LexDAYA KISHAN versus STATE OF HARYANA
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A B c [2010] 4 S.C.R. 854 DAYA KISHAN v. STATE OF HARYANA (Criminal Appeal No. 879 of 2007) APRIL 22, 2010 [J.M. PANCHAL AND DEEPAK VERMA, JJ.] Penal Code, 1860: ss. 3021149, 3071149, 3231149 ands. 148 - Conviction under - Altercation between S-son of informant and K-son of accused - After a short while, K and four others armed with weapons, went to the scene of incident - Brother of K inflicted fatal gun shot injuries to R-nephew of informant and injuries D to. S - Accused and two others caused injuries to informant - Conviction and sentence of accused uls 3021149, 3071149, 3231149 ands. 148 by courts below - Three other accused declared proclaimed offenders - On appeal held: No altercation or quarrel took place between R and K nor any E enmity between accused and R - Accused did not share common object of one of the members of the unlawful assembly to cause death of R - No knowledge can be attributed to him as regard the likelihood of commission of murder of R - Thus, conviction u/s. 3021149 not sustainable F G and set aside - Conviction uls. 3071149 and ss. 3231149 and 148 upheld since finding of courts below based on appreciation of reliable evidence. s. 149 - Nature and scope of - Applicability of - Explained. According to the prosecution case, there was a land dispute between BR-informant and the appellant and the same was settled. The informant's case was that appellant's family were still bearing a grudge against his H 854 DAYA KISHAN v. STATE OF HARYANA 855 family. On the fateful day, altercation ensued between S- A son of informant and K-son of appellant. K came back and after a short while again went to the scene of incident with his father-appellant, brother P and two others. They all were armed with weapons. They raised lalkara that S would not be spared by them. P fired a gun shot resulting B in death of R. P also fired a gunshot at S, resulting in injuries to S. The appellant along with other two inflicted blows on the informant. The informant also inflicted injury to the appellant in self-defence. The trial court convicted the appellant u/s. 302/149 IPC and sentenced c to R.I. for life for causing death of R; u/s. 307/149 IPC and sentenced to R.I. for seven years for attempting to commit murder of injured S; and u/s. 323/149 IPC with R.I. for one year; and u/s. 148 with RI for two years. Accused RJ was also convicted. The other three accused were o declared proclaimed offenders. Hence the appeal. Partly allowing the appeal, the Court HELD: 1. Section 149 IPC creates a constructive or vicarious liability on the members of the unlawful E assembly for the unlawful acts comr11itted pursuant to the common object by any other member of that assembly. The basis of the constructive guilt u/s. 149 IPC is mere membership of the unlawful assembly, with the requisite common object or knowledge~ This Section makes a I= member of the unlawful assembly responsible as a member 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 G unlawful assembly may fasten vicariously criminal liability u/s. 149. There are two essential ingredients of s. 149, viz., (1) commission of an offence by any member of an unlawful assembly and (2) such offence must have been committed in prosecution of the common object of that H 856 SUPREME COURT REPORTS [2010) 4 S.C.R. A assembly or must be such as the members of that assembly knew to be likely to be committed. Once the court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be heltl guilty of that B offence. After such a finding, it would not be open to thl'I court to see as to who actually did the offensive act nor it would be open to the Court to require the prosecution to prove which of the members did which of the offensive acts. Whenever a court convicts any person of ari offence c With the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but that in pursuance of suGh commdti object the offence was committed. There is no manner of 0 doubt that before recording the conviction u/s. 149 IPC, the essential ingredient
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