Principle, scope and applicability of Section 149:
The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Every member of an unlawful assembly is guilty of the offence committed in prosecution of the common object.
Section 149 is divided into two parts:
(1) An offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly; and (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. In order that the case may come within Section 149, the offence must have been: either (1) done to accomplish the common object, or (2) though not so done, it must have been such as the members of the assembly knew to be likely to be committed in prosecution of the common object.
Where there is no satisfactory evidence to prove the formation of unlawful assembly at any time, conviction under these sections cannot be upheld.
The common object was to take the deceased to the Panchayat to settle matters; it was not to assault or kill him, but since most of the members were armed with lathis, the remaining members of the mob or the assembly ‘knew’ that force was likely to be used and if it was subsequently used; the remaining members as members of the assembly would be parties to the assault by virtue of their knowledge of its likelihood.
The first part of Section 149, I.P.C., means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object.
It is enough if it is adopted by all the members and is shared by all of them in order that the case may fall under the first part of the offence committed must be connected immediately with the common object of unlawful assembly, of which the accused were members.
Even if the offence committed is not in direct prosecution of the common object of the assembly it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed.
When a body of heavily armed men set out to take a woman back by force they must be taken to have known that someone was likely to be killed before the day was over. Consequently in such a case if one member of the party commits murder all the members of the party must be held either directly or constructively guilty of murder.
Where the object of an unlawful assembly was to abduct and murder A and grievous hurt was caused to B by some of them, the Court held that as injuries were not inflicted in pursuance of the common object, others could not be held constructively liable for an offence under Section 325.
In the case of Chanakya Dhiban (Dead) v. State of West Bengal and others, the deceased was assaulted severely by five accused persons. The deceased was found to have a sharp cut injury on the top of skull. According to doctor, the injury was sufficient in the ordinary course of nature to cause death.
The Hon’ble Supreme Court found that all the accused persons were armed. Their conduct before, during and after the occurrence clearly brings about the object. It was held by the Hon’ble Supreme Court that it is inconceivable that person armed would surround the person without any criminal object in mind. The mere fact that only one of them used the weapon, does not really rule out application of this section.
In prosecution of the common object—Words explained:
The Supreme Court has pointed out that it is true that in order to convict persons vicariously under Section 149, it is not necessary to prove that each and every member of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in prosecution of the common object of the members of the unlawful assembly.
The words “in prosecution of the common object” mean “in order to attain the common object”, i.e., “immediately connected with the common object” but they do not mean “during the prosecution of the common object”.
The expression “know” does not mean a mere possibility such as might or might not happen. Though, it can be said that 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 does not make the converse proposition true.
There may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149, I.P.C., 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 of Section 149 as explained above 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.
The emphasis is on the common object. For a conviction under this section, there should be clear finding as to common object and the evidence discussed must show not only the nature of the common object but also that the object is unlawful.
If there is no overt act attributed to any of the accused the mere fact that they were armed with lathis, by itself, would not prove that they shared the common object with which other co-accused were inspired.
But when the members of the unlawful assembly were armed with lathis and spear the common object of which was to assault the victims, the common object may not be to murder one of the victims, the members of the assembly have known that at least grievous hurt with a sharp cutting weapon was likely to be caused by any member of the assembly in prosecution of the common object and they could have been convicted under Section 326 read with Section 149 of the Penal Code.
The Supreme Court in Munna Chanda v. State of Assam, held that the concept of common object, it is well known, is different from common intention. It is true that so far as common object is concerned no prior concert is required.
Common object can be formed at the spur of the moment. Course of conduct adopted by the members of the Assembly, however, is a relevant factor. At what point the common object of the unlawful assembly was formed would depend upon the facts and circumstances of each case.
The Supreme Court further said that Section 149, I.P.C. creates a specific and distinct offence. There are two essential ingredients thereof:
(i) Commission of an offence by any member of unlawful assembly, and
(ii) Such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
Assembly whether unlawful assembly if common object not translated into action:
It is not necessary in all cases of unlawful assembly with an unlawful common object, that the said common object must be translated into action or be successful. In many cases although requisite number of persons had the unlawful common object and with that common object formed an unlawful assembly, yet that common object might have been foiled or unsuccessful due to some reason or other.
But that failure cannot be the reason to hold that there was no unlawful assembly as defined under the Indian Penal Code if the essential ingredients of the offence under Section 143, I.P.C. are proved.
Simply because benefit of doubt was given resulting in acquittal in respect of the charge under Section 379, I.P.C. (theft) it cannot be argued that there could have been no unlawful assembly having the common object to reap the paddy even though the common object is unfulfilled.
The section presupposes a finding that there was an unlawful assembly with a common intention to commit an offence. Where prior concert and planning by all the accused is clear, the fact that some of the accused came in one truck and attacked the deceased and other accused came in another truck and attacked the companion of the deceased would not make any difference as both the attacks are part of the same transaction. In such a case the section can be easily applied.
