SUNIL KUMAR AND ANR. versus STATE OF RAJASTHAN

Citation: [2005] 1 S.C.R. 612 · Decided: 19-01-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
SUNIL KUMAR AND ANR. 
.. ,. 
v. 
STATE OF RAJASTHAN 
JANUARY 19, 2005 
B 
[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] 
Penal Code, I 860 : 
.. 
Section 302 rlw 149-Murder-Unlawful assembly-Common object-
• 
c Eight accused arriving together in a jeep and surrounding deceased-Jeep 
kept in starting position-One accused inflicting several blows with knife on 
abdomen of deceased-Other seven, i.e. appellants assaulting him with hockey 
sticks, iron rods and pipes-Persons trying to intervene, threatened with dire 
consequences-Accused fleeing after the incident in the same jeep-Conviction 
D of appellants under S.302 r/w S. I 49-Justification-Held, Courts below justified 
in applying S.149 to the case of appellants and convicting them-When several 
persons armed with weapons assault a victim, all of them may not take part 
y 
in the actual assault-Hence, it is not necessary to establish specific overt act 
by each accused. 
.. 
E 
Section 149-Applicability of-Constructive liability sine qua non-
Emphasis on common object and not common intention-Common object, 
when formed. 
Section 149 and Section 34--Common object and Common intention-
Distinction between-Discussed. 
F 
Criminal trial-FIR-Delay in sending FIR to Magistrale-No universal 
• 
rule that in all such cases, prosecution version becomes unreliable-Where on 
" 
facts, no question was put to Investigating Officer as to the reason for the 
alleged delay in sending the FIR and investigation was taken up immediately, 
G 
held, no adverse inference could be drawn. 
Words and Phrases-"Object"-Meaning of 
According to the prosecution, deceased, nephew of the informant, was 
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surrounded by eight accused persons. One of the accused, namely 'R' inflicted 
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612 
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SUNIL KUMAR v. STATE OF RAJASTHAN 
613 
several blows on the abdomen of the deceased with knife while the other seven, A 
i.e. the appellants assaulted him with hockey sticks, iron rods and pipes. 
Thereafter the accused fled away in a red jeep in which they had come 
together. Sessions Judge convicted 'R' under Section 302 IPC and the other 
seven accused under Section 302 r/w Section 149 IPC. High Court upheld 
the conviction. R did not prefer any further appeal, while the rest of the B 
accused filed the present appeals. 
In appeals to this Court, the pivotal question raised related to 
applicability of Section 149 IPC, with the appellants pleading that there is no 
evidence that any common object was pursued by them; that even if it is 
conceded as claimed by the prosecution that they came in the same jeep and c 
were armed with various weapons that does not per se establish that they 
shared a common object, and that the prosecution has failed to prove that in 
pursuance of such common object 'R' who allegedly gave the fatal knife blows 
' carried out the objective of the alleged unlawful assembly; and that the High 
Court did not properly consider various pleas which were raised before it. 
D 
Dismissing the appeals, the Court 
HELD : 1.1. The courts below were justified in applying Section 149 
IPC to the case of the appellants. They have been rightly convicted under 
Section 302 read with Section 149 IPC. (623-E) 
E 
1.2. Section 149 IPC has its foundation on constructive liability which 
is the sine qua non for its operation. The emphasis is on the comrron object 
and not on common intention. Mere presence in an unlawful assembly cannot 
render a person liable unless there was a common object and he was actuated 
by that common object and that object is one of those set out in Section 141. F 
1619-DI 
1.3. The word 'object' means the purpose or design and, in order to 
make it 'common', 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 stage by all or a few members of the G 
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 abandoned 
at any stage. The expression 'in prosecution of common object' as appearing 
in Section 149 has to be strictly construed as equivalent to 'in order to attain 
the common object'. It must be immediately connected with the common 
object by virtue of the nature of the object There must be community ofobject H 
614 
SUPREME COURT REPORTS 
[2005] I S.C.R. 
A and the object may exist only up to a particular stage, and not thereafter. 

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