LexCHANDA AND ORS. versus STATE OF U.P. AND ANR.
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CHANDA AND ORS. A v. STATE OF U.P. AND ANR. APRIL 29, 2004 [DORAISWAMY RAJU AND ARIJITPASAYAT, JJ.) Penal Code, 1860: Section 149-Prosecution of common object-Liability of members of an unlawful assembly-Proof in respect of-Held: Mere presence in an C unlawful assembly could not render a person liable unless there was common object, that he was actuated by it and that it, was one of those set out in S. 141 /PC-However, proof of an overt act not necessary-But common object once formed need not continue to be the same-The effect of S. 149 may be different on different members of the same assembly. D Section 149-Definite roles-Not ascribed to each accused-Effect of- Held: It is not necessary to ascribe definite roles to each accused to attract s. 149. Section 149-Applicabi/ity of-Eight accused persons attacked the E deceased--C and S held pistols-C fired a shot at deceased but it did not hit him-But the shot fired by S was fatal-Trial court acquitted Sas his father's name was described wrongly and convicted other accused perso .. ·s- High Court altered the conviction to one under S. 304 Part I read with S. 149-Effect of-Held: The evidence on record clearly established that there was an unlawful assembly whose common object was to kill the deceased- F -That being so acquittal of S did not wipe out application of S. 149- Conviction and sentence upheld "Common object" and "common intention "-Distinction between- Explained. Words and Phrases: "Common object "-Meaning of-In the context of S. 141 of the Penal Code, 1860. 885 G H 886 SUPREME COURT REPORTS (2004] SUPP. I S.C.R. A "Jn prosecution of common object" and "knew"-Meaning of-In the context of S.149 of the Penal Code, 1860. According to the prosecution, eight persons had caused the death of the deceased. Appellants-accused C and S, were holding pistols. C had fired a shot at the deceased, which did not hit him. S fired a shot at the deceased, B which proved fatal. c The trial court convicted the appellants under Section 302 read with Section 149 of the Penal Code, 1860. However, S was acquitted as there was a mistake in describing his father's nam<!. Accused Z was acquitted because he was a crippled person and in the dying declaration of the deceased no role was ascribed to him. Similar was the position as far as accused H was concerned. In appeal, the High Court altered the conviction so far as the accused persons who were found guilty by the Trial Court, to one under Section 304 D Part I IPC read with Section 149. Custodial sentence of 10 years was imposed. Conviction in terms of Section 307 read with Section 149 was maintained. Hence the appeal. On behalf of the appellant-accused, it was contended that since S who fired the fatal shot at the deceased, was acquitted, Section 149 IPC could not E have any application; that definite roles had not been attributed to the accused persons and, therefore, the courts below were not justified in holding the accused person guilty. Dismissing the appeal, the Court F HELD: 1.1. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and their object is one of those set out in Section 141 of the Penal Code, 1860. Where common object of an unlawful assembly is not proved, the accused person cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or G more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. [892-C-D) t.2. 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 H be common to the persons, who compose the assembly, that is to say, they CHANDA v.STATE OF U.P. 887 should all be aware of it. A "common object" is different from a "common A intention" as it does not require a prior concert and a common meeting of minds before the attack. (892-E; 893-A) 1.3. 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 assembly and the other members may just join B 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' as app
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