VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL & Ors.

1.5 For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an ‘unlawful assembly’ consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. The B C D E F G H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL 1053 common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. [Paras 29, 30][1066-G-H; 1067-A-D]

#2. The Sessions Court purported to frame ‘issues’– a practice statutorily mandated under the Code of Civil Procedure. But, it is informed that in the State of Gujarat the practice of framing “issues” is prevalent even in the trial of a criminal case. “Issues” are not the same as “charges”. They are not framed prior to the commencement of trial. They are only ‘identified’ at the time of writing the judgment. Issue Nos.2 and 4 framed by the Sessions Judge are with respect to offence of unlawful assembly, rioting and the vicarious liability under the IPC. Issue No. 2 makes a reference to all the accused put to trial in the context of the offences of the unlawful assembly and rioting. Issue No. 4 does not make a reference to “all the accused”, in the context of the offences under Sections 302 read with Section 149 IPC. Since the prosecution invoked Section 149, charges should have been framed specifying which of the accused were sought to be punished for which offence with the aid of Section 149. From the judgment of the Sessions Court, there is no clear findings recorded (i) as to the existence of an unlawful assembly, (ii) if it existed, how many (number of the members) were present in the unlawful assembly. There appears to be an accusation of the commission of the offence under Section 143 IPC. There was no finding whether the assembly consisted of 17 members or less (number) and which of the 17 accused were present (the identity) in the assembly. Nor was there any clear finding regarding the A B C D E F G H 1054 SUPREME COURT REPORTS [2018] 6 S.C.R. common object of the assembly. Consequentially, there was no finding recorded by the Sessions Court whether an offence of unlawful assembly punishable under Section 143 was committed by all or some of the accused. The Trial Court recorded the conviction under Section 148 IPC against 4 accused. The record is not very clear whether the accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased. [Paras 33, 36][1067-H; 1068-A-B, H; 1069-A-G]

