Sec 499 of IPC. Defamation.

—Whoever, by words either spoken or intended to be read,

or by signs or by visible representations, makes or publishes any imputation concerning
any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the cases
hereinafter expected, to defame that person. Explanation 1.—It may amount to
defamation to impute anything to a deceased person, if the imputation would harm the
reputation of that person if living, and is intended to be hurtful to the feelings of his
family or other near relatives. Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may
amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputa-
tion, unless that imputation directly or indirectly, in the estimation of others, lowers the
moral or intellectual character of that person, or lowers the character of that person in
respect of his caste or of his calling, or lowers the credit of that person, or causes it to be
believed that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful. Illustrations
(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it to be
believed that Z did steal B’s watch. This is defamation, unless it fall within one of the
exceptions.
(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that
Z stole B’s watch. This is defamation unless it fall within one of the exceptions.
(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z
stole B’s watch. This is defamation, unless it fall within one of the exceptions. First
Exception.—Imputation of truth which public good requires to be made or published.—It
is not defamation to impute anything which is true concerning any person, if it be for the
public good that the imputation should be made or published. Whether or not it is for the
public good is a question of fact. Second Exception.—Public conduct of public
servants.—It is not defamation to express in a good faith any opinion whatever respecting
the conduct of a public servant in the discharge of his public functions, or respecting his
character, so far as his character appears in that conduct, and no further. Third
Exception.—Conduct of any person touching any public question.—It is not defamation
to express in good faith any opinion whatever respecting the conduct of any person
touching any public question, and respecting his character, so far as his character appears
in that conduct, and no further. Illustration It is not defamation in A to express in good
faith any opinion whatever respecting Z’s conduct in petitioning Government on a public
question, in signing a requisition for a meeting on a public question, in presiding or
attending a such meeting, in forming or joining any society which invites the public
support, in voting or canvassing for a particular candidate for any situation in the efficient
discharges of the duties of which the public is interested. Fourth Exception.—Publication
of reports of proceedings of Courts.—It is not defamation to publish substantially true
report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court
preliminary to a trial in a Court of Justice, is a Court within the meaning of the above
section. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and
others concerned.—It is not defamation to express in good faith any opinion whatever
respecting the merits of any case, civil or criminal, which has been decided by a Court of
Justice, or respecting the conduct of any person as a party, witness or agent, in any such
case, or respecting the character of such person, as far as his character appears in that
conduct, and no further. Illustrations
(a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid
or dishonest”. A is within this exception if he says this is in good faith, in as much as the
opinion which he expresses respects Z’s character as it appears in Z’s conduct as a
witness, and no further.
(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be
a man without veracity”; A is not within this exception, in as much as the opinion which
he express of Z’s character, is an opinion not founded on Z’s conduct as a witness. Sixth
Exception.—Merits of public performance.—It is not defamation to express in good faith
any opinion respecting the merits of any performance which its author has submitted to
the judgment of the public, or respecting the character of the author so far as his character
appears in such performance, and no further. Explanation.—A performance may be
substituted to the judgment of the public expressly or by acts on the part of the author
which imply such submission to the judgment of the public. Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the
public.
(c) An actor or singer who appears on a public stage, submits his acting or signing in the
judgment of the public.
(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s
book is indecent; Z must be a man of impure mind”. A is within the exception, if he says
this in good faith, in as much as the opinion which he expresses of Z respects Z’s
character only so far as it appears in Z’s book, and no further.
(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a
weak man and a libertine”. A is not within this exception, in as much as the opinion
which he expresses of Z’s character is an opinion not founded on Z’s book. Seventh
Exception.—Censure passed in good faith by person having lawful authority over
another.—It is not defamation in a person having over another any authority, either
conferred by law or arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which such lawful authority
relates. Illustration A Judge censuring in good faith the conduct of a witness, or of an
officer of the Court; a head of a department censuring in good faith those who are under
his orders; a parent censuring in good faith a child in the presence of other children; a
school-master, whose authority is derived from a parent, censuring in good faith a pupil in
the presence of other pupils; a master censuring a servant in good faith for remissness in
service; a banker censuring in good faith the cashier of his bank for the conduct of such
cashier as such cashier—are within this exception. Eighth Exception.—Accusation
preferred in good faith to authorised person.—It is not defamation to prefer in good faith
an accusation against any person to any of those who have lawful authority over that
person with respect to the subject-matter of accusation. Illustration If A in good faith
accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant,
to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—
A is within this exception. Ninth Exception.—Imputation made in good faith by person
for protection of his or other’s interests.—It is not defamation to make an imputation on
the character of another provided that the imputation be made in good faith for the
protection of the interests of the person making it, or of any other person, or for the public
good. Illustrations
(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he
pays you ready money, for I have no opinion of his honesty”. A is within the exception, if
he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on
the character of Z. Here, if the imputation is made in good faith, and for the public good,
A is within the exception. Tenth Exception.—Caution intended for good of person to
whom conveyed or for public good.—It is not defamation to convey a caution, in good
faith, to one person against another, provided that such caution be intended for the good
of the person to whom it is conveyed, or of some person in whom that person is inter-
ested, or for the public good. COMMENTS Imputation without publication In section 499
the words “makes or publishes any imputation” should be interpreted as words supple-
menting to each other. A maker of imputation without publication is not liable to be
punished under that section; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7
Supreme Today 127.

