Section 149 of Indian Penal Code, 1860 – Explained!

This section is a very important provision with regard to group liability. It is also known as laying down a principle of joint or vicarious or constructive criminal responsibility. It says that whenever any member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, or any such offence is committed by any member of that assembly about which the members of the assembly had knowledge that such offence was likely to be committed in prosecution of the common object of that assembly, every person who was a member of such assembly at the time of commission of the offence is guilty of that offence.

In other words, there are two kinds of cases covered under this section. The first part holds every member of an unlawful assembly guilty of any offence which has been committed by any member of such assembly in prosecution of the common object of the assembly.

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The second part holds every member of such assembly guilty of any offence which the members of such assembly knew to be likely to be committed in prosecution of the common object of the assembly. The basis of the constructive guilty under this section is the membership of an unlawful assembly.

In prosecution of ‘common object’ means ‘in order to attain the common object’. Effect of section 149 may be different on different members of the same assembly. Common object is determined keeping in view nature of the assembly, arms carried by members and behaviour of members at or near the scene of incident. It is not necessary in all cases that the same must be translated into action or be successful.

Offence

The word ‘offence’ has been defined in section 40 of the Code according to which 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. Since section 149 has not been ‘mentioned’ in clauses 2 and 3 of section 40, it would seem that the word ‘offence’ under section 149 of the Code denotes a thing made punishable by the Indian Penal Code and it does not include offences under a special Act.

The Lahore High Court and Patna High Court have adopted this view and have held that section 149 does not apply to offences under the Indian Railways Act and the Defence of India Rules, 1939 respectively. The Calcutta High Court, on the other hand, holds the view that ’offence’ under section 149 means a thing punishable under the Indian Penal Code, or under any special or local law, if punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine, a language used in clause 3 of section 40 but wherein it has been clearly stated that this meaning of the word ‘offence’ is only in sections mentioned in that clause and which does not mention section 149 of the Code.

Difference between the two parts of the section

Outwardly, it seems that both parts of the section are almost similar, and any act falling under the first part would almost necessarily fall within the latter part. But that is not true. For instance, an unlawful assembly has the common object of committing theft in an office in the night. While its members being in the process of committing theft, the watchman comes in and they pounce upon him and give him a thorough beating by fists.

Here the members may be held liable for the theft on the basis of the first part because their common object was to commit that offence, while they may all be held liable for inflicting criminal force and causing simple hurt to the watchman on the basis of the second part as they being aware of the fact that a watchman guards the office knew that in case he intervened, offence of criminal force and simple hurt were likely to be committed in prosecution of the common object of the assembly.

The expression ‘in prosecution’ in the first part does not mean ‘during the prosecution’ because had it been so, then the second part would have been unnecessary. In order to fall within the first part an offence must be immediately connected with the common object by virtue of the common object. An offence will fall within the latter part if members of the assembly, by any reason, knew beforehand that it was likely to be committed in prosecution of the common object, though not knit thereto by the nature of the object itself.

The Supreme Court has held, that the expression in prosecution of common object has to be strictly construed as equivalent to ‘in order to attain the common object.’ The word ‘knew’ used in the second part of section 149 implies something more than possibility and it cannot bear the sense of might have known’. Offence committed in prosecution of common object would generally be the offence which members of the unlawful assembly knew to be likely to be committed in prosecution of the common object.

In Bhargavan v. State of Kerala the Supreme Court reiterated that the expression ‘in prosecution of the common object’ in section 149 is to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only upto a particular stage and not thereafter.

In Charan Singh v. State of Uttar Pradesh, the Supreme Court observed that though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word ‘knew’ used in the second part 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 assembly knew to be likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true. There may be cases which would come within the second part but not within the first part.