#3. It would not be justified to reverse the finding of acquittal in the case on hand on the grounds that (i) the framing of charges was egregiously erroneous and not in accordance with the provisions of the CrPC; or (ii) the courts below failed to record appropriate findings with respect to the various offences which the accused are said to have committed; or (iii) the 1st appellate court’s reasoning in declining to reverse a finding of acquittal recorded by the trial court was defective. For all the abovementioned reasons, a conclusion should have been recorded that there is a failure of justice in the case on hand looked at from the point of view of either the victims or even from the point of view of the convicted accused. The most normal consequence thereafter should have been to order a fresh trial, but such a course of action after a lapse of 26 years of the occurrence of the crime, would not serve any useful purpose because some of the accused have died in the interregnum. The families of each of the deceased be compensated by the award of public law damages and should be paid by the State an amount of Rs. 25,00,000/- each and the injured witnesses, if still surviving, otherwise their families are required to be paid an amount of Rs.10,00,000/- each. [Paras 39, 43, 44][1071-E-G; 1073-E-G; 1074-A-B] Shambhu Nath Singh & Others v. State of Bihar AIR 1960 SC 725; Esher Singh v. State of Andhra Pradesh (2004) 11 SCC 585 : [2004] 2 SCR 1180; Masalti v. State of U.P. AIR 1965 SC 202 : [1964] SCR 133; Dalbir Singh v. State of U.P. (2004) 5 SCC 334; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court A B C D E F G H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL 1055 Legal Aid Committee) v. State of Orissa & Others (1993) 2 SCC 746 : [1993] 2 SCR 581– relied on. Sheo Mahadeo Singh v. State of Bihar (1970) 3 SCC 46; Lalji v. State of Uttar Pradesh (1989) 1 SCC 437 : [1989] 1 SCR 130; Bala Seetharamaiah v. Perike S. Rao (2004) 4 SCC 557 : [2004] 3 SCR 28; Ram Gope v. State of Bihar AIR 1969 SC 689 : [1969] SCR 558; Yeshwant & Others v. State of Maharashtra (1972) 3 SCC 639 : [1973] 1 SCR 291; Manga alias Man Singh v. State of Uttarakhand (2013) 7 SCC 629 : [2013] 3 SCR 175; Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364 : [1955] SCR 393; Sundar Singh v. State AIR 1955 All 232(FB); Sabir v. Queen Empress (1894) ILR 22 Cal 276; In re Choitano Ranto and Others AIR 1916 Mad 788 – referred to. Case Law Reference AIR 1960 SC 725 relied on Para 14 (1970) 3 SCC 46 referred to Para 14 [1989] 1 SCR 130 referred to Para 14 [2004] 2 SCR 1180 (2004) 5 SCC 334 [2004] 3 SCR 28 [1969] SCR 558 [1973] 1 SCR 291 [2013] 3 SCR 175 relied on relied on Para 17 Para 18 referred to Para 20 referred to Para 21 referred to Para 23 referred to Para 23 A B C D E F [1955] SCR 393 referred to Para 23 AIR 1955 All 232(FB) referred to Para 24 (1894) ILR 22 Cal 276 referred to Para 26 G AIR 1916 Mad 788 referred to Para 26 [1964] SCR 133 [1974] 1 SCR 489 [1993] 2 SCR 581 relied on relied on relied on Para 26 Para 42 Para 44 H 1056 SUPREME COURT REPORTS [2018] 6 S.C.R. A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1525 of 2009. From the Judgment and Order dated 05.10.2004 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 138 of 1996. Crl. A. Nos. 1526-1527 of 2009. WITH S. Nagamuthu (AC), Ms. Tarannum Cheema (AC), A. Selvin Raja, Aniruddha P. Mayee, Avnish M. Oza, Chirag Jain, D.N. Ray, Ms. Hemantika Wahi, Ms. Vishakha, R. P. Wadhwani, Ms. Smrithi Suresh, Ms. Hiral Gupta, Advs. for the appearing parties. The Judgment & Order of the Court were delivered by CHELAMESWAR, J. 1. On 11.07.1992, at about 10.10 pm, an incident occurred in the village of Nana Ankadia leaving 3 persons dead and 5 persons injured. It appears from the judgment of the High Court: “…information about the incident was conveyed by wireless message by PSO of Amreli (Rural) Police Station to PSI, Mr. NG Rajput. On the basis of the said information, PSI, Rajput had gone to village Nana Ankadia and found three dead bodies lying near the shop of Bhikabhai and after getting some further information, he had gone to Amreli Hospital and recorded complaint from Vinu Ranchhod, which was registered at about 1.30 a.m. on 12.07.1992. On the basis of the said complaint, PSI, Rajput started investigation by recording statements, drawing panchnamas and sending the dead bodies for post mortem etc.”

#2. On completion of investigation, a charge-sheet came to be filed against 15 accused because the remaining two accused A-16 and A-17 were absconding for some time. The matter was committed to the Sessions Court of Amreli as offences were exclusively triable by the Court of Sessions. In Sessions Case No. 118/1992, trial was conducted against 15 accused. The trial insofar as the two absconding accused was segregated from the trial of the remaining even after they were apprehended and they were put to trial separately in Sessions Case No. 58/98 before the Special Judge of the Fast Track Court, Amreli.

#3. In Sessions Case No.118/1992, the Sessions Court by its judgment dated 17.01.1996 recorded the conviction of A-1, A-5, A-10 and A-12 as follows: B C D E F G H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL [CHELAMESWAR, J.] 1057 “Prosecution has proved the criminal offence punishable under section 302 and 148 of the Indian Penal Code and under section 135(1) of the B.P. Act, against the accused No. 10 and [12] respectively Nanjibhai Khodabhai and Ratilal Nagji, and therefore the accused No. 10 and 12 are convicted under sections 302, 148 IPC and section 135(1) of the B.P. Act. The accused No. 1 Ravji Duda is convicted for the criminal offence punishable under section 326 and 148 of IPC and section 135(1) of B.P. Act. Whereas the accused No. 5 Manubhai Makanbhia is convicted for the criminal offence punishable under section 326, 323 and 148 of the IPC and section 135(1) of the B.P. Act. Whereas the accused other than these accused, the prosecution has not been able to prove their case beyond doubt therefore the accused No. 2,3,4,6,7,8,9,11,13,14 and 15 are given the benefit of doubt and are acquitted, and if they are not required in any other matter, then the accused Nos. 2,3,4,6,7,8,11,13,14 be released from judicial custody. The accused No. 2,4,9 and 15 are enlarged on bail, their bail bonds are ordered to be cancelled.” And by separate order dated 17.01.1996, A-10 and A-12 were sentenced to imprisonment for life for an offence punishable under Section 302 Indian Penal Code [hereinafter referred to as “IPC”]; one year rigorous imprisonment for an offence punishable under Section 148 IPC; and six months rigorous imprisonment for an offence punishable under Section 135(1) of the Bombay Police Act [hereinafter referred to as “BP Act”].