Section 149 in The Indian Penal Code

149. Every member of unlawful assembly guilty of offence committed in prosecution of
common object.—If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that object, every person
who, at the time of the committing of that offence, is a member of the same assembly, is
guilty of that offence.

Section 124A in The Indian Penal Code

101
[124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards, 102 [***] the Government established by
law in 103 [India], [***] shall be punished with 104 [imprisonment for life], to which fine
may be added, or with imprisonment which may extend to three years, to which fine may
be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty
and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the
measures of the Government with a view to obtain their alteration by lawful means,
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute
an offence under this section. Explanation 3.—Comments expressing disapprobation of
the administrative or other action of the Government without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an offence under this section.]

Section 149 of Indian Penal Code,

1860 – Explained!
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Legal Provisions of Section 149 of Indian Penal Code, 1860.
Every member of unlawful assembly guilty of offence committed in
prosecution of common object:
ADVERTISEMENTS:

This section is a very important provision with regard to group liability. It is also
known as laying down a principle of joint or vicarious or constructive criminal
responsibility. It says that whenever any member of an unlawful assembly commits
an offence in prosecution of the common object of that assembly, or any such
offence is committed by any member of that assembly about which the members of
the assembly had knowledge that such offence was likely to be committed in
prosecution of the common object of that assembly, every person who was a
member of such assembly at the time of commission of the offence is guilty of that
offence.

In other words, there are two kinds of cases covered under this section. The first part
holds every member of an unlawful assembly guilty of any offence which has been
committed by any member of such assembly in prosecution of the common object of
the assembly.

The second part holds every member of such assembly guilty of any offence which
the members of such assembly knew to be likely to be committed in prosecution of
the common object of the assembly. The basis of the constructive guilty under this
section is the membership of an unlawful assembly.

In prosecution of ‘common object’ means ‘in order to attain the common object’.
Effect of section 149 may be different on different members of the same assembly.
Common object is determined keeping in view nature of the assembly, arms carried
by members and behaviour of members at or near the scene of incident. It is not
necessary in all cases that the same must be translated into action or be successful.

ADVERTISEMENTS:

Offence
The word ‘offence’ has been defined in section 40 of the Code according to which
except in the chapters and sections mentioned in clauses 2 and 3 of this section, the
word ‘offence’ denotes a thing made punishable by this Code. Since section 149 has
not been ‘mentioned’ in clauses 2 and 3 of section 40, it would seem that the word
‘offence’ under section 149 of the Code denotes a thing made punishable by the
Indian Penal Code and it does not include offences under a special Act.

The Lahore High Court and Patna High Court have adopted this view and have held
that section 149 does not apply to offences under the Indian Railways Act and the
Defence of India Rules, 1939 respectively. The Calcutta High Court, on the other
hand, holds the view that ’offence’ under section 149 means a thing punishable
under the Indian Penal Code, or under any special or local law, if punishable under
such law with imprisonment for a term of six months or upwards, whether with or
without fine, a language used in clause 3 of section 40 but wherein it has been
clearly stated that this meaning of the word ‘offence’ is only in sections mentioned in
that clause and which does not mention section 149 of the Code.

Difference between the two parts of the section

ADVERTISEMENTS:

Outwardly, it seems that both parts of the section are almost similar, and any act
falling under the first part would almost necessarily fall within the latter part. But that
is not true. For instance, an unlawful assembly has the common object of committing
theft in an office in the night. While its members being in the process of committing
theft, the watchman comes in and they pounce upon him and give him a thorough
beating by fists.

Here the members may be held liable for the theft on the basis of the first part
because their common object was to commit that offence, while they may all be held
liable for inflicting criminal force and causing simple hurt to the watchman on the
basis of the second part as they being aware of the fact that a watchman guards the
office knew that in case he intervened, offence of criminal force and simple hurt were
likely to be committed in prosecution of the common object of the assembly.

The expression ‘in prosecution’ in the first part does not mean ‘during the
prosecution’ because had it been so, then the second part would have been
unnecessary. In order to fall within the first part an offence must be immediately
connected with the common object by virtue of the common object. An offence will
fall within the latter part if members of the assembly, by any reason, knew
beforehand that it was likely to be committed in prosecution of the common object,
though not knit thereto by the nature of the object itself.
The Supreme Court has held, that the expression in prosecution of common object
has to be strictly construed as equivalent to ‘in order to attain the common object.’
The word ‘knew’ used in the second part of section 149 implies something more than
possibility and it cannot bear the sense of might have known’. Offence committed in
prosecution of common object would generally be the offence which members of the
unlawful assembly knew to be likely to be committed in prosecution of the common
object.