In State of Punjab v. Sanjiv Kumar the Supreme Court observed that the word ‘object’ in section 141 means the purpose or design and in order to make it ‘common’, it must be shared by all. All members of the unlawful assembly should be aware of it and concur in it. It may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members 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 prosecution of common object’ appearing in section 149 have to be strictly construed, as equivalent to ‘in order to attain the common object’. If must be immediately connected with the common object by virtue of the nature of the object.

There must be community of object and the object may exist only upto a particular stage and not thereafter. Members of an unlawful assembly may have community of object upto a 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 prosecution of their common object may vary not only according 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 may be different on different members of the same assembly.

Common object is different from common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and they act as an assembly to achieve that object.

The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly.

What the common object of the assembly is at a particular stage of the incident is essentially a question of fact to be determined keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.

The word ‘knew’ used in the second limb 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 knew was likely to be committed in prosecution of the common object.

That, however, does not make the converse 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 cannot be ignored or obliterated.

Where members split into groups

Where the members of an unlawful assembly split themselves into groups and commit offences in prosecution of the common object of the assembly, they are guilty of the offences caused. In Vithal Bhimashah Koli v. State, the assembly had split itself into smaller groups with a view to avoid attention, and they attacked the deceased at various stages within a very short interval of time, and there came one point of time where all of them participated in the assault simultaneously, and they also took away the body of the deceased together.

The Supreme Court held that they had acted in prosecution of the common object of the assembly, and even if they might have come there separately without prior arrangement, their common object would have been held to have developed instantly. But since the state did not appeal against the acquittal of some of them, the Supreme Court had to decide the appeal on the basis of individual liability.

Nexus between the common object and the act committed

The prosecution must establish that there was a nexus between the common object of an unlawful assembly and the act committed by its members. In Allauddin Mian v. State, two members of an unlawful assembly went after a person with the common object of causing his death, who ran into a room to fetch a spear to defend himself.

His wife did not allow him to go out as a result of which the attackers, in frustration, fired at the two daughters of their suspected victim playing outside and killed them. The Supreme Court held only these two accused persons guilty of the murders, and acquitted rest of the members of the assembly as they had no common object to kill the ultimate victims, nor was the same incidental to their object.

Earlier the Supreme Court had held in Ram Bilas Singh v. State, that for vicarious convictions under section 34 or 149 of the Code, it was necessary to prove overt acts on the parts of the accused person committed in furtherance of the common intention, or in prosecution of the common object of the unlawful assembly, as the case may be.

But the Supreme Court also held in Lalji v. State, that if precise participation of the accused persons could not be proved because of absence of evidence, that in itself was not sufficient to mean acquittal of the members. The Patna High Court has followed these rulings while holding in Nagina Sharma v. State, that persons in the form of an armed gang, who came for capturing a booth during the polls and prevent voters from casting franchise, were liable for the eight deaths caused by them in the process.

In Mukteshwar Rai v. State, the accused were members of an unlawful assembly. Their common object, however, was proved to be setting houses on fire and not committing murder. It was held that they were guilty under section 426/149 and not under section 302/149.

In Chandubhai Malubliai Parmar v. State of Gujarat,1 there were communal riots in which the accused armed with guns were alleged to have shot dead two persons of the deceased party while they were running towards their houses. A mob of over one hundred persons chasing the deceased was alleged to have inflicted injuries by spears and lathis on the deceased after being hit by gun shot.

The members of the unlawful assembly chased the rival community up to their locality and started setting their houses on fire while others caused death of four persons. The Supreme Court held that the accused armed with gun were liable to be convicted for the murders while those engaged in burning houses could not be said to have shared common object or common intention of causing murder by virtue of section 149 or 34 of the Code.

In Slate of Maharashtra v. Kashirao the Supreme Court has ruled that it cannot be laid down as a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an 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 ‘common’ it must be shared by all. In other words, the object should be common to the persons who compose the assembly, i.e., they should all be aware of it and concur in it.

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 stage by all or a few members of the association 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 prosecution of the common object as appearing in section 149 has to be strictly construed as equivalent to ‘in order to attain the common object’.

