IPC also and the High Court committed a grave error in affirming  the  same.
More particularly, in view of the admitted enmity between the  parties,  the
informant (PW 2) being an accused in the  murder  case  of  the  brother  of
Appellant No. 1 and in view of depositions of witnesses not attributing  any
specific overt act to the accused,  the  conviction  of  the  accused  under
Section 149, IPC is unsustainable.
10.   Relying on Bhudeo Mandal & Ors. Vs. State of Bihar (1981) 2  SCC  755,
learned counsel argued that in order to convict an accused with the  aid  of
Section 149, IPC the Court, after discussing the entire evidence, must  give
a clear finding as to the ‘common object’ of the unlawful assembly,  whereas
in the case on hand the Trial Court  has  not  given  any  observation  with
regard to common object of  unlawful  assembly.  Also  placing  reliance  on
Santosh Vs. State of Madhya  Pradesh  (1975)  3  SCC  727,  learned  counsel
submitted that each member of a mob need not necessarily be held liable  for
the actions of every other member of that mob. In support of the  contention
that the accused could not have been convicted with the aid of Section  149,
IPC in the absence of  clear  finding  on  common  object  of  the  unlawful
assembly, learned counsel has further relied on this  Court’s  judgments  in
Kuldip Yadav Vs. State of Bihar (2011) 5 SCC 324; Shaji Vs. State of  Kerala
(2011) 5 SCC 423 and Badal Murmu Vs. State of W.B. (2014) 3 SCC 366.
11.   Learned senior counsel finally submitted that the  accused  appellants
have already undergone sentence of about seven years and  the  incident  had
taken place about forty years back and there is no reason  to  continue  the
accused to suffer in jail.
12.   On the other hand, Ms. Prerna Singh,  learned  counsel  appearing  for
the State, vehemently opposed the submissions made by the  counsel  for  the
accused-appellants.  She  contended  that  a  strong  mob  of   around   400
assailants entered the village Singhimari armed with bows, arrows,  ballams,
bhalas, kulharis and other  deadly  weapons  and  mercilessly  attacked  the
villagers, looted their properties and burnt  several  houses.  The  ghastly
attack was led by the accused Surang  Lal  Yadav  riding  on  a  horse  back
wielding  a  sword  in  his  hand  and  the  other  accused   had   actively
participated in the heinous crime which resulted in killing of  14  innocent
persons and injuring several others. The prosecution has  examined  as  many
as 38 witnesses including  PW  2  (Amjad  Ali)—the  informant  who  was  the
eyewitness. He deposed in clear and  categorical  manner  that  the  accused
Surang Lal Yadav was leading the mob which went on a killing  spree  in  the
village on the date of occurrence.  PW  4—Abdul  Mokim,  another  eyewitness
deposed that he had carried the dead bodies  to  Kishanganj  Hospital  in  a
cart on the instruction of police. PW 11—Sk. Samayul deposed  that  when  he
tried to run away from the mob,  accused  Sahdeo—appellant  herein,  gave  a
lathi blow. Nonetheless, 26 witnesses have  in  clear  terms  explained  the
role played by Surang  Lal  Yadav.  Accused-appellant  Anup  Lal  Yadav  was
identified  by  not  a   few   but   14   prosecution   witnesses,   whereas
accused/appellant Sahdeo was identified by 11  witnesses.  They  deposed  in
unequivocal terms that from the paddy  field,  they  had  clearly  seen  the
occurrence of brutal killing of  their  kith  and  kin  and  devastation  of
properties at the hands of accused/appellants led by Surang Lal Yadav.
13.   Strongly rebutting the argument of  learned  senior  counsel  for  the
accused/appellants that the Trial Court ought not have charged  the  accused
under Section 149, IPC learned counsel submitted that the  common  intention
of the accused appellants was writ large that they wanted  to  create  havoc
in the area occupied by the victims and to fill terror in  their  minds.  In
pursuance of this common object, the accused  used  deadly  weapons  against
the victims and killed 14 innocent persons besides injuring several  others.
She submitted that the law  is  abundantly  clear  that  if  an  offence  is
committed by any member of an unlawful assembly  in  furtherance  of  common
object of that assembly, every member of that unlawful  assembly  is  guilty
of that offence. Specific overt act of  each  member  of  unlawful  assembly
needs not to be proved when the accused are proved to  be  members  of  that
assembly. In support of her contention, she relied  upon  the  decisions  of
this Court in State of A.P. Vs. Thakkidiram Reddy (1998) 6  SCC  554;  Yunis
Vs. State of M.P. (2003) 1 SCC 425 and State of Rajasthan  Vs.  Shiv  Charan
(2013) 12 SCC 76.
14.   Learned counsel further submitted that after carrying out  a  thorough
investigation and recording  the  statements  of  eyewitnesses,  police  has
filed the charge sheet. The Trial Court had undertaken a detailed  procedure
of trial and examined number of witnesses.  Only  after  conducting  a  full
fledged trial and on a careful analysis of the facts  and  circumstances  of
the case, the Trial Court convicted the accused for the offences  for  which
they were charged with. The Trial Court rightly came to  a  conclusion  that
it may not be  possible  to  attribute  specific  act  to  every  member  of
unlawful assembly of about 400 people. Therefore, the Trial  Court  observed
that “it is established beyond doubt that there  was  a  mob  of  about  400
persons with a ‘common object’ to commit murder of bharia musalmaan and  set
their houses  on  fire  and  loot  their  moveable”.  The  High  Court  also
undertook the exercise of reappreciation of entire evidence  and  then  only
affirmed the conviction and sentence order passed by the  Trial  Court.  The
High Court observed that “the conduct  of  the  accused  persons  prior  and
during the course of  occurrence,  clearly  demonstrate  that  their  common
object was to  commit  loot,  arson  and  murder.”  Hence,  learned  counsel
finally submitted that, the judgments of Courts below do not  call  for  any
interference by this Court.
15.    We  have  heard  learned  counsel  on  both  sides  and  perused  the
depositions of prosecution witnesses in detail and other material  available
on record including the opinions of Doctors who conducted postmortem on  the
dead bodies. It appears from the record that on the  fateful  day,  a  great
turmoil  took  place  in  which  several  innocent  villagers   lost   their
properties, kith and kin. We notice that some of the accused  are  still  at
large. We have carefully gone through the contentions raised by the  counsel
on either side. An  examination  of  the  deposition  of  PW-2  (Amzad  Ali)
reveals that at about 8 a.m. on the day of incident, he  had  witnessed  the
devastation carried on by the mob under the supervision  of  accused  Surang
Lal Yadav who was riding on a  horse  carrying  a  sword  in  his  hand.  He
categorically stated that he had seen from the paddy  field  that  the  mob,
most of them were  undoubtedly  Santhals,  armed  with  deadly  weapons  and
burning wooden pieces done to death about 10-12 persons,  caused  damage  to
the properties of the villagers and set several houses  ablaze.  He  further
stated  that  he  had  identified  33  persons  in  the  mob  including  the
appellants herein and disclosed their names. In the  cross  examination,  he
deposed that he was hiding in the paddy field for  an  hour  from  where  he
witnessed the activities of  the  mob  led  by  Surang  Lal  Yadav.  Another
eyewitness PW 3 (Abdul Sattar)  also  deposed  that  Surang  Lal  Yadav  was
carrying a sword in his hand and Anup Lal Yadav  (appellant  herein)  had  a
‘Bhala’ in his hand while they were committing the offences.  PW  3  further
deposed that when  he  was  fleeing  with  fear,  Hopna  Santhal  (absconded
accused) hit on his head with a lathi from behind.  PW 13  (Imazuddin)  also
in  clear  terms  deposed  that  Surang  Lal,  the  leader   (Mukhiya)   was
instigating the mob saying kill these bhariya people. Another  witness  Kalu
@ Kalimuddin (PW 16)  identified  Sahdev  Chamar  (appellant  herein)  among
others.  Other  prosecution  witnesses   PW   17   (Abul   Kabir),   PW   18
(Naijiruddin), PW 19 (Abdul Kudus),  PW  20  (Ainul  Haque),  PW  22  (Samul
Haque) who all are also eyewitnesses,  narrated  the  roles  played  by  the
accused and they all categorically stated that Surang Lal Yadav was  leading
and instigating the mob to kill the villagers.  Besides  these  individuals,
we have also gone through the depositions of  PW  24—Devendra  Pd.  (a  shop
owner), PW 27—Muzaffar  Husain  (the  author  of  the  written  report),  PW
28—Dhanik Lal Sah (a witness of inquest report of some dead bodies)  and  PW
37—Rana Krishna Singh (I.O.). The evidences of these  prosecution  witnesses
are  corroborating  and  consistent.  PW  38  (Shivaji   Singh),   ASI   has
categorically deposed about the occurrence of the  incident  and  the  roles
played by the  accused.  He  deposed  that  at  about  10.15  a.m.  on  25th
September,  1974  he  visited  the  village  Singhmari  and  witnessed   the
gathering of large number of Santhals (accused persons)  while  the  persons
belonging to  the  victim  community  were  running  helter  skelter.    The
evidence of the prosecution is trust worthy and inspires confidence  in  the
mind of the Court and by any stretch of imagination it  cannot  be  believed
that  the  accused  were  falsely  implicated.  Thus,  from  the  facts  and
circumstances of the case, it is evident that  the  huge  mob  was  led  and
instigated by Surang Lal Yadav (appellant) and Anup  Lal  Yadav  and  Sahdev
Chamar (other appellants) who had actively participated in the  carnage  and
slaughtered innocent villagers with deadly  weapons.  It  is  worthwhile  to
note that there is no denial  on  the  part  of  the  accused  as  to  their
participation in the atrocities. In such  circumstances,  the  Court  cannot
ignore  the  overwhelming  evidence  of  the   prosecution   witnesses   who
categorically described the role played by the accused.
16.   In Lalji Vs. State of U.P. (1989) 1 SCC 437, this Court observed:
      “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 vicarious 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 objects 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 falls 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  hand  commit  the
      offence committed in prosecution of the common object of the  unlawful
      assembly or such as the members 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. [pic]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 specific 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.