In Bhargavan v. State of Kerala the Supreme Court reiterated that the expression ‘in
prosecution of the common object’ in section 149 is 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 of object and the object may exist only upto a particular stage and not
thereafter.

In Charan Singh v. State of Uttar Pradesh, the Supreme Court observed that though
no hard and fast rule can be laid down under the circumstances from which the
common object can be culled out, it may reasonably be collected from the nature of
the assembly, arms it carries and behaviour at or before or after the scene of
incident. The word ‘knew’ used in the second part of the section implies something
more than a possibility and it cannot be made to bear the sense of ‘might have been
known’. Positive knowledge is necessary.

When an offence is committed in prosecution of the common object, it would

generally be an offence which the members of the unlawful assembly knew to be
likely to be committed in prosecution of the common object. That, however, does not
make the converse proposition true. There may be cases which would come within
the second part but not within the first part.

In State of Punjab v. Sanjiv Kumar the Supreme Court observed that the word
‘object’ in section 141 means the purpose or design and in order to make it
‘common’, it must be shared by all. All members of the unlawful assembly should be
aware of it and concur in it. It 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 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’ appearing in section 149 have to be strictly
construed, as equivalent to ‘in order to attain the common object’. If must be
immediately connected with the common object by virtue of the nature of the object.

There must be community of object and the object may exist only upto a particular
stage and not thereafter. Members of an unlawful assembly may have 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 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 may be different on
different members of the same assembly.

Common object is different from common intention as it does not require a prior
concert and a common meeting of minds before the attack. It is enough if each has
the same object in view and their number is five or more and they act as an
assembly to achieve that object.

The ‘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. It may be gathered from the course of conduct adopted by the
members of the assembly.

What the common object of the assembly is at a particular stage of the incident is
essentially a question of fact to be determined keeping in view the nature of the
assembly, the arms carried by the members, and the behaviour of the members at or
near the scene of the incident. It is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object, the same must be translated
into action or be successful.

The word ‘knew’ used in the second limb of the section implies something more than
a possibility and it cannot be made to bear the sense of might have been known’.
Positive knowledge is necessary. When an offence is committed in prosecution of
the common object, it would generally be an offence which the members knew was
likely to be committed in prosecution of the common object.

That, however, does not make the converse proposition true; there may be cases
which would come within the second part but not within the first part. The distinction
between the two parts cannot be ignored or obliterated.

Where members split into groups

Where the members of an unlawful assembly split themselves into groups and
commit offences in prosecution of the common object of the assembly, they are
guilty of the offences caused. In Vithal Bhimashah Koli v. State, the assembly had
split itself into smaller groups with a view to avoid attention, and they attacked the
deceased at various stages within a very short interval of time, and there came one
point of time where all of them participated in the assault simultaneously, and they
also took away the body of the deceased together.

The Supreme Court held that they had acted in prosecution of the common object of
the assembly, and even if they might have come there separately without prior
arrangement, their common object would have been held to have developed
instantly. But since the state did not appeal against the acquittal of some of them, the
Supreme Court had to decide the appeal on the basis of individual liability.

Nexus between the common object and the act committed

The prosecution must establish that there was a nexus between the common object
of an unlawful assembly and the act committed by its members. In Allauddin Mian v.
State, two members of an unlawful assembly went after a person with the common
object of causing his death, who ran into a room to fetch a spear to defend himself.

His wife did not allow him to go out as a result of which the attackers, in frustration,
fired at the two daughters of their suspected victim playing outside and killed them.
The Supreme Court held only these two accused persons guilty of the murders, and
acquitted rest of the members of the assembly as they had no common object to kill
the ultimate victims, nor was the same incidental to their object.

Earlier the Supreme Court had held in Ram Bilas Singh v. State, that for vicarious
convictions under section 34 or 149 of the Code, it was necessary to prove overt
acts on the parts of the accused person committed in furtherance of the common
intention, or in prosecution of the common object of the unlawful assembly, as the
case may be.

But the Supreme Court also held in Lalji v. State, that if precise participation of the
accused persons could not be proved because of absence of evidence, that in itself
was not sufficient to mean acquittal of the members. The Patna High Court has
followed these rulings while holding in Nagina Sharma v. State, that persons in the
form of an armed gang, who came for capturing a booth during the polls and prevent
voters from casting franchise, were liable for the eight deaths caused by them in the
process.
In Mukteshwar Rai v. State, the accused were members of an unlawful assembly.
Their common object, however, was proved to be setting houses on fire and not
committing murder. It was held that they were guilty under section 426/149 and not
under section 302/149.

In Chandubhai Malubliai Parmar v. State of Gujarat,1 there were communal riots in

which the accused armed with guns were alleged to have shot dead two persons of
the deceased party while they were running towards their houses. A mob of over one
hundred persons chasing the deceased was alleged to have inflicted injuries by
spears and lathis on the deceased after being hit by gun shot.
The members of the unlawful assembly chased the rival community up to their
locality and started setting their houses on fire while others caused death of four
persons. The Supreme Court held that the accused armed with gun were liable to be
convicted for the murders while those engaged in burning houses could not be said
to have shared common object or common intention of causing murder by virtue of
section 149 or 34 of the Code.