It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only upto a particular stage and not thereafter. Members of an unlawful assembly may have community of object upto a 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 prosecution of their common object may vary not only according 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 may be different on different members of the same association.

In M/s. Siyaram v. State of Madhya Pradesh, the Supreme Court held that mere presence of in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. The word ‘object’ means the purpose or design. In order to make it common, it must be shared by all. It may be formed at any stage by all or a few members and other members may just join or adopt if.

The words ‘in prosecution of common object’ have to be strictly construed as equivalent to ‘in order to attain the common object’. Members may have community of object up to a certain point beyond which they may differ in their object. Common object may be gathered from the course of conduct adopted by members. Common object may not be from the beginning. The time of forming it is not material.

Withdrawing from the assembly before an act

There have been cases where one or more members of an unlawful assembly have withdrawn from the assembly before a particular act was done by other members of the assembly. In such cases the courts have held that a member is responsible only up to the time he can be said to remain involved in the doing of an act and his liability comes to an end once he withdraws himself, whether willingly or because of any other reason.

One group of people waylaid another group and a fighting ensued between the two in the course of which a person belonging to the first group was injured. He withdrew himself to one side taking no further part in the fighting. Sometime thereafter, a person belonging to the other group was killed. It was held that the injured person who had withdrawn earlier could not be held guilty of the subsequent murder even though he was liable for everything that had taken place before he withdrew.

The Supreme Court also felt the same way in Nawab Ali v. State, in which it set aside the conviction of an accused who had withdrawn from a house before a murder was committed there in prosecution of the common object of the unlawful assembly of which initially he had been a member. The view was reiterated by the Supreme Court in Musakhan v. State, wherein it was held that once the accused had left the place of crime and had thereby ceased to be a member of the unlawful assembly, he could not be held guilty of the subsequent murder committed by other members.

In Bhimrao v. State of Maharashtra, all accused persons along with some others formed an unlawful assembly with the common object of committing the murder of the victim and with that object they went inside his house. At that place some members of the assembly entered his house and assaulted him causing grievous injuries consequent to which he died about six days later. While the victim was being assaulted inside the house the appellants stood outside and did not take part in the assault nor was any grievous injury caused to any one by them.

The Supreme Court held that the accused persons standing outside the house of the victim could not be knowing what transpired inside the house. The act of those members of the original unlawful assembly who had entered the house could not be attributed to members who stood outside. Those members who did not share the common object and stood outside were thus liable to be convicted under section 352/149 and not under section 326/149 of the Code.

Persons joining after the act is over

In Shanta v. State, a fight had already taken place between two groups of people in which three persons had died and some others were injured. The accused appellants entered the scene thereafter, and on being attacked by the other group, resisted the same. The Supreme Court held that they could not be held liable for the murders which had already been committed before they joined. The reasons may be similar in both the above-discussed situations, that is to say, where someone withdraws before an act is done and where someone joins after the act has already been completed.

Sudden fight

Public peace is disturbed quite often when two or more groups of people suddenly start fighting with each other. The court have successfully analysed such situations adequately many a time. In Lalji v. State, a sudden fight ensued between two groups of people following an altercation between them as a result of which one person was killed.

The evidence was not clear to the effect that the appellants had formed themselves into an unlawful assembly of which the common object was to cause death. The Supreme Court refused to apply section 149 of the Code and held that each person could be held individually liable for the offence which he had committed.

Similarly, in another case of a free fight between two groups, it was not clear as to whether the accused persons were the aggressors, nor was there any evidence of individual acts of assault by them. The Supreme Court refused to apply sections 147 and 148, and also set aside the convictions based on section 149 of the Code.

Where two opposing groups indulged in a free fight in course of a melee resulting into injuries to members of both groups and death of two, section 149 of the Code cannot be applied and guilt could be fixed only on the basis of individual acts committed by them.

Proof of specific acts of members is not necessary

Where the common object of an unlawful assembly is established, it is not necessary to prove the specific overt acts attributed to each member, and all would be liable for the offence committed in prosecution of the common object.