#4. A-1 was sentenced to suffer six years rigorous imprisonment and a fine of Rs.1000/- for an offence under Section 326 IPC and one year rigorous imprisonment for an offence punishable under Section 148 IPC and six months rigorous imprisonment for an offence under Section 135(1) of the BP Act.

#5. A-5 was sentenced to six years rigorous imprisonment and fine for an offence punishable under Section 326 IPC and one year rigorous imprisonment for an offence punishable under Section 148 IPC, six months rigorous imprisonment for an offence under Section 323 IPC and six months rigorous imprisonment for an offence under Section 135(1) of the BP Act. A B C D E F G

#6. All the convicted accused preferred appeal No. 166/1996 before the High Court of Gujarat challenging conviction and sentence. The State H 1058 SUPREME COURT REPORTS [2018] 6 S.C.R. of Gujarat filed Criminal Appeal No.167/1996 challenging the acquittal of the remaining thirteen accused. It must be mentioned here that the original complainant also filed a Criminal Revision Petition No.138/1996 challenging the decision of the Sessions Court acquitting eleven of the accused.

#7. The two absconding accused nos.16 and 17 “were tried separately for the offences punishable under sections 147, 148, 120B, 302 and 307 read with section 149 of IPC and under Section 25(1)(A) of the Arms Act and under Section 135 of Bombay Police Act in Sessions Case No.58/98.”1 They were found not guilty by the Fast Track Court, Amreli by judgment dated 19.07.2003. The State of Gujarat filed Criminal Appeal No.1226/2003 against the acquittal of accused nos.16 and 17.

#8. All the appeals and the revision were clubbed together and disposed of by the High Court by a common judgment dated 5.10.2004, which is the subject matter of the various appeals before us.

#9. The appeal of A-10 and A-12 was dismissed by the High Court. The appeal of accused nos.1 and 5 was partly allowed. The State appeals challenging acquittals of various accused were dismissed along with the revision filed by the de facto complainant. Hence, these appeals, by the State and the de facto complainant.

#10. Admittedly all the convicts have by now served out their sentences. Some of the accused have even died.

#11. An examination of the record in these appeals left us in distress. The judgments of the Sessions Courts as well as the High Court leave too much to be desired.

#12. We notice the following striking features from the judgment of the Sessions Court that: (i) Charges have not been framed in accordance with the requirements of the CrPC; (ii) There appears to be a charge (however defectively framed), conviction and sentencing of 4 accused for an offence under Section 148 IPC; (iii) There is an omnibus accusation that the accused committed offences falling under Sections 143, 147, 148 and vicariously 1 2.2, Judgment of the High Court. A B C D E F G H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL [CHELAMESWAR, J.] 1059 liable by virtue of Section 149 IPC for the offence of Section 302 IPC; A (iv) The judgment does not contain any clear finding: (a) regarding the existence of an ‘unlawful assembly’ i.e. regarding the accusation of an offence punishable under Section 143 IPC; (b) number of persons (identified or not) who participated in the attack on the deceased and the injured; or (c) the identity of such participants. (v) The judgment is singularly silent regarding the post mortem examination report of one of the 3 deceased and the evidence of the doctor who conducted the post mortem examination. It only discusses the evidence of the doctor who conducted the post mortem on the dead bodies of two of the deceased; (vi) The judgment does not specify whether the accused 10 and 12 are guilty of causing the death of all the 3 deceased or one of them; (vii) The legal analysis and appreciation of evidence in the context of the question of vicarious liability is wholly unsubstantial and not in accordance with the settled principles of law; and (viii) There is material on record to indicate that even some of the accused received injuries in the transaction but no material is on record indicating whether any crime is registered and investigated or anybody is prosecuted in that regard.