17.   In Yunis  Vs.  State  of  M.P.  (2003)  1  SCC  425,  learned  counsel
appearing for the appellant therein argued that no overt act was imputed  to
his client and he was being implicated only on  the  basis  of  Section  149
IPC. This Court ascribing no merit to the argument, held that  “even  if  no
overt act is imputed to a  particular  person,  when  the  charge  is  under
Section 149 IPC, the  presence  of  the  accused  as  part  of  an  unlawful
assembly is sufficient for conviction”. Accordingly the Court in  that  case
observed that the appellant was a member  of  the  unlawful  assembly  which
itself is sufficient to hold him guilty  when  his  presence  has  not  been
disputed.
18.   Relying on Lalji Vs. State of U.P. this  Court  in  Subal  Ghorai  Vs.
State of W.B. (2013) 4 SCC 607 held;
      “If an offence is committed by a member of the  unlawful  assembly  in
      prosecution of the common object, any member of the unlawful  assembly
      who was present at the time of commission of offence  and  who  shared
      the common object of that assembly would be liable for the  commission
      of that offence even if no overt act was committed by him. If a  large
      crowd of persons armed with weapons assaults intended victims, all may
      not take part in the  actual  assault.  If  weapons  carried  by  some
      members were not used, that would not absolve them  of  liability  for
      the offence with the aid of Section 149  IPC  if  they  shared  common
      object of the unlawful assembly”.