In Mahmood v. State of Uttar Pradesh? the Supreme Court observed that specific overt act of the accused need not be established as membership of unlawful assembly is already established. Thus, no interference with the conviction of the accused under sections 302/149 was required.

Where act done is different from the common object

The courts have to carefully analyse the evidence to conclude as to whether the acts done by members of an unlawful assembly are in fact in prosecution of the common object of the assembly, or not. Where a group of persons went together to eject the person in possession of a disputed land, and on stiff resistance being offered by him, a member fired at him causing his death, it was held that other members of the unlawful assembly were not guilty of murder as the act of firing was neither in prosecution of the common object of the assembly nor did the members know the same to be likely to be committed in prosecution of the common object.

A gang was preparing to commit dacoity in a village. Two members of the gang were chased and caught by the villagers. A member of the gang fired at these villagers killing one of them. It was held that the two members who were chased and caught could not be held guilty of murder because there could not be any common object between these two and the rest after the two were separated from the others.

A crowd armed with deadly weapons broke open the doors and windows of a police wireless station. A policeman was also attacked in the process but the evidence could not establish as to who had inflicted injuries on him. The Supreme Court ruled that all accused persons only shared the common object of committing lurking house-trespass and no other offence, and they were thus guilty under sections 455 and 149 of the Code.

The common object of an unlawful assembly was to beat a person. One member, however, pulled out a knife and stabbed him as a result of which he died. It was held by the Supreme Court that all members could not be held liable for the murder as common object to inflict fatal injuries was neither present at the initial stage nor at the stage of execution.

A member of an unlawful assembly gave another member a bullet who fired and killed the deceased. The Supreme Court held that the common object of the assembly being to voluntarily cause grievous hurt, all members were guilty only of the same under section 325 read with section 149 of the Code and not of the murder.

Caste conflict

Caste occupies an important place in the life of an average Indian, and that is one of the important reasons of cases of caste conflict which come up before the courts. The law applied in these cases is no different from other.

In Mehtab Singh v. Slate, some high caste persons were not on good terms with certain low caste people. On the day of the occurrence twenty three high caste persons including the appellants went to the locality of the low caste persons, shouted at them to the effect that they would finally settle the score, abused and pelted stones at them.

When the low caste persons ran for safety some were dragged out, beaten and one of them died. The Supreme Court held that the common object of the assembly was to attack and cause injuries initially, but it changed later and the members knew that murder was likely to be committed in prosecution of it, and consequently all were guilty of murder.

In Ranbir Yadav v. State of Bihar, a mob of about 500-600 people belonging to same community and residents of different villages attacked a neighbouring village to exterminate ‘Bind’ community of that village. The accused persons came on horses armed with firearms and led the mob along with others. They were amongst the rioters who chased the villagers and committed murders at the bank of the river.

The High Court concluded that the accused shared common object of the unlawful assembly to commit offences of loot, arson and murder and causing disappearance of evidence of murder, and convicted them. The Supreme Court ruled that there was no cause for interference with the judgment. In State of U.P. v. Dan Singh, a marriage party of a scheduled caste family was passing through another village when it was asked by the villagers to take the bride on foot in front of a temple which was rejected.

The villagers assaulted the marriage party by sticks and stones and six of its members were burnt, five of them having been locked inside the house of the only scheduled caste resident of the village whose house was also burnt. Eight others were pursued, mercilessly beaten and killed. The Supreme Court held the accused persons identified by all the four eye-witnesses were liable to be convicted under sections 147, 302/149, 436/149, 323/149 and 307/149 of the Code.

