KISHAN CHAND AND ORS. versus STATE OF U.P.

15. This Court in Mizaji and Anr. v. The State of U.P., [1959] H ,,-\, A Supp 1 SCR 940 opined that there are two parts of Section 149 of the r c . Indian penal Code. To attract the first part, it was not necessary that there should be a pre-concert. In regard to the second part, it was stated: " … Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all … "

16. In Bishna Alias Bhiswadeb Mahato & Ors. v. State of West E Bengal, [2005] 12 SCC 657: (2005) 9 SCALE 204, this Court held: "For the purpose of attracting Section 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch. Inaction on the part of an accused may some time go a long way to hold that he shared a common object v.1.th ._ others."

17. In Triloki Nath and Ors. v. State of UP., [2005] 13 SCC 323, the law has been stated in the following terms: "For the purpose of attracting Section 149 of the IPC, it is not necessary that there should be a pre-concert by way of a meeting of the persons of the unlawful assembly as to the common object. If a common object is adopted by all the persons and shared by them, it would serve the purpose."

18. Ms. Goswami relied upon a decision of this Court in Munna y i _I KISHAN CHANDv. STATE [SINHA,J.] Chanda v. State of Assam, [2006] 3 SCC 752 wherein the accused A persons were held to have not formed any common object keeping in view the genesis of the said occurrence which took place at three different stages. Appellants therein were involved only at the third stage. It was in the peculiar fact situation obtaining therein this Court opined: "The appellants herein were not armed with weapons. They B except Bhuttu were not parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might have become agitated and asked for apologies from Moti. Admittedly, it was so done at the instance ofNirmal, Moti was C assaulted by Bhuttu at the instance of Rattan. However, it cannot be said that they had common object of intentional killing of the deceased. Moti, however, while being assaulted could free himself from the grip of the appellants and fled from the scene. The deceased, was being chased not only by the appellants herein but D by many others. He was found dead next morning. There is, however, nothing to show as to what role the appellants either conjointly or separately played. It is also not known as to whether if one or all of the appellants were present, when the last blow was given. Who are those, who had assaulted the deceased is also E not known. At whose hands he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian Penal Code is, therefore, attracted. [See Dharam Pal and Ors. v. State of Haryana, [1978] 4 sec 440 and Shambhu Kuer V. State of Bihar, AIR (1982) SC 1228]."

19. Right of self-defence is a plea which is available to the accused but the burden to prove the same would be on them. The High Court, in our opinion, committed an error in rejecting the plea of self-defence raised on behalf of the accused stating that the incident G took place at an open space. There is no law that right of self-defence cannot be exercised in relation to a dispute over an open space. But the factual matrix obtaining in the instant case being absolutely different, we are of the opinion that right of self-defence on the part of the accused was not available. Accused persons were the aggressors. They had gone H A to the scene of occurrence with weapons. Phool Chand and other accused, in all probability, thought that having regard to the order passed by the Superintendent of Police asking his subordinate officers to afford them protection, they could take law in his own hands. Thus, they could raise construction by show of force. Evidences adduced on behalf of the prosecution in no unmistakable terms point out that all the overt acts started from the side of the accused persons. They rejected the advice not to raise any construction till the dispute is detennined. They started using abusive language and even when asked not to do so they continued to do so. Only when a protest was C made by the villagers, Accused No. 1 Phool Chand went to the rooftop of a house and started indiscriminating firing. He was in army. He was presumably a good marks man. Shots fired by him hit the deceased on vital parts of their bodies.

20. It is not the case of the appellants that the villagers intended to dispossess them. We have noticed hereinbefore that they were not armed at all. They had assembleo at the place only with a view to resist the attempt on the part r.f the accused persons to raise constructions in respect whereof Accused No. 1 himself had given an undertaking that he would E not do so. The Superintendent of Police might have issued certain directions to the Sub-Inspector but indisputably the lis was pending adjudication before a competent authority. Accused could not have taken law in their own hands only because the Superintendent of Police has asked his police officer to give protection to him.

