LexRABINDRA MAHTO AND ANR. versus STATE OF JHARKHAND
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A RABINDRA MAHTO AND ANR. v. ST A TE OF JHARKHAND JANUARY 6, 2006 B [S.B. SINHA AND P.P. NAOLEKAR, JJ.] Penal Code, 1860; Section 302 r/w Section 149 and Section 323: Assault and murder-Accused attacked on members of prosecution party C causing death of two persons and injuring others-Trial Court found jive accused persons guilty of committing offence under Section 302 rlw Section 149 and two accused persons under Section 323 /PC and sentenced them accordingly-Affirmed by High Court-On appeal, held: Mere membership of an unlawful assembly could be the basis of fastening constructive guilt on the D members under Section 149 I PC provided common object of unlawful assembly shared by the members-Nature of injuries found on the deceased clearly establishes that the common object of the unlawful assembly was to do away with the deceased-Also corroborated by the evidence of eye witnesses-- There exists no reason to disbelieve the version of the witnesses-Prosecution led reliable evidence veracity of which could not be dislodged on the basis of E delay in lodging FIR and forwarding information to the Magistrate. 'Common object' and 'Common intention '-Distinction between-- Discussed. Code of Criminal Procedure, 1973; Section 157: Delay in filing FIR-- F Effect of-Discussed. According to the prosecution, on the fateful day when the deceased and others were taking rest in a field, accused persons armed with deadly weapons attacked them. Consequently, they were injured and two of them G succumbed to the injuries inflicted by the accused persons. An FIR was lodged on the next day and forwarded to the Magistrate a day after. Trial ' . Court found five accused persons guilty of committing crime under Section " 30l r/w Section 149 and two accused persons for committing offence punishable under Section 323 IPC and convicted and sentenced them accordingly. The order was affirmed by the High Court. Hence the present H ~8 ' > RABlNDRA MAHTO v. STATE OF JHARKHAND 249 appeals. It was contended by the accused-appellant that that the delay in lodging of the FIR and thereafter further delay in sending the same to A the concerned Magistrate, clearly indicates that the accused persons have been falsely implicated and on this count alone the prosecution case fails, and that the accused persons could not have been convicted for the offence B under Section 302 IPC with the aid of Section 149 of the Indian Penal Code .-, when there is no evidence of a common object of the assembly to commit murder of the deceased persons. ;.. y Respondent submitted that the common object of the assembly has to be gathered from the facts and circumstances of the case and that there C is enough evidence on record to indicate that all the accused persons had formed unlawful assembly to commit an offence of murder of the deceased persons; and that the prosecution case cannot be discarded only on the ground of delay in lodging the FIR or delay'in sending the information to the Magistrate. D Dismissing the appeals, the Court HELD: 1.1. The basis of constructive guilt under Section 149JPC is mere membership of an unlawful assembly. If the accused is a member of an unlawful assembly, the common object of which is to commit a certain E crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. (256-F-G I 1.2. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime F at the spot itself. There need not be prior meeting of the mind. It would G be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 IPC makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same H 250 SUPREME COURT REPORTS [2006] I S.C.R. A time, one has to keep in mind that mere presence
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