In Krishna Mochi v. State of Bihar, the accused persons arrived at the place of occurrence, entered the houses by breaking open the doors, forcibly took inmates of the houses after tying their hands to a particular place and massacred them by slitting their throats. All such acts were done pursuant to a conspiracy hatched up by them to eliminate members of a particular community in the village. Charge-sheet was prepared against 119 persons but ultimately thirteen accused persons were proceeded against under section 302/149 of the Code and under section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

The Supreme Court held that merely because some accused persons were not said to have assaulted either any of the deceased or injured persons, it could not be inferred that they had no complicity with the crime, all the more so as they were heavily armed with firearms and bombs etc. but did not use the same. The accused militants were in police uniform and they killed thirty-five persons in all while several others were injured. Since this was a rarest of rare case, death sentence was the proper sentence.

Clear evidence

When the evidence about the common object of an unlawful assembly along with the act in prosecution of the same is clear, there is not much difficulty in giving a decision. Where the common object of an assembly was to encroach upon the land of a widow and kill anyone who resisted the same, it was held by the Supreme Court that when as many as four persons were killed and one seriously injured in the process, there was no doubt that all members of the assembly were guilty of the same under sections 302 and 149, that sections 147 and 148 of the Code also applied.

In a case of long standing enmity a group of armed people went and attacked others. The complainant snatched a spear from one of the attackers and defended causing injuries on some. Two of the attackers then fired some shots killing one person. The Supreme Court confirmed the convictions for murder, attempted murder and voluntarily causing hurt read with sections 148 and 149 of the Code.

In a similar case, there was long standing rivalry between two groups. The deceased was given merciless beating and was done to death. One accused inflicted injuries by an axe, the other by a spear and the third by a stick. The absconded accused persons were later arrested from the house of one of the accused who was the leader of the rival faction against the deceased. It was held that there was no infirmity in recording convictions against the three accused persons.

The accused appellants had invited the deceased party to come at their residence to peacefully settle their difference over talks. When they reached there, the appellants attacked them killing two of them and seriously injuring two others. The Supreme Court held the appellants guilty of the murders and attempted murder by virtue of section 149 of the Code.

In Haricharan v. State of Rajasthan, the accused persons went to the place of incident armed with weapons. They stopped the bus in which the deceased was travelling, put a gun on the chest of the driver and threatened to shoot if he drove ahead. They caught hold of the deceased and tried to drag him out. One of the accused fired two shots at the deceased and the other accused assaulted him by other weapons. The Supreme Court held all the accused guilty under section 302/149 of the Code.

In Rajinder v. State of Haryana, the accused persons armed with lathis and one armed with a gun came to the deceased’s shop, abused him and initially beat him with lathis and stones. Then the accused with the gun fired two shots killing the deceased. They all fled together in a jeep. The Supreme Court held that their object clearly was to cause death and all were thus guilty under sections 302/149.

In Mangal Singh v. State of Bihar, the accused party fired at the deceased party after exchange of words in a land dispute matter. Many members of the accused party were armed with firearms. Two members of the accused party were, however, not armed. They had not committed any overt act. Eye witnesses did not say that any exhortation was given by them. The Supreme Court held that they cannot be said to have shared the common object of the unlawful assembly and so cannot be convicted. Conviction of all others, however, was held proper.

Insufficient evidence

The accused persons, charged along with others, for having committed murder of a sub-inspector of police, were acquitted by the High Court. Three others pleaded before the Supreme Court to be acquitted likewise. The evidence showed that the appellant had disarmed the deceased sub-inspector but had not used that revolver against his adversaries and, in fact, had surrendered the arm to the police at the earliest opportunity.

The Supreme Court observed that it seemed that the appellant had disarmed the sub-inspector with a view to avoid bloodshed, and since the evidence did not implicate the two appellants clearly, these three persons could not be held guilty of murder.

A married lady wished to leave the home of her in-laws and asked her relatives to come and take her. Three of her relatives along with some other accused persons came to her. When her father-in-law and some other villagers resisted the move, there was an altercation between the two parties. One of the accused fired three shots injuring three persons out of whom one died later.