In Slate of Maharashtra v. Kashirao the Supreme Court has ruled that it cannot be
laid down as a general proposition of law that unless an overt act is proved against a
person who is alleged to be a member of an 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 fall within the purview of
section 141. The word ‘object’ means the purpose or design and in order to make it
‘common’ it must be shared by all. In other words, the object should be common to
the persons who compose the assembly, i.e., they should all be aware of it and
concur in it.

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 association 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 the 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 of object and the object may exist only upto a
particular stage and not thereafter. Members of an unlawful assembly may have
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 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 may be
different on different members of the same association.

In M/s. Siyaram v. State of Madhya Pradesh, the Supreme Court held that mere
presence of in an unlawful assembly cannot render a person liable unless there was
a common object and he was actuated by that common object. The word ‘object’
means the purpose or design. In order to make it common, it must be shared by all.
It may be formed at any stage by all or a few members and other members may just
join or adopt if.

The words ‘in prosecution of common object’ have to be strictly construed as

equivalent to ‘in order to attain the common object’. Members may have community
of object up to a certain point beyond which they may differ in their object. Common
object may be gathered from the course of conduct adopted by members. Common
object may not be from the beginning. The time of forming it is not material.

Withdrawing from the assembly before an act

There have been cases where one or more members of an unlawful assembly have
withdrawn from the assembly before a particular act was done by other members of
the assembly. In such cases the courts have held that a member is responsible only
up to the time he can be said to remain involved in the doing of an act and his liability
comes to an end once he withdraws himself, whether willingly or because of any
other reason.

One group of people waylaid another group and a fighting ensued between the two
in the course of which a person belonging to the first group was injured. He withdrew
himself to one side taking no further part in the fighting. Sometime thereafter, a
person belonging to the other group was killed. It was held that the injured person
who had withdrawn earlier could not be held guilty of the subsequent murder even
though he was liable for everything that had taken place before he withdrew.

The Supreme Court also felt the same way in Nawab Ali v. State, in which it set
aside the conviction of an accused who had withdrawn from a house before a
murder was committed there in prosecution of the common object of the unlawful
assembly of which initially he had been a member. The view was reiterated by the
Supreme Court in Musakhan v. State, wherein it was held that once the accused had
left the place of crime and had thereby ceased to be a member of the unlawful
assembly, he could not be held guilty of the subsequent murder committed by other
members.

In Bhimrao v. State of Maharashtra, all accused persons along with some others
formed an unlawful assembly with the common object of committing the murder of
the victim and with that object they went inside his house. At that place some
members of the assembly entered his house and assaulted him causing grievous
injuries consequent to which he died about six days later. While the victim was being
assaulted inside the house the appellants stood outside and did not take part in the
assault nor was any grievous injury caused to any one by them.

The Supreme Court held that the accused persons standing outside the house of the
victim could not be knowing what transpired inside the house. The act of those
members of the original unlawful assembly who had entered the house could not be
attributed to members who stood outside. Those members who did not share the
common object and stood outside were thus liable to be convicted under section
352/149 and not under section 326/149 of the Code.

Persons joining after the act is over

In Shanta v. State, a fight had already taken place between two groups of people in
which three persons had died and some others were injured. The accused
appellants entered the scene thereafter, and on being attacked by the other group,
resisted the same. The Supreme Court held that they could not be held liable for the
murders which had already been committed before they joined. The reasons may be
similar in both the above-discussed situations, that is to say, where someone
withdraws before an act is done and where someone joins after the act has already
been completed.

Sudden fight
Public peace is disturbed quite often when two or more groups of people suddenly
start fighting with each other. The court have successfully analysed such situations
adequately many a time. In Lalji v. State, a sudden fight ensued between two groups
of people following an altercation between them as a result of which one person was
killed.
The evidence was not clear to the effect that the appellants had formed themselves
into an unlawful assembly of which the common object was to cause death. The
Supreme Court refused to apply section 149 of the Code and held that each person
could be held individually liable for the offence which he had committed.

Similarly, in another case of a free fight between two groups, it was not clear as to
whether the accused persons were the aggressors, nor was there any evidence of
individual acts of assault by them. The Supreme Court refused to apply sections 147
and 148, and also set aside the convictions based on section 149 of the Code.

Where two opposing groups indulged in a free fight in course of a melee resulting
into injuries to members of both groups and death of two, section 149 of the Code
cannot be applied and guilt could be fixed only on the basis of individual acts
committed by them.

Proof of specific acts of members is not necessary

Where the common object of an unlawful assembly is established, it is not necessary
to prove the specific overt acts attributed to each member, and all would be liable for
the offence committed in prosecution of the common object.