#13. The judgment in Sessions Case No.118/1992 commences with an omnibus statement: “In this case against the present accused, there are charges of offences under sections 302, 307, 324, 147, 148, 149, 120B of IPC and section 25(1)(aa) of the Arms Act and section 135 of the Bombay Police Act, for these offences the charge sheet is filed.” Later in the same paragraph it is stated: “Fifteen accused in the case have remained present before the court, my learned predecessor has on 21/3/1994 below Exh. 1 on charges of offences punishable under sections 143, 147, 148, 302 B C D E F G H 1060 SUPREME COURT REPORTS [2018] 6 S.C.R. A B C D E F G H read with 149, 120-b, 307 read with 147, 114, 120-b of the Indian Penal Code and against the accused Nos. 7, 8 and 11 charges under section 27 of the Arms Act, and against all the accused the offence punishable under section 25 of the Indian Telegraphs Act, and for carrying weapons the charges of violation of the Notification by the District Magistrate Amreli, for which against the accused Nos. 2,4,9,15,10,12,13, 1, 3, 6, 7 and 8 the charges of offence punishable under section 135 of the Bombay Police Act, charges were pronounced against the accused.” It appears from the above that no clear charges appear to have been framed. At any rate, no document is brought to our notice showing the charges framed by the Court in spite of repeated enquiry. It must be remembered that it is a case where three persons died and five persons were injured allegedly in an attack by all the accused. Causing death to each one of the three persons or causing injury to each one of the five persons is a distinct offence. Similarly, an offence under Section 307 is a distinct offence specific to a particular victim. The offences under Sections 147 and 148 are distinct offences. Section 149 IPC does not create a separate offence but only declares the vicarious liability of all the members of an unlawful assembly in certain circumstances.

#14. It was held by a three-judge bench of this Court in Shambhu Nath Singh & Others v. State of Bihar2: “Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object” [emphasis supplied] However, there are benches of a lesser smaller strength3 which have observed that Section 149 creates a specific and distinct offence. In view of the fact that decision in Shambu Nath Singhwas decided by a larger bench, the law declared therein must be taken to be declaring the correct legal position. With utmost respect, we may also add that the same is in accord with the settled principles of the interpretation of the statutes having regard to the language of Section 149 and its context. 2 AIR 1960 SC 725 3 Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 paragraph 9; Lalji v. State of Uttar Pradesh, 1989 (1) SCC 437 paragraph 9 VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL [CHELAMESWAR, J.] 1061

#15. Chapter XVII of the Code of Criminal Procedure [hereinafter referred to as “CrPC”] deals with “charges” in a criminal case. Sections 211 to 213 deal with the particulars which are required to be contained in a charge in a criminal trial. These provisions are made to ensure a fair procedure by which a person accused of an offence should be tried – a procedure in compliance with the requirement of the mandate of Article 21 of the Constitution of India. The accused are entitled in law to know with precision what is the charge on which they are put to trial. It was held by this Court in Esher Singh v. State of Andhra Pradesh4: “It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of the IPC.” [emphasis supplied]

#16. In the case on hand where three persons died, the charge under Section 302 must have been framed on three counts against specifically named accused with respect to each of the deceased. Assuming for the sake of argument, that all the 17 persons are accused of causing the death of each one of the three deceased, distinct charges should have been framed with respect to each of the deceased. It is also necessary that the court should record a specific finding as to the guilt of the accused under Section 302 IPC qua the death of a named deceased. If different accused are prosecuted for causing the death of the three different deceased, then distinct charges should have been framed specifying which of the accused are charged for the offence of causing the death of which one of the three different deceased. Charges should also have been proved clearly indicating which of the accused is charged for the offence under Section 302 simpliciter or which of the accused are vicariously liable under Section 149 IPC for causing the death of one or more of the three deceased. Of course, none of the accused is 4 (2004) 11 SCC 585, para 20 A B C D E F G H 1062 SUPREME COURT REPORTS [2018] 6 S.C.R. A eventually found vicariously guilty of the offence under Section 302 IPC read with Section 149 IPC.

#17. By definition of the offences covered under Sections 147 and 1485, a person cannot be charged simultaneously with both the offences by the very nature of theses offences. A person can only be held guilty of an offence punishable either under Section 147 or Section 148.