The deceased who was injured at that time was picked up and put in a tractor in which the firer of the shots and some other accused along with the married lady all drove away, while the other accused followed. The Supreme Court held that the evidence was not sufficient to establish a common object of murder on the part of the accused. Consequently, only firer of the shots would be liable individually for his acts and all others would have to be held not guilty.

Not using arms

In Balkar Singh v. State, some accused persons armed with firearms and some with deadly weapons participated in the incident in which four persons were killed and several others were injured. It was held that sections 34 and 149 were squarely attracted and the accused armed with firearms could not be absolved on the ground that they had not used them.

Occurrence at two places

In Jairam v. State, one of the accused persons was armed with a gun. The incident took place at two places, the first near the house where the deceased and his brother received gunshots, and the second while the deceased was being taken to the hospital in a cart. The F.I.R. and other evidence were not at variance. All injuries except gunshot wounds were proved to be post mortem. It was held that there existed no unlawful assembly and the accused using the gun was alone guilty of murder.

Inference of knowledge

According to the second part of the section, if members of an unlawful assembly knew that an offence was likely to be committed in prosecution of the common object of the assembly, every member is guilty of that offence. The question is as to how would a court infer this knowledge.

The Supreme Court has observed in Santosh v. State, that this knowledge could be inferred from the nature of the acts done by other members of the assembly in presence of the accused member who saw these or knew about these and even then continued to remain a member of the assembly.

Where several person are armed with lathis and one with a hatchet, and all agreed that if there was a need the arms would be used, it could be said that the members were prepared to use force of violence and if some deaths or bodily injuries resulted, it could be said that they knew the same to be likely to be committed in prosecution of the common object of the assembly.

Where a group of persons, two of them being armed with pistols, had the common object of abducting some woman, and one person was shot in prosecution. Pistols might be used, and all could be said to have knowledge that murder was likely to be committed in prosecution of the common object.

In Mathew v. State, the police arrested two persons and placed them in police lock­up. Twenty nine accused persons, some of them armed with deadly weapons, attacked the police station in the night with a view to free these two persons. Two constables died in the attack. It was held by the Supreme Court that members of the unlawful assembly knew that murder was likely to be committed in prosecution of the common object of the assembly and, therefore, all were guilty of the two murders.

In Tanaji Govind Misal v. State of Maharashtra, the evidence proved that the motive of the accused party was to remove ‘babul’ trees from the field at any cost and cause such injury as may be necessary for that purpose. Some of the accused, however, started assaulting immediately after reaching the spot.

It was held by the Supreme Court that the other accused persons could not be conclusively said to have known that murders were likely to be committed in prosecution of their common object so as to attract the latter part of section 149. Such accused would thus be guilty under sections 326/149 while such accused who acted beyond common object were liable to be convicted under sections 302/34 of the Code.

In Rameshwar Pandey v. State of Bihar, all members of an unlawful assembly had come armed with firearms with a view to commit extortion. The Supreme Court held that all members must be attributed the knowledge that it was likely that murder may be committed in prosecution of that object.

Applicability of section 149 or 34 with section 397

The Rajasthan High Court is of the view that section 149 or 34 of the Code cannot be applied to a case covered by section 397 of the Code because the individual act of an offender covered by section 397 does not make fellow criminals responsible under that section.

In Boddapati Venkatramaiah v. State of Andhra Pradesh, the Andhra Pradesh High Court ruled that where accused persons are charged for different offences including offences under sections 148 and 149 and where the trial Court has acquitted him under section 148 but convicted him under section 149, the conviction under section 149 is illegal.

Applicability of the principle of issue estoppel

In Bhoor Singh v. State, the Supreme Court was seized of the question of applicability of the principle of issue estoppel to the case of murder committed in prosecution of the common object of an unlawful assembly. Some accused persons were being prosecuted under section 302 read with section 149 of the Code for committing a murder in prosecution of the common object of an unlawful assembly.