Acquittal of some —And conviction of others:
If the presence of the accused becomes doubtful, the question of the application of Section 149, I.P.C. does not arise. The acquittal of an accused person raises a presumption, in the eyes of law, that he is innocent even if he was actually guilty.
But it is only the acquitted persons and not the convicted accused persons who can get the benefit of such presumption. If only five known persons are alleged to have participated in an attack but the Court finds that two of them were falsely implicated, it would be quite natural and logical to infer that the participants were less than five in number.
They will not be convicted as they are not members of unlawful assembly. In a case, Subran v. State of Kerala, the Supreme Court observed that in an unlawful assembly if certain members are acquitted by the Court and the number is reduced to less than 5, the remaining members cannot be convicted as members of unlawful assembly.
On the other hand, so long as there is a firm finding based on good evidence and sound reasoning that the participants were five or more in number while the assailants were actually five in number, if amongst the five accused persons standing trial before the Court there could be a doubt as to the identity of two of the alleged assailants who are therefore acquitted the others will not get any benefit; there being a doubt regarding the identity but no doubt regarding the number of participants in the occurrence.
There would be no doubt also regarding assembly still remaining an unlawful assembly and no doubt also regarding the liability of those convicted regarding whose identity there is no doubt. A definite conclusion that the number of participants was at least five may be difficult to reach where the allegation of participation is confined to the five known persons and there is doubt about the identity of even one.
But where a large number of known persons such as eighteen are alleged to have participated and the Court gives the benefit of doubt and acquits many of them that the number of those about whose participation there can be no doubt is reduced to less than five, it may not be difficult to reach the conclusion that the number of participants could not possibly, be less than five and the convicted persons were members of an unlawful assembly.
Such a case is one of doubt only as to the identity of some participants and not as to the total number of participants. The principle of vicarious liability does not depend upon the proof of facts beyond reasonable doubt which makes such a principle applicable.
It is not possible to accept the abstract proposition that where the charge names all the persons constituting an unlawful assembly and it is found that, of them all only less than five are present in the assembly, the number of persons present in the assembly being reduced below five, the charge under Section 147 or 148, I.P.C., cannot be sustained against those who are found to be present.
Cases may arise where in the charge; the prosecution names five or more persons and alleges that they constituted the unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons so named and two or more of them are acquitted leaving before the Court less than five persons to be tried then Section 149 cannot be invoked.
But where the charge names five or more persons as composing an unlawful assembly, and the evidence shows that the unlawful assembly consists of some other persons not identified and so not named, the acquittal of some of the persons named in the charge, will not necessarily dispense the charge under Section 149 because along with the two or three persons convicted, there were others who composed the unlawful assembly though not named.
In such cases, the acquittal of one or more persons named in the charge does not affect the application of Section 149 because on fact the Court is able to reach the conclusion that the persons composing the unlawful assembly were still five or more than five.
That being the position of law, it cannot be contended that only because of the fact that eleven persons named in the charge, eight have been acquitted, the charge against the remaining three, all being members of an unlawful assembly, is bound to fail.
The charge related to the commission of the offence of unlawful assembly by the appellant along with four others named co-accused and with no other person. The trial in fact went throughout on that basis.
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So, when the other four co-accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing the injuries to the deceased.
It was as such not permissible to invoke Section 149 or Section 34, I.P.C. The appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him with regard to the participation of others.
It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, I.P.C.
Mere presence of the accused persons on the scene of occurrence would not make them guilty under Section 149 unless their common object was to commit any offence. Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence was actually committed in prosecution of the common object.
Such knowledge may reasonably be collected from the nature of the assembly, aims or behaviour at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.
The participation of the accused went beyond a mere intention to protect. It not only included knowledge of likelihood of hurt of some kind to members of the party attacked but it included an attack by the accused himself.
The nature of that attack was, however, relatively mild. At most, from the concerted action of so many men, the accused could be reasonably held to be aware that grievous hurt would result but it is doubtful if he could be held guilty of participation in an unlawful assembly which had the common object of killing or even maiming the three persons who lost their lives.
If it is doubtful whether the common object of the unlawful assembly joined by the accused was to commit any acts which were either intended to cause death, or from which knowledge of likelihood of death could be inferred, persons other than those who actually committed the acts resulting in death could not be held vicariously liable for murder.
Every offence which may be committed by a member of an unlawful assembly will not necessarily be ascribed to or vicariously fastened upon every other member of that assembly by using Section 149, I.P.C.
Where certain persons were members of an assembly, the unlawful object of which developed at the spot of occurrence and they continued as its members not merely as passive innocent spectators but indulged in overt acts along with others, the accused persons must be held liable for conviction.
