LexRAM TAHAL & ORS. versus STATE OF U.P.
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423·
RAM TAHAL & ORS.
v.
STATE OF U.P.
November 18, 1971
[P. JAGANMOHAN REDDY AND D. G. PALE!(AR, JJ.J
Indian Penal Code (Act, 45 of 1860), ss. 34 and 149-Six persons
named as the only members of unlawful assembly-Two acquiued-
Whether others can be convicted under s. 149-Conviction under I. 34-
Conditions for.
Six accused were charged with the offences under ss. 148 and 302 and
307 read withs. 149 I.P.C., for having formed themselves into an Un•
lawful assembly with the common obje9t of demolishin& a thatch belong-
ing to the complainant and for causing death and injuries when resisted.
The trial court convicted them. On appeal, two of the accused were ac-
quitted and the appellants were comicted for offences under ss. 148 and·
304 and 307 r¢ad with s. 149.
On the question of the validity of the conviction,
HEW :
('!) Before s. 149, which prescribes constructive criminal
liability for members of an unlawful assembly, can be called in aid, the
court must find with certainty that there were at least five persons sharing
a co1nmon object.
It is possible in some cases that though five were un-
questionably present the identity of one or more is in doubt in which case
a conviction of the rest with the aid of s. 149 would be good.
There-
fore it is not necessary that in every case five persons must always be
con~cted before s. 149 can be applied.
But in such a case, the
court
must find with unerring certainty, that at least five persons were pri:scnt.
[426 H; 427 A-C)
In the present case. the charge definitely named the four appellants
who have been convicted, and the two who have been acquitted, a< bein~
the only members of the unlawful assembly.
Since two of the named
accused were acquitted the conviction of the other four under s. 148 and
ss. 304 and 307 read with s. 149 cannot be sustained on the charge as
framed. [427 F-Ji]
(2) The appellants, however, were guilty of offences under ss. 304
l':lrt l and 307 read with s. 34. The totality of the circumstances indi-
cated that there was a preconcerted plan and a common intention to re-
move the thatch and to attack any person who resisted. [432 E-H]
The common intention under s. 34, should be anterior in time to the
commission of the crime showing a pr~-arranged plan and prior concert.
Generally, it has to be inferred from the acts or conduct of some or all the
accused i1Dd the totality of relevant circumstances in the case, such as
the manner in which the accused arrived on the ~ccne and mounted th~
attack, the determination and concert with which injuries were caused
by one or some of them, the acts done by others to assist those causing the
iniuries, and the concerted conduct subsequent to the commission of the
offence as for i!lstance, that all of them left the scene of the incident
together. [428 A-El
Dalip Singh &: Ors. v. 611/Je of Purjab [1954] S.C.R. 145 Moht1n
Singh v. State of Pu11jab, I191i.2J ~.upp. l S.C.R. 848 and Krishna Govi11t!
Patil v. State of Maharashtra, {19641 1 S.C.R. 678, followed.
424
SUPREME COURT REPORTS
[19'/2] 2 S.C.R.
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal
No. 27 of 1969.
Appeal by special leave from the judgmelll and order dated
May 22, 1968 of the Allahabad High Court in Criminal Appeal
No. 2636 of 1967 connected with Criminal Appeal No. 260'2
A
-0f 1967.
B
D. P. Singh, V. J. Francis and Suresh Prasad Singh, for th·~
.appellants.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
P. Jnganmohan Reddy, J. Six accused were charged with
·offences under Section 302, read with Section 149, Section 307
read with 149 and Section 148 of the Indian Penal Code for
.having formed themselves into an unlawful assembly with the
·common object of demolishing the thatch of one Ram Badal,
<Complainant P.W. 1 on 30th November 1967 at about 9.30
a.m. at Mohalla Afawalpur, Qasba Utraula, District Gonda and
for having committed the murder of Ram Harakh alias Harkhey
and Jagga, the brother and mother-in-law respectively of said
Ram Badal.
It appears that Ram Badal had applied on 2-1-66
to the Notified Area Committee, Utraula for permission to con-
struct a thatch on the parti land.
Ram Taha!, accused filed an
objection petition on 6-1-66 objecting to the construction of the
thatch on the ground that Ram Badal was constructing it on a
public highway, but when these objections were being enquired
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