A separate case under the Arms Act for possession of a gun, the murder weapon, was pending against one of these accused persons, in which he was acquitted and against which decision no appeal was preferred. The accused argued that the principle of issue estoppel should be applied under which once he had been finally acquitted of the charge of possession of a gun, he could not be held guilty of causing murder by a gun in the main case.

The Supreme Court held that the plea was not acceptable and the charge under sections 302 and 149 of the Code against all the accused persons did not fail because the murder case had been decided first and the case under the Arms Act later, and in addition to that, the latter decision was perhaps given on an erroneous ground that intention to use the gun or allow its use of any unlawful object had not been proved. In view of these, the principle of issue estoppel was held to be not applicable.

Absence of Children Act

A child of fifteen years of age was convicted under section 326 read with section 149 of the Code. The Supreme Court felt disappointed that a Children Act did not exist in Bihar, and ordered that the child be kept in an open prison, or in a model prison, or any other prison where he could not come in contact with hardened criminals.

Charge

It has been observed by the Supreme Court that when an accused is being charged under section 149, there is no obligation to charge him under section 143 or section 147 also. It is, however, better to charge him also under section 147 or 148, as the case may be, because that would ensure that even if he gets an acquittal from the court under section 149, he does not go scot-free.

Conviction of less than five persons

Before applying section 149 of the Code, the Court must ensure that there were at least five persons sharing a common object. But this does not mean that a minimum of five persons must always be convicted whenever this section is applied. There may be following five situations in this regard:

1. Where the total number of participants in the crime is proved beyond doubt and also the participation of the less than five persons being convicted is proved, their conviction is legal. For instance, if the prosecution proves that a total of seven persons had committed the crime out of whom A, Â and Ñ were definitely there, then conviction of A, Â and Ñ is legal.

2. Where the total number of participants is not proved beyond doubt but participation of the less than five persons being convicted is proved, their conviction is probably not good. For instance, where the prosecution fails to prove the total number of participants in the crime but proves that A, Â and Ñ were definitely there, then probably conviction of A, Â and Ñ will not be legal because the prosecution has not been able to establish as to how many persons shared the common object. There may, however, be a difference of opinion in this regard because some people may argue that the prosecution has proved that there were at least five persons in the assembly out of whom A, Â and Ñ were definitely there and, therefore, their conviction should be legal.

3. Where the case of the prosecution is that all the participants are named and only they, and no others, have participated in the crime and the less than five persons being convicted were definitely present even though who were the others with them is not proved, the conviction of these less than five persons is illegal and they have to be acquitted along with all others. For instance, if the prosecution insists that À, Â, C, D, E, F and G had committed the crime out of whom participation of A, Â and Ñ is proved beyond doubt but participation of D, E, F and G is not proved beyond doubt, the conviction of A, Â and Ñ is illegal and all the seven have to be acquitted. The reason for this is that the prosecution insists that these seven persons only, and no others, had participated in the crime but fails to prove the case against D, E, F and G, meaning thereby the prosecution fails to prove the existence of an unlawful assembly consisting of A, Â and Ñ on the one hand, and the other four on the other, and thus conviction of A, Â and Ñ is bad.

4. Where the less than five persons being convicted are not public servants but the others with them are public servants against whom sanction for prosecution has not been given by the appropriate authority and as such no case has begun against them. In such a case, conviction of these less than five persons is legal. For instance, A, Â and C, who are not public servants, are being prosecuted along with D, E, F and G, who all are public servants. Since sanction for prosecution of D, E, F and G has not been given, no case in fact is pending against them. Here conviction of A, Â and Ñ is legal.

5. If the prosecution has proved the participation of the less than five persons being convicted that they along with the others had participated in the crime but the others die during pendency of the case, the conviction of these less than five persons is legal. For instance, if the prosecution has proved the participation of A, Â and Ñ beyond doubt and also that they along with D, E, F and G had participated in the crime, but D, E, F and G die during the pendency of the case, the conviction of A, Â and Ñ is legal.