In Mahmood v. State of Uttar Pradesh? the Supreme Court observed that specific
overt act of the accused need not be established as membership of unlawful
assembly is already established. Thus, no interference with the conviction of the
accused under sections 302/149 was required.

Where act done is different from the common object

The courts have to carefully analyse the evidence to conclude as to whether the acts
done by members of an unlawful assembly are in fact in prosecution of the common
object of the assembly, or not. Where a group of persons went together to eject the
person in possession of a disputed land, and on stiff resistance being offered by him,
a member fired at him causing his death, it was held that other members of the
unlawful assembly were not guilty of murder as the act of firing was neither in
prosecution of the common object of the assembly nor did the members know the
same to be likely to be committed in prosecution of the common object.

A gang was preparing to commit dacoity in a village. Two members of the gang were
chased and caught by the villagers. A member of the gang fired at these villagers
killing one of them. It was held that the two members who were chased and caught
could not be held guilty of murder because there could not be any common object
between these two and the rest after the two were separated from the others.

A crowd armed with deadly weapons broke open the doors and windows of a police
wireless station. A policeman was also attacked in the process but the evidence
could not establish as to who had inflicted injuries on him. The Supreme Court ruled
that all accused persons only shared the common object of committing lurking
house-trespass and no other offence, and they were thus guilty under sections 455
and 149 of the Code.

The common object of an unlawful assembly was to beat a person. One member,
however, pulled out a knife and stabbed him as a result of which he died. It was held
by the Supreme Court that all members could not be held liable for the murder as
common object to inflict fatal injuries was neither present at the initial stage nor at
the stage of execution.

A member of an unlawful assembly gave another member a bullet who fired and
killed the deceased. The Supreme Court held that the common object of the
assembly being to voluntarily cause grievous hurt, all members were guilty only of
the same under section 325 read with section 149 of the Code and not of the
murder.

Caste conflict
Caste occupies an important place in the life of an average Indian, and that is one of
the important reasons of cases of caste conflict which come up before the courts.
The law applied in these cases is no different from other.

In Mehtab Singh v. Slate, some high caste persons were not on good terms with
certain low caste people. On the day of the occurrence twenty three high caste
persons including the appellants went to the locality of the low caste persons,
shouted at them to the effect that they would finally settle the score, abused and
pelted stones at them.

When the low caste persons ran for safety some were dragged out, beaten and one
of them died. The Supreme Court held that the common object of the assembly was
to attack and cause injuries initially, but it changed later and the members knew that
murder was likely to be committed in prosecution of it, and consequently all were
guilty of murder.
In Ranbir Yadav v. State of Bihar, a mob of about 500-600 people belonging to same
community and residents of different villages attacked a neighbouring village to
exterminate ‘Bind’ community of that village. The accused persons came on horses
armed with firearms and led the mob along with others. They were amongst the
rioters who chased the villagers and committed murders at the bank of the river.

The High Court concluded that the accused shared common object of the unlawful
assembly to commit offences of loot, arson and murder and causing disappearance
of evidence of murder, and convicted them. The Supreme Court ruled that there was
no cause for interference with the judgment. In State of U.P. v. Dan Singh, a
marriage party of a scheduled caste family was passing through another village
when it was asked by the villagers to take the bride on foot in front of a temple which
was rejected.

The villagers assaulted the marriage party by sticks and stones and six of its
members were burnt, five of them having been locked inside the house of the only
scheduled caste resident of the village whose house was also burnt. Eight others
were pursued, mercilessly beaten and killed. The Supreme Court held the accused
persons identified by all the four eye-witnesses were liable to be convicted under
sections 147, 302/149, 436/149, 323/149 and 307/149 of the Code.

In Krishna Mochi v. State of Bihar, the accused persons arrived at the place of
occurrence, entered the houses by breaking open the doors, forcibly took inmates of
the houses after tying their hands to a particular place and massacred them by
slitting their throats. All such acts were done pursuant to a conspiracy hatched up by
them to eliminate members of a particular community in the village. Charge-sheet
was prepared against 119 persons but ultimately thirteen accused persons were
proceeded against under section 302/149 of the Code and under section 3 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987.

The Supreme Court held that merely because some accused persons were not said
to have assaulted either any of the deceased or injured persons, it could not be
inferred that they had no complicity with the crime, all the more so as they were
heavily armed with firearms and bombs etc. but did not use the same. The accused
militants were in police uniform and they killed thirty-five persons in all while several
others were injured. Since this was a rarest of rare case, death sentence was the
proper sentence.

Clear evidence
When the evidence about the common object of an unlawful assembly along with the
act in prosecution of the same is clear, there is not much difficulty in giving a
decision. Where the common object of an assembly was to encroach upon the land
of a widow and kill anyone who resisted the same, it was held by the Supreme Court
that when as many as four persons were killed and one seriously injured in the
process, there was no doubt that all members of the assembly were guilty of the
same under sections 302 and 149, that sections 147 and 148 of the Code also
applied.

