STATE OF RAJASTHAN versus NATHU AND ORS.

Citation: [2003] 3 S.C.R. 967 · Decided: 28-04-2003 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

ST A TE OF RAJASTHAN 
A 
v. 
NATHU AND ORS. 
APRIL 28, 2003 
B 
[Y.K. SABHARWAL AND H.K. SEMA, JJ.] 
Penal Code, 1860; Ss. 141, 148, 149, 302, 440, 451 and 454: 
Murder of two children-Trial of seven accused-Conviction of five of C 
them by the trial court u/s.302 /PC with the aid of Section 149-Acquittal of 
all except one by the High Court on ground that no avert act has been 
attributed to the four accused-On appeal, Held: both the trial court and the 
High Court found accused persons forming an unlawful assembly and armed 
with lethal weapons-All of them enter~d into the house of the victim by 
breaking the wall and one of the accused butchered the two children-High D 
Court proceeded on wrong assumptions of law that since fatal blow to the 
deceased was struck by one of the accused, no overt act could be attributed 
to remaining accused-Nature and behaviour of the assembly and the arms 
used by them conclusively proved that the common object of the unlawful 
assembly was to eliminate father of the deceased children to take avenge. E 
Hence all the five accused rightly convicted by the trial court for committing 
offence under Section 302 rlw Section 149 !PC 
Unlawful assembly-liability of individual members-Held: once an 
unlm1:fid assembly has come into existence each of its members becomes 
vicariously liable for commission of criminal act by its member/members in F 
furtherance of common object of such assembly-Definite findings as to which 
of the accused caused fatal injwy is not necessaiy for conviction. 
Words and Phrases: 'common object'-Meaning of in the context of 
unlav.ful assembly. 
According to the prosecution, there was enmity between accused and 
PWI, father of the deceased children. On the fateful day, PWI and his two 
children were sleeping in their house. On hearing some noise, he got up 
and saw the accused persons armed with weapons moving towards his 
G 
house. He got frightened and hid himself in the nearby house. He saw the H 
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968 
SUPREME COURT REPORTS 
[2003 I 3 S.C.R. 
A accused entering into his house by breaking the wall and thereafter he 
heard the scream of his daughter. He thought that the accused might have 
killed his children and ran away crying for help. On hearing the alarm, 
his mother, brother and relatives also joined him. When accused fled away, 
his mother went into the house and found both the children murdered. PWI 
B and his brother lodged an FIR. Police got the post-mortem done of the dead 
bodies and investigated the matter. The accused persons were charged for 
committing the offence of murder u/s 302 r/w Section 149 IPC and for other 
offences under various sections of IPC. Trial Court found five of them guilty 
of committing murder of the children of PW! by forming an unlawful 
assembly and convicted and sentenced them. On appeal, High Court 
C acquitted all except one of the accused on the ground that no overt Act 
has been attributed to the rest of the accused. Hence the present appeal by 
the State. 
It was contended on behalf of the respondents that there was 
inconsistency between the FIR and the statement of PWI; that the 
D prosecution had failed to prove entry of all the accused by breaking the 
wall; and that prosecution had failed to identify as to which of the accused 
member of the unlawful assembly had caused the death of the children. 
E 
F 
Allowing the appeal, the Court 
HELD: I. I. The High Court, having found the formation of unlawful 
assembly of five accused proved, proceeded on wrong assumption of law 
that only one of the accused had struck a fatal blow and no overt act has 
been attributed to the rest of four accused. The view taken by the High 
Court is a complete negation of the settled position of law. 1973-B, Cl 
1.2. In the instant case, the accused persons were comprised of five 
and they had formed an unlawful assembly, is being founded by both the 
courts below concurrently and the evidence on record clearly established 
that the accused entered into the house of PW! by breaking down the wall 
G of the house and they were armed with weapons. A long-standing enmity 
between PW! and the accused persons was proved from the statements of 
PW6. It was also revealed that 7-8 days prior to the incident PWI and 
others had a quarrel with the members of the families of the accused 
persons. The murder has been committed in broad day light. Witnesses and 
accused were known persons. The accused persons formed an unlawful 
H assembly arme

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