V." . STATE OF BIHAR (Criminal Appeal No.1494 of 2004) JULY 30 & Ors. v. STATE OF BIHAR

thereafter fired a shot which hit the deceased resulting in A his death. 'AS' fired seven to eight shots that caused inju- ries to PW-3, PW-10 and PW-6. One of the stones thrown by SNS hit PW-5 and caused injury to him. 'SNS' and 'AS' were convicted for offence punish- able under Section 30.2 and Seclion 148 IPC and Section 27 of Arms Act and sentenced to undergo life imprison- ment, three years and five years respectively for the three offences. All the five appellants in appeal no. 1494 of 2004 were found guilty of offence punishable under Section 302 r.w. Section 149 IPC and Section 147 and sentenced c to life imprisonment and two years respectively. B The High Court dismissed the appeals rejecting the plea of the appellants that the evidence of witnesses should not be relied upon as there was sudden pre-fight and, therefore, Section 149 has no application. Hence these appeals . D Partly allowing appeal no.1494 of 2004 and dismiss- ing appeal no. 484 of 2006, the Court HELD: 1.1. A plea which was emphasized by the ap- E pellants relates to the question whether Section 149, IPC has any application for fastening the constructive liabil- ity which is the sine qua non for its operation. The em- phasis is on the common object and not on common in- tention. Mere presence in an unlawful assembly cannot F render a person liable unless there was a common ob- ject and he was actuated by that common object and that object is one of those set out in Section 141. Where com- man object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of G 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 H 550 SUPREME COURT REPORTS [2008] 11 S.C.R. B A 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 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 'com- mon.', it must be shared by all. 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 c 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 pros- ecution 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 con- nected with the common object by virtue of the nature of the object. Members of an unlawful assembly may have 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 pros- ecution of their common object may vary not only accord- ing 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. [Para 8] [556-H; 557-A-H; 558-A-B] E D F

1.2. 'Common object' is different from a 'common in- tention' as it does not require a prior concert and a com- mon 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 as- certained from the acts and language of the members composing it, and from a consideration of all the surround- G H ,, \""" ;. )' .... .>--- ..... ~ .., ...... ... ... ~ ·j -~ •" ...... .. )" SHIVJEE SINGH AND ORS. v. STATE OF BIHAR 551 ing circumstances. It may be gathered from the course of A conduct adopted by the members of the assembly. For determination of the common object of the unlawful as- sembly, the conduct of each of the members of the un- lawful assembly, before and at the time of attack and there- after, the motive for the crime, are some of the relevant B considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essen- tially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the mem- bers, and the behaviour of the members at or near the scene c 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 subse- quently become unlawful. It is not necessary that the in- tention 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 mate- rial. 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. [Para 9] [558-8-G] E D

1.3. Section 149, IPC consists of two parts. The first part of the section means that the offence to be commit- F ted in prosecution of the common object must be one which is committed with a view to accomplish the com- mon 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 G H 552 SUPREME COURT REPORTS [2008] 11 S.C.R. A 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 B general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained i.n the human mind, and it being merely a men- tal attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which c the person commits and the result therefrom. 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 assem- bly knew was likely to be committed in prosecution of the common object. That, however, does not make the con- verse 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 can- not 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 mem- bers of the assembly knew to be likely to be committed in F prosecution of the common object and falls within the sec- ond 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 G knew to be likely committed in the prosecution of the com- D E mon object. [Para 10] [558-H; 559-A-H; 560-A-B]