LexSTATE OF RAJASTHAN versus SHIV CHARAN & ORS.
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A B [2013) 8 S.C.R. 336 STATE OF RAJASTHAN v. SHIV CHARAN & ORS. (Criminal Appeal Nos. 1425-1426 of 2007) JULY 1, 2013 [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.) Penal Code, 1860: c. s. 30211491148 - Conviction under - By trial court - Sentence of life imprisonment with fine - High Court allowed the conviction to one uls.323 and reduced the sentence to one year imprisonment on the ground inter alia that fatal injury was attributable to the absconding accused and the 0 complainant party was the aggressor - On appeal, held: Finding of High Court was based on no evidence and hence perverse - It is actually a case where common object of unlawful assembly stood translated into action and members of the assembly succeeded in their mission. E s. 149 - Common object - Invocation of - Discussed. Criminal Trial - Non-explanation of serious injuries on the person of accused - Effect of - Held: Non-explanation of serious injuries on the person of accused may be fatal to the F prosecution case, but if injuries are minor, even if not explained, prosecution case cannot be disbelieved. Respondent-accused were prosecuted u/ss. 302/149/ 148 IPC. The accused had also filed a cross-case. Trial court convicted the accused for the offences charged G and sentenced them to life imprisonment. The High Court in view of the facts that the fatal injury was attributable to the absconding accused; that FIR was registered on the basis of hearsay information; and in view of the injuries on the accused and also that the pending cross- H 336 STATE OF RAJASTHAN v. SHIV CHARAN & ORS. 337 case suggest that complainant party was the aggressor, A converted the conviction to one u/s. 323 IPC and converted the life sentence to imprisonment for one year. Hence the present appeal by the State. Allowing the appeal, the Court B HELD: 1.1. Applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (i) offence committed by any member of any unlawful assembly consisting five or C more members and; (ii) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there D should be a prior concert as the common object may be formed on spur of the moment. Common object would mean the purpose or design shared by all the members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution E of the common object of the unlawful assembly, it may yet fall under second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. The court must keep in mind the distinction between the two parts of Section F 149 IPC, and, once it is established that unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to G determine .whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not H 338 SUPREME COURT REPORTS [2013] 8 S.C.R. A the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or B knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for u/s.142 IPC. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object. [Para 16) C [345-H; 346-A-H; 347-A] Saladin and Ors. vs. State of U.P. AIR 1956 SC 181; Masalti vs. State of U.P. AIR 1965 SC 202: 1964 SCR 133; Chandra Bihari Gautam and Ors. vs. State of Bihar AIR 2002 SC 1836: 2002 (2) SCR 1164; Ramesh and Ors. vs. State D of Haryana AIR 2011 SC 169: 2010 (12) SCR 799; Ramachandran and Ors. Etc. vs. State of Kera/a AIR 2011 SC
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