In a case of long standing enmity a group of armed people went and attacked others.
The complainant snatched a spear from one of the attackers and defended causing
injuries on some. Two of the attackers then fired some shots killing one person. The
Supreme Court confirmed the convictions for murder, attempted murder and
voluntarily causing hurt read with sections 148 and 149 of the Code.

In a similar case, there was long standing rivalry between two groups. The deceased
was given merciless beating and was done to death. One accused inflicted injuries
by an axe, the other by a spear and the third by a stick. The absconded accused
persons were later arrested from the house of one of the accused who was the
leader of the rival faction against the deceased. It was held that there was no
infirmity in recording convictions against the three accused persons.

The accused appellants had invited the deceased party to come at their residence to
peacefully settle their difference over talks. When they reached there, the appellants
attacked them killing two of them and seriously injuring two others. The Supreme
Court held the appellants guilty of the murders and attempted murder by virtue of
section 149 of the Code.

In Haricharan v. State of Rajasthan, the accused persons went to the place of

incident armed with weapons. They stopped the bus in which the deceased was
travelling, put a gun on the chest of the driver and threatened to shoot if he drove
ahead. They caught hold of the deceased and tried to drag him out. One of the
accused fired two shots at the deceased and the other accused assaulted him by
other weapons. The Supreme Court held all the accused guilty under section
302/149 of the Code.

In Rajinder v. State of Haryana, the accused persons armed with lathis and one
armed with a gun came to the deceased’s shop, abused him and initially beat him
with lathis and stones. Then the accused with the gun fired two shots killing the
deceased. They all fled together in a jeep. The Supreme Court held that their object
clearly was to cause death and all were thus guilty under sections 302/149.

In Mangal Singh v. State of Bihar, the accused party fired at the deceased party after
exchange of words in a land dispute matter. Many members of the accused party
were armed with firearms. Two members of the accused party were, however, not
armed. They had not committed any overt act. Eye witnesses did not say that any
exhortation was given by them. The Supreme Court held that they cannot be said to
have shared the common object of the unlawful assembly and so cannot be
convicted. Conviction of all others, however, was held proper.

Insufficient evidence
The accused persons, charged along with others, for having committed murder of a
sub-inspector of police, were acquitted by the High Court. Three others pleaded
before the Supreme Court to be acquitted likewise. The evidence showed that the
appellant had disarmed the deceased sub-inspector but had not used that revolver
against his adversaries and, in fact, had surrendered the arm to the police at the
earliest opportunity.

The Supreme Court observed that it seemed that the appellant had disarmed the
sub-inspector with a view to avoid bloodshed, and since the evidence did not
implicate the two appellants clearly, these three persons could not be held guilty of
murder.

A married lady wished to leave the home of her in-laws and asked her relatives to
come and take her. Three of her relatives along with some other accused persons
came to her. When her father-in-law and some other villagers resisted the move,
there was an altercation between the two parties. One of the accused fired three
shots injuring three persons out of whom one died later.

The deceased who was injured at that time was picked up and put in a tractor in
which the firer of the shots and some other accused along with the married lady all
drove away, while the other accused followed. The Supreme Court held that the
evidence was not sufficient to establish a common object of murder on the part of the
accused. Consequently, only firer of the shots would be liable individually for his acts
and all others would have to be held not guilty.

Not using arms

In Balkar Singh v. State, some accused persons armed with firearms and some with
deadly weapons participated in the incident in which four persons were killed and
several others were injured. It was held that sections 34 and 149 were squarely
attracted and the accused armed with firearms could not be absolved on the ground
that they had not used them.

Occurrence at two places

In Jairam v. State, one of the accused persons was armed with a gun. The incident
took place at two places, the first near the house where the deceased and his
brother received gunshots, and the second while the deceased was being taken to
the hospital in a cart. The F.I.R. and other evidence were not at variance. All injuries
except gunshot wounds were proved to be post mortem. It was held that there
existed no unlawful assembly and the accused using the gun was alone guilty of
murder.

Inference of knowledge
According to the second part of the section, if members of an unlawful assembly
knew that an offence was likely to be committed in prosecution of the common object
of the assembly, every member is guilty of that offence. The question is as to how
would a court infer this knowledge.

The Supreme Court has observed in Santosh v. State, that this knowledge could be
inferred from the nature of the acts done by other members of the assembly in
presence of the accused member who saw these or knew about these and even
then continued to remain a member of the assembly.

Where several person are armed with lathis and one with a hatchet, and all agreed
that if there was a need the arms would be used, it could be said that the members
were prepared to use force of violence and if some deaths or bodily injuries resulted,
it could be said that they knew the same to be likely to be committed in prosecution
of the common object of the assembly.

Where a group of persons, two of them being armed with pistols, had the common
object of abducting some woman, and one person was shot in prosecution. Pistols
might be used, and all could be said to have knowledge that murder was likely to be
committed in prosecution of the common object.

In Mathew v. State, the police arrested two persons and placed them in police lock-
up. Twenty nine accused persons, some of them armed with deadly weapons,
attacked the police station in the night with a view to free these two persons. Two
constables died in the attack. It was held by the Supreme Court that members of the
unlawful assembly knew that murder was likely to be committed in prosecution of the
common object of the assembly and, therefore, all were guilty of the two murders.