19.   Further, in State of Rajasthan Vs Shiv Charan, (2013)  12  SCC  76  it
was opined by this Court:
      “The pivotal question of applicability of  Section  149  IPC  has  its
      foundation on constructive liability which is the sine qua non for its
      application. It contains essentially only two ingredients, namely, (I)
      offence committed by any member of any  unlawful  assembly  consisting
      five or more members and; (II)  such  offence  must  be  committed  in
      prosecution of the common object (Section 141 IPC) of the assembly  or
      members of that  assembly  knew  to  be  likely  to  be  committed  in
      prosecution of the common object. It is not necessary that for  common
      object there should be a prior concert as the  common  object  may  be
      formed on the spur of the moment. Common object would mean the purpose
      or design shared by all members of such assembly and it may be  formed
      at any  stage.  Even  if  the  offence  committed  is  not  in  direct
      prosecution of the common object of the unlawful assembly, it may  yet
      fall under the second part of Section 149 IPC  if  it  is  established
      that the offence was such, as the  members  knew,  was  likely  to  be
      committed”.


20.   Thus, by appreciating the entire evidence on record, we are unable  to
accept  the  contention  advanced  by  learned  senior   counsel   for   the
accused/appellants that  the  accused  were  merely  passive  onlookers  who
joined the mob out of curiosity and they had no  common  intention  and  did
not share the common object of  the  unlawful  assembly.  In  the  light  of
aforementioned decisions of this Court, we are also not able  to  appreciate
the contention of the appellants that no overt act has  been  attributed  to
each of the accused hence application of Section 149, IPC is not  justified.
We have no hesitation to come to a conclusion that the appellants were  part
of the unlawful assembly sharing the common object of killing,  rioting  and
looting the villagers.   Each one of the accused played an  active  role  in
furtherance of the common object of the assembly and the Courts  below  were
perfectly right in convicting  the  accused/appellants  under  Section  149,
IPC.
21.   Hence, in our considered opinion, the prosecution has proved its  case
beyond reasonable doubt. In view of the settled principles of law,  once  it
is established that the unlawful assembly had a common  object,  it  is  not
necessary that all persons forming the unlawful assembly must  be  shown  to
have committed some overt act, rather they can be  convicted  under  Section
149, IPC. We, therefore, find no  error  in  the  order  of  conviction  and
sentence passed by the Trial Court and affirmed by the  High  Court  calling
our interference under Article 136 of the Constitution.
22.   The appeals fail and are hereby dismissed.

                                  ………………………………….J.
                                  (RANJANA PRAKASH DESAI)




                                  …………………………………J.
                                  (N.V. RAMANA)
NEW DELHI,
SEPTEMBER 26, 2014.

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