21. It has been found by the learned Trial Judge as also the High Court that the prosecution witnesses did not enter into their house. The plea that the modesty of Smt. Shakuntala Devi was outraged has been rejected by both the courts. The accused did not lodge any First Information Report in that behalf. They, for reasons best known to them, G did not go to a government doctor to get their purported injuries examined on their persons. Although the offence took place in the morning of 3.02.1978, they went to DW-1 only on the next day to get their purported injuries examined. For valid and cogent reasons, the testimonies of the DWs had not been accepted. The question as to whether in a situation H of this nature the right of private defence could be exercised by the y (~ – KISHANCHANDv. STATE[SINHA,J.] accused persons must be considered having regard to the following facts: A (i) the prosecution witnesses were not armed; (ii) there is nothing to show that they attempted to dispossess Accused No. I. (fu) They did not dismantle the structures. (iv) Accused persons themselves started abusing them. (v) They intended to establish their right of raising constructions for which they were fully prepared. (vi) Had the matter been otherwise, the villagers would have also C gone to the site with arms. (vii) Why all the five accused persons were armed has not been explained.

22. The fact that number of injuries sustained by the prosecution D witnesses and the nature thereof, viz., they suffered gun shot injuries as also injuries caused by lathis, goes a long way to show that the accused persons had shared common object. From the post mortem as also the injury report, it is evident that E more than one gun was used for commission of the offence. The prosecution witnesses also suffered injuries which could only be caused by lathis. It is, therefore, a case where all the appellants together with ,- ~- Phool Chand had taken part in the commission of the offence.

23. In Shambhu Nath Singh and Ors. v. State of Bihar, AIR F (1960) SC 725, this Court opined: "6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for G such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and ifthat offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if – one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their c common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same uniawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306."

24. In Shivalingappa Kallayanappa and Ors. v. State of Karnataka, [1994] Supp 3 SCC 235, this Court opined: "9. From the above discussion it is established by the prosecution that A-1 to A-5 formed into an unlawful assembly variously armed and participated in the occurrence during which two deceased persons died and P.Ws. 2 to 4 received injuries. The next question is whether the common object of the unlawful assembly was to commit the murders. Whether there was such a common object or not, depends upon various factOrs. A-1 and A-2, though armed with axes, did not use the sharp side but only gave one or two blows on the heads with the butt ends. A-4 and A-5 who were armed with sticks dealt blows only on the legs and or on the hands which were not serious. A-3 did not participate in the attack on any of the two deceased persons. 'These circumstances show that the common object of the unlawful assembly cannot be said to be to cause murders and at any rate it cannot be said that all the accused shared the same and that they had knowledge that the two deceased persons would be killed and with that knowledge continued to be the members oftp.e unlawful assembly. However, -L .. y A- – KISHAN CHAND v. STATE [SINHA, J.] taking all the circumstances of the case into consideration, the A common object can be held to be only to cause grievous hurt. A-1 and A-2, however, dealt blows with the butt ends of the axes on the two deceased persons and the injuries on the heads caused by them proved to be fatal. Having given our earnest consideration to this aspect of the case, we are of the view that A-1 and A-2 B must be held liable for their individual acts and they would be liable to be punished under Section 302 I.P.C. and A-3 to A-5 under Sections 326/149 I.P.C. so far as the attack on the two deceased persons is concerned."

25. In Bunnilal Chaudhary v. State of Bihar, [2006] 10 SCC 639, C this Court held: "13 … We may say here that it is now the settled law that under Section 149 IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the D fact whether the other persons knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour on or before the scene of occurrence … "

26. In Sunil Balkrishna Bhoir v. The State of Maharashtra, (2007) 7 SCALE 184, this Court held: "17. Section 149 per se constitutes a substantive offence. The object of this section is to make clear that an accused person p whose case falls within its terms cannot put forward the defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Unlawful assembly was G formed originally to assault and something might have happened all of a sudden."

27. In a case ofthis nature, the injuries on the part of the defence witnesses need not detain us as sufferance of such injuries at the hands (2007] 10 S.C.R. A of the prosecution witnesses had not been believed by both the courts below. We do not see any reason to differ with the said findings.

28. If Phool Chand was anned by the purported order passed by the Superintendent of Police that he should have assistance from the police B officers. We fail to see any reason as to why he could not go to the police station and lodge a First Infonnation Report. Why the injured persons did not go to a Government Hospital for getting themselves examined on that date itself. It betrays common sense as to why they had to go to a private doctor and that too on the next date. The accused persons even did not mind setting up a false plea to the effect that modesty of Smt. C Shakuntala Devi had been outraged. The testimony of Smt. Shakuntala Devi has been discarded by the courts below. No attempt even had been made before us to assail the correctness of that part of the judgment.

29. For the reasons aforementioned, we do not find any merit in D this appeal which is dismissed accordingly. D.G. Appeal dismissed.