LexSHIVJEE SINGH AND ORS. versus STATE OF BIHAR
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A B c D E F [2008] 11 S.C.R. 548 SHIVJEE SINGH AND ORS. V." . STATE OF BIHAR (Criminal Appeal No.1494 of 2004) JULY 30, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: s. 149 - Applicability of - Held: Not applicable when com- mon object of unlawful assembly not proved. s. 149 - Common object - Connotation of - Held: The object should be common to the persons who compose the assembly- It may be formed at any stage by all or a few mem- bers of the assembly - '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 - On facts, Appellant-father urged his son to fire from his gun whereafter son fired a shot resulting in death of one and injuries to other - Conviction of appellant-son un- der ss.302 and s.148 and s.27 of Arms Act upheld - Convic- tion of appellant-father under ss. 302, 147 and 149 also up- held - Five other appellants who were pelting stones from the roof were convicted under ss. 302, 147 and 149 - Their con- viction under ss. 302 and 149 is set aside, but conviction un- der s.147 is maintained. Prosecution case was that on the fateful day, when PW-1 was sitting at his Dalan, 'SNS' and his son 'AS', ap- pellants in appeal no.484 of 2006 and other accused per- G sons came there and started quarrelling and abusing PW- 1. 'SNS' then took the other accused who are appellants in appeal no.1494 of 2004 to roof top and from there started petting stones on the roof of the house of PW-1. 'SNS' urged his son as to open fire from his gun. 'AS' H 548 -1· ,... )' ""- -i--- SHIVJEE SINGH AND ORS. v. STATE 549 OF BIHAR _, ,.. thereafter fired a shot which hit the deceased resulting in A his death. 'AS' fired seven to eight shots that caused inju- ries to PW-3, PW-10 and PW-6. One of the stones thrown by SNS hit PW-5 and caused injury to him. 'SNS' and 'AS' were convicted for offence punish- B able under Section 30.2 and Seclion 148 IPC and Section "' -( 27 of Arms Act and sentenced to undergo life imprison- ment, three years and five years respectively for the three offences. All the five appellants in appeal no. 1494 of 2004 were found guilty of offence punishable under Section 302 r.w. Section 149 IPC and Section 147 and sentenced c to life imprisonment and two years respectively. The High Court dismissed the appeals rejecting the plea of the appellants that the evidence of witnesses should not be relied upon as there was sudden pre-fight D and, therefore, Section 149 has no application. Hence . ~-~ these appeals . Partly allowing appeal no.1494 of 2004 and dismiss- ing appeal no. 484 of 2006, the Court HELD: 1.1. A plea which was emphasized by the ap- E pellants relates to the question whether Section 149, IPC has any application for fastening the constructive liabil- ity which is the sine qua non for its operation. The em- phasis is on the common object and not on common in- tention. Mere presence in an unlawful assembly cannot F ""' render a person liable unless there was a common ob- ject and he was actuated by that common object and that object is one of those set out in Section 141. Where com- man object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of G Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and ..,. whether the said persons entertained one or more of the , common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless H 550 SUPREME COURT REPORTS [2008] 11 S.C.R. A an overt act is proved against a person, who is alleged to ,, \""" be a member of 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 B fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'com- mon.', it must be shared by all. 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 c stage by all or a few members of the assembly 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 ab
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