In Tanaji Govind Misal v. State of Maharashtra, the evidence proved that the motive
of the accused party was to remove ‘babul’ trees from the field at any cost and cause
such injury as may be necessary for that purpose. Some of the accused, however,
started assaulting immediately after reaching the spot.

It was held by the Supreme Court that the other accused persons could not be
conclusively said to have known that murders were likely to be committed in
prosecution of their common object so as to attract the latter part of section 149.
Such accused would thus be guilty under sections 326/149 while such accused who
acted beyond common object were liable to be convicted under sections 302/34 of
the Code.

In Rameshwar Pandey v. State of Bihar, all members of an unlawful assembly had

come armed with firearms with a view to commit extortion. The Supreme Court held
that all members must be attributed the knowledge that it was likely that murder may
be committed in prosecution of that object.

Applicability of section 149 or 34 with section 397

The Rajasthan High Court is of the view that section 149 or 34 of the Code cannot
be applied to a case covered by section 397 of the Code because the individual act
of an offender covered by section 397 does not make fellow criminals responsible
under that section.

In Boddapati Venkatramaiah v. State of Andhra Pradesh, the Andhra Pradesh High

Court ruled that where accused persons are charged for different offences including
offences under sections 148 and 149 and where the trial Court has acquitted him
under section 148 but convicted him under section 149, the conviction under section
149 is illegal.

Applicability of the principle of issue estoppel

In Bhoor Singh v. State, the Supreme Court was seized of the question of
applicability of the principle of issue estoppel to the case of murder committed in
prosecution of the common object of an unlawful assembly. Some accused persons
were being prosecuted under section 302 read with section 149 of the Code for
committing a murder in prosecution of the common object of an unlawful assembly.

A separate case under the Arms Act for possession of a gun, the murder weapon,
was pending against one of these accused persons, in which he was acquitted and
against which decision no appeal was preferred. The accused argued that the
principle of issue estoppel should be applied under which once he had been finally
acquitted of the charge of possession of a gun, he could not be held guilty of causing
murder by a gun in the main case.

The Supreme Court held that the plea was not acceptable and the charge under
sections 302 and 149 of the Code against all the accused persons did not fail
because the murder case had been decided first and the case under the Arms Act
later, and in addition to that, the latter decision was perhaps given on an erroneous
ground that intention to use the gun or allow its use of any unlawful object had not
been proved. In view of these, the principle of issue estoppel was held to be not
applicable.

Absence of Children Act

A child of fifteen years of age was convicted under section 326 read with section 149
of the Code. The Supreme Court felt disappointed that a Children Act did not exist in
Bihar, and ordered that the child be kept in an open prison, or in a model prison, or
any other prison where he could not come in contact with hardened criminals.

Charge
It has been observed by the Supreme Court that when an accused is being charged
under section 149, there is no obligation to charge him under section 143 or section
147 also. It is, however, better to charge him also under section 147 or 148, as the
case may be, because that would ensure that even if he gets an acquittal from the
court under section 149, he does not go scot-free.

Conviction of less than five persons

Before applying section 149 of the Code, the Court must ensure that there were at
least five persons sharing a common object. But this does not mean that a minimum
of five persons must always be convicted whenever this section is applied. There
may be following five situations in this regard:

1. Where the total number of participants in the crime is proved beyond doubt and
also the participation of the less than five persons being convicted is proved, their
conviction is legal. For instance, if the prosecution proves that a total of seven
persons had committed the crime out of whom A, В and С were definitely there, then
conviction of A, В and С is legal.

2. Where the total number of participants is not proved beyond doubt but
participation of the less than five persons being convicted is proved, their conviction
is probably not good. For instance, where the prosecution fails to prove the total
number of participants in the crime but proves that A, В and С were definitely there,
then probably conviction of A, В and С will not be legal because the prosecution has
not been able to establish as to how many persons shared the common object.
There may, however, be a difference of opinion in this regard because some people
may argue that the prosecution has proved that there were at least five persons in
the assembly out of whom A, В and С were definitely there and, therefore, their
conviction should be legal.

3. Where the case of the prosecution is that all the participants are named and only
they, and no others, have participated in the crime and the less than five persons
being convicted were definitely present even though who were the others with them
is not proved, the conviction of these less than five persons is illegal and they have
to be acquitted along with all others. For instance, if the prosecution insists that А, В,
C, D, E, F and G had committed the crime out of whom participation of A, В and С is
proved beyond doubt but participation of D, E, F and G is not proved beyond doubt,
the conviction of A, В and С is illegal and all the seven have to be acquitted. The
reason for this is that the prosecution insists that these seven persons only, and no
others, had participated in the crime but fails to prove the case against D, E, F and
G, meaning thereby the prosecution fails to prove the existence of an unlawful
assembly consisting of A, В and С on the one hand, and the other four on the other,
and thus conviction of A, В and С is bad.