#18. The legal consequences of framing defective charges or omission in charges was considered by this Court in Dalbir Singh v. State of U.P.6 and this Court held as follows: “Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this section provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.” It is obvious from the above that an erroneous or irregular or even absence of a specific charge shall not render the conviction recorded by a court invalid unless the appellate court comes to a conclusion that failure of justice has in fact been occasioned thereby.

#19. In cases where a large number of accused constituting an ‘unlawful assembly’ are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an ‘unlawful assembly’ is sufficient to render him vicariously liable under Section 149 IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149 IPC for the offence punishable under Section 302 IPC. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime. 5 Section 146 IPC defines the offence of rioting. Section 147, IPC prescribes punishment for offence of rioting. Section 148, IPC prescribes punishment for offence of rioting armed with deadly weapons. 6 (2004) 5 SCC 334 B C D E F G H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL [CHELAMESWAR, J.] 1063

#20. This Court in Bala Seetharamaiah v. Perike S. Rao7 held: “8. Unfortunately, the Sessions Judge did not frame charge against the accused persons for offence punishable under Section 302 IPC read with Section 149 IPC. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 302 IPC read with Section 149 IPC also were not incorporated in the charge framed by the Sessions Judge. The accused were not told that they had to face charges of being members of an unlawful assembly and the common object of such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had a constructive liability and thus they committed the offence punishable under Section 302 IPC read with Section 149 IPC. Of course the mere omission to mention Section 149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. In the instant case, the accused were told to face a charge punishable under Section 302 simpliciter and there was no charge under Section 302 IPC read with Section 149 IPC. Therefore, it is not possible to reverse the conviction of the accused under Section 326 IPC and substitute the conviction for the offence punishable under Sections 302/149 IPC as there was no charge framed against them for such offence.” 21. When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that ‘crucial act’ - for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime.8 7 (2004) 4 SCC 557, para 8. 8 Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: “… When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence.” A B C D E F G H 1064 SUPREME COURT REPORTS [2018] 6 S.C.R. A B C D E F Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrong doers (who actively collaborate or assist the commission of offences) claiming impunity on the ground that their activity as members of the unlawful assembly is limited. The responsibility of the prosecution and/or of the Court (in a case like the one at hand where large numbers of people (5 or more) are collectively accused to have committed various offences and subjected to trial) - in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group - requires an analysis. Such analysis has two components – (i) the amplitude and the vicarious liability created under Section 149; and (ii) the facts which are required to be proved to hold an accused vicariously liable for an offence.

#22. To understand the true scope and amplitude of Section 149 IPC it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the IPC which is titled “Of the offences against the public tranquility”. Sections 141 to 158 deal with offences committed collectively by a group of 5 or more individuals.

#23. Section 141 IPC declares an assembly of five or more persons to be an ‘unlawful assembly’ if the common object of such assembly is to achieve any one of the five objects enumerated in the said section.9 One of the enumerated objects is to commit any offence.10"The words falling under section 141, clause third “or other offence” cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Indian Penal Code or any other law.”11 The mere assembly of 5 or more persons with such legally impermissible object itself constitutes the offence of unlawful assembly punishable under Section 143 of the IPC. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143.12 G

#24. If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, 9 See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639 10 Section 40 “offence”.- Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code. 11 Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629 12 See Dalip Singh and Ors. Vs. State of Punjab , AIR 1953 SC 364. H VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI DUDABHAI PATEL [CHELAMESWAR, J.] 1065 every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object.13 In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section 141.

#25. Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under 146 and 148. To constitute an offence under Section 146, the members of the ‘unlawful assembly’ need not carry weapons. But to constitute an offence under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under Section 146 and the person charged with an offence under Section 148 must also be armed with a deadly weapon.14

#26. Section 149 propounds a vicarious liability15 in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. The scope of Section 149 IPC was enunciated by this Court in Masalti16: “The crucial question to determine in such a case 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 by section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a O R D E R In view of the situation obtaining on the record, we thought it fit to call for the assistance of Mr.S.Nagumuthu and Ms.Tarannum Cheema, learned counsel to assist this Court. We place on record the invaluable assistance rendered by them as amicus curiae. We also deem it appropriate to place on record the appreciation for the effort put in by Mr. A. Selvin Raja, learned counsel, a young member of the Bar, appearing for the appellant. Divya Pandey Appeals disposed of. A B C D E F G H