It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage but at all crucial stages he shared the common object of the assembly at all those stages. Where some of the accused were members of the unlawful assembly at one particular stage but not at another, the accused who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages.
For fixing criminal liability under Section 149 on members of an unlawful assembly the Court must find with certainty that there were at least five persons sharing the common object.
With six named persons alleged to have the common object of demolishing four of the complainant were charged and convicted by the Sessions Judge under Sections 148/308/149 but the High Court in appeal acquitted two of them giving the benefit of doubt and convicted the rest. It was held that the conviction of the remaining four could not be sustained either under Section 148 or under Section 149.
In the case of State of Haryana v. Tek Singh and others, it was held that when the presence of the accused, who were armed with deadly weapons is established beyond doubt, Sections 148 and 149 would come into operation and they would be liable for the offence.
Section 149 creates a distinct offence:
The section creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence.
While considering the quantum of sentence the Court may take into account the factum of young age of the accused and the absence of overt act. In other cases it was held that Section 149, like Section 34 creates a specific offence.
The section has the following ingredients. —(i) An unlawful assembly, (ii) an offence committed by a member of the unlawful assembly, (iii) offence must be committed (a) in prosecution of the common object of the unlawful assembly, or (b) it must be such as the members of the assembly knew to be likely to be committed in prosecution of the common object. “Unlawful assembly” has been defined in Section 141.
Before conviction under this section the essential ingredients of Section 141 must be established. The essence of Section 149 is that an accused person whose case falls within it cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly.
It is an offence such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. The emphasis is on, ‘common object’. There is no question of common intention.
Every person who is engaged in prosecuting the common object, although he had no intention of committing the offence, will be guilty of that offence if it fulfils or tends to fulfil the common object. He would be guilty of an offence committed by the other members in the same manner. It is not necessary that each and every member must do an overt act. Part two of Section 149 (Knowledge of likelihood of offence being committed) is attracted in such a case.
The Supreme Court, in Yunis v. State of M.P., held that presence of accused as part of unlawful assembly is sufficient for conviction.
In Amjaci Ali v. State of Assam the Supreme Court reiterated that the common object could develop eo instanti and being a question of fact it can always be inferred and deduced from the fact and circumstances projected and proved in a given case.
It was held in Gangadhar Behera v. State of Orissa, that the expression ‘in prosecution of common object’ as appearing in Section 149, I.P.C. was to be strictly construed as equivalent to ‘in order to attain the common object’.
The Supreme Court has had an occasion to consider this aspect of the matter more elaborately in the case of Lalji v. State of U.P.3 The Court observed thus: “Section 149 makes every member of an unlawful assembly at the time of committing 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 object 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 hands commit the offence in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew 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. 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 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. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts.”4 In other words it is not open to the Court to acquit the members of the unlawful assembly for lack of corroboration as to their participation.
Constructive liability of accused for acts of others in a free fight between two parties:
There was a sudden mutual fight between the parties. There could, therefore, be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on the accused. The accused could be convicted only for the injuries caused by him by his individual acts.5
One of the accused had been using water from the well near his hut for irrigation purpose along with another accused who was repairing the old water channel on the ridge when the party of the complainant came there and stopped the accused from further repairing the water channel.
The other accused present in the hut merely at a distance of 15 or 20 paces from the ridge, then came there. There was remonstrance and counter-remonstrance which resulted in a fight. There was no premeditation on the part of the first accused or any other accused to cause the deceased’s death and the fight was a sudden affair as the result of heated passion.
In the circumstances it cannot be said that the accused who were present in front of their hut formed an unlawful assembly. An assembly of five or more persons is designed as unlawful assembly if the common object of the persons composing that assembly is to do any of the acts mentioned in the five clauses of Section 141, Indian Penal Code.
According to the explanation to that section, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. The facts found by the Trial Court and the High Court and the circumstances of the case do not show that the accused formed a common object to do any of the acts mentioned in five clauses of Section 141, I.P.C. According to clause (4) of Section 141, an assembly of five and more persons would be unlawful if the common object of the persons composing that assembly is to enforce any right or supposed right by means of criminal force or show of criminal force.
This clause cannot be of much avail because it cannot be said that the common object of the accused was to enforce any right or supposed right by means of criminal force or show of criminal force. No party attacked the members of the opposite party at the commencement of the occurrence.
There was only at that stage remonstrance and counter-remonstrance. Someone then started the fight, it could not definitely be determined as to which of the two parties struck the first blow. The circumstances of the case show that the lathis were then wielded by the accused other than the first accused, not with a view to enforce any right or supposed right in respect of the water channel but because of the fact that a fight had started and the complainant’s party was found to be armed.
As there was no premeditation and the occurrence was an ended affair, each of the accused should be held liable for the individual act and not be vicariously liable for the acts of others.
Under Section 149, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the facts whether the other members knew before hand that offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour at or before the scene of action.