If the evidence establishes with certainty that there were at least five persons sharing a common object amongst themselves, though the identity of some of them was doubtful, conviction of the rest is good in law. But if five or more named persons have been charged with committing an offence in prosecution of the common object of an unlawful assembly, and some of them are acquitted reducing the number of the convicted persons to less than five, such a conviction of less than five persons is bad in law.

In Amar Singh v. State, seven persons were charged with committing an offence in prosecution of the common object of the unlawful assembly, and three of them were acquitted. Neither an appeal was preferred against their acquittal nor did the prosecution argue the involvement of five or more persons, known or unknown, in the crime. The Supreme Court held that none could be convicted under these circumstances.

In K. Nagamalles Ware Rao v. State, all alleged members of an unlawful assembly except four were acquitted, and the evidence against these four was also not reliable in the sense that no overt acts on their part were proved. The Supreme Court quashed their conviction.

In Ram Tahal v. State, charges of rioting with deadly weapons and murder in prosecution of the common object of an unlawful assembly were preferred against six persons out of whom two were acquitted. The Supreme Court set aside the conviction of the other four also holding that sections 148 and 149 were not applicable. It, however, said that they could be convicted of murder in furtherance of common intention if the evidence so warranted.

In Jharu v. State, and Khuji v. State, respectively, one single individual accused member of an unlawful assembly was convicted while rest of the members were acquitted. On the other hand, in Zahoor v. State, the conviction of two persons who had participated in the crime was held to be valid while the other members of the unlawful assembly who did not participate were acquitted.

In Golla Pullana v. State of A.P. seven persons who had participated in an assault were convicted by the trial court. The High Court acquitted four of them while one of the remaining three died during pendency of the appeal. The High Court, despite absence of appeal against the acquitted accused, found that acquittal of two by the trial court was wrong. The Supreme Court held that the High Court could convict the remaining two accused on the basis of sections 300/149 since there were more than five persons out of the named accused who had participated in the assault on the deceased.

The Supreme Court has ruled in Dhupa Chamar v. State of Bihar, that section 149 would not apply when three out of seven members of an unlawful assembly have been acquitted and the case is not that some other persons have also participated.

In Anthony D’Souza v. State of Karnataka, all the five accused persons were proved to have participated in a murder though out of them the trial of one juvenile accused was split. The Karnataka High Court converted their conviction from under sections 396/149 to one under sections 396/34. The Supreme Court ruled that this was not proper.

In Kallu v. State of Madhya Pradesh, twenty seven persons were put on trial for assaulting the complainant with various weapons with the common object of causing injuries. Evidence showed that more than five persons took part in the incident. Only four of them were, however, convicted.

The Supreme Court held that this does not mean that there was no unlawful assembly. The mere fact that several accused were acquitted does not enable the four accused persons who were found guilty to contend that section 149 is not applicable.

Distinction between sections 34 and 149

Section 34 is applicable when an offence is committed by several persons ‘in furtherance of common intention of all’ whereas section 149 applies when an offence is committed by any member of an unlawful assembly ‘in prosecution of the common object’ of that assembly, or such as the members of the assembly knew to be likely to be committed ‘in prosecution of that object.

The former does not necessitate the existence of an unlawful assembly, while under the latter there must be an unlawful assembly. Section 34 presupposes the existence of at least two persons even though it is not necessary that at least two should always be convicted, whereas under section 149 there must exist at least five persons even though it is not necessary that a minimum of five persons must always be convicted under this section.

Meeting of minds and consequently a pre-arranged plan or a prior concert is always a requirement under the former, but that is not necessary under section 149. Active participation of all must be proved under section 34, but liability under the latter arises by virtue of being a member of an unlawful assembly. Section 34 is merely a principle of joint liability, but section 149 besides being a principle of joint liability also creates a specific offence even though generally the punishment must depend on the offence of which the offender is by that section made guilty. The appropriate penal section is, therefore, generally read with it.

The offence under section 149 of the Code is non-compoundable.

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