4. Where the less than five persons being convicted are not public servants but the
others with them are public servants against whom sanction for prosecution has not
been given by the appropriate authority and as such no case has begun against
them. In such a case, conviction of these less than five persons is legal. For
instance, A, В and C, who are not public servants, are being prosecuted along with
D, E, F and G, who all are public servants. Since sanction for prosecution of D, E, F
and G has not been given, no case in fact is pending against them. Here conviction
of A, В and С is legal.
5. If the prosecution has proved the participation of the less than five persons being
convicted that they along with the others had participated in the crime but the others
die during pendency of the case, the conviction of these less than five persons is
legal. For instance, if the prosecution has proved the participation of A, В and С
beyond doubt and also that they along with D, E, F and G had participated in the
crime, but D, E, F and G die during the pendency of the case, the conviction of A, В
and С is legal.

If the evidence establishes with certainty that there were at least five persons sharing
a common object amongst themselves, though the identity of some of them was
doubtful, conviction of the rest is good in law. But if five or more named persons
have been charged with committing an offence in prosecution of the common object
of an unlawful assembly, and some of them are acquitted reducing the number of the
convicted persons to less than five, such a conviction of less than five persons is bad
in law.

In Amar Singh v. State, seven persons were charged with committing an offence in
prosecution of the common object of the unlawful assembly, and three of them were
acquitted. Neither an appeal was preferred against their acquittal nor did the
prosecution argue the involvement of five or more persons, known or unknown, in
the crime. The Supreme Court held that none could be convicted under these
circumstances.

In K. Nagamalles Ware Rao v. State, all alleged members of an unlawful assembly

except four were acquitted, and the evidence against these four was also not reliable
in the sense that no overt acts on their part were proved. The Supreme Court
quashed their conviction.

In Ram Tahal v. State, charges of rioting with deadly weapons and murder in
prosecution of the common object of an unlawful assembly were preferred against
six persons out of whom two were acquitted. The Supreme Court set aside the
conviction of the other four also holding that sections 148 and 149 were not
applicable. It, however, said that they could be convicted of murder in furtherance of
common intention if the evidence so warranted.

In Jharu v. State, and Khuji v. State, respectively, one single individual accused
member of an unlawful assembly was convicted while rest of the members were
acquitted. On the other hand, in Zahoor v. State, the conviction of two persons who
had participated in the crime was held to be valid while the other members of the
unlawful assembly who did not participate were acquitted.

In Golla Pullana v. State of A.P. seven persons who had participated in an assault
were convicted by the trial court. The High Court acquitted four of them while one of
the remaining three died during pendency of the appeal. The High Court, despite
absence of appeal against the acquitted accused, found that acquittal of two by the
trial court was wrong. The Supreme Court held that the High Court could convict the
remaining two accused on the basis of sections 300/149 since there were more than
five persons out of the named accused who had participated in the assault on the
deceased.

The Supreme Court has ruled in Dhupa Chamar v. State of Bihar, that section 149
would not apply when three out of seven members of an unlawful assembly have
been acquitted and the case is not that some other persons have also participated.

In Anthony D’Souza v. State of Karnataka, all the five accused persons were proved
to have participated in a murder though out of them the trial of one juvenile accused
was split. The Karnataka High Court converted their conviction from under sections
396/149 to one under sections 396/34. The Supreme Court ruled that this was not
proper.

In Kallu v. State of Madhya Pradesh, twenty seven persons were put on trial for
assaulting the complainant with various weapons with the common object of causing
injuries. Evidence showed that more than five persons took part in the incident. Only
four of them were, however, convicted.

The Supreme Court held that this does not mean that there was no unlawful
assembly. The mere fact that several accused were acquitted does not enable the
four accused persons who were found guilty to contend that section 149 is not
applicable.

Distinction between sections 34 and 149

Section 34 is applicable when an offence is committed by several persons ‘in
furtherance of common intention of all’ whereas section 149 applies when an offence
is committed by any member of an unlawful assembly ‘in prosecution of the common
object’ of that assembly, or such as the members of the assembly knew to be likely
to be committed ‘in prosecution of that object.
The former does not necessitate the existence of an unlawful assembly, while under
the latter there must be an unlawful assembly. Section 34 presupposes the existence
of at least two persons even though it is not necessary that at least two should
always be convicted, whereas under section 149 there must exist at least five
persons even though it is not necessary that a minimum of five persons must always
be convicted under this section.

Meeting of minds and consequently a pre-arranged plan or a prior concert is always

a requirement under the former, but that is not necessary under section 149. Active
participation of all must be proved under section 34, but liability under the latter
arises by virtue of being a member of an unlawful assembly. Section 34 is merely a
principle of joint liability, but section 149 besides being a principle of joint liability also
creates a specific offence even though generally the punishment must depend on
the offence of which the offender is by that section made guilty. The appropriate
penal section is, therefore, generally read with it.

The offence under section 149 of the Code is non-compoundable.