Holding

A conviction under Section 149 IPC cannot be maintained without material establishing the accused's participation in the common object, and a presumption of motive based on familial relationship is insufficient.

Summary

The case arose from a violent clash over a disputed passage construction in Uttar Pradesh, resulting in three deaths and several injuries. Twenty‑four persons were charged; the trial court convicted seven under Sections 302 and 307 read with Section 149 IPC, while the High Court affirmed those convictions, acquitted fifteen, and gave benefit of the U.P. Children Act to a juvenile. On appeal, the Supreme Court examined whether Section 149 IPC could be invoked without a specifically proved common object and whether a conviction could be sustained solely on a presumed motive because the accused was the son of the alleged mastermind. The Court held that a conviction cannot be maintained without positive material linking the accused to the common object, thus setting aside the conviction of Raj Pal. It further clarified that Section 149 imposes constructive liability based on the existence of a common object, which can be inferred from the conduct, arms and behaviour of the assembly, and that specific roles need not be ascribed to each participant. Consequently, the appeal of Raj Pal was allowed, while the appeals of the other five accused were dismissed and their convictions upheld.

Issues considered

The applicability of Section 149 IPC where the common object of an unlawful assembly is not expressly proved.
Whether a conviction can be sustained on the basis of a presumed motive (being the son of the prime mover) without positive evidence.
Whether specific participation or distinct roles must be established for each accused under Section 149.
Whether the prosecution must prove each accused's individual act in the murders.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 307

Subjects

Section 149 IPCunlawful assemblycommon objectconstructive liabilitymurderacquittalpresumed motivejuvenile offendercriminal appeal

Judgment

CHARAN SINGH AND ORS. A
v.
ST ATE OF UTTAR PRADESH

MARCH I 0, 2004

[DORAISWAMY RAJU AND ARIJIT FASAYAT, JJ.] B

Penal Code, 1860; Ss. 141, 147, 148, 149, 302 and 307:

Assault and murder-Trial Court convicted accused persons for
committing offences u!s 302 rlw Section 149 and u/s 307 rlw Section 149, and C
sentenced them accordingly-High Court affirming conviction of 6 accused
persons ordered acquittal of remaining accused as the material available was
insufficient to prove their guilt-On appeal, Held: On the one hand, the trial
Court and the High Court considered one of the accused on the same footing
as other acquitted accused, on the other hand distinguished his case because D
he was son of the main accused and on that basis established his motive in
the crime-There is no scope for such distinction-Thus conviction cannot be ·
maintained

Other accused-Conviction-Held: Ascribing of definite role to the
accused for application of Section 149 unnecessary when all ingredients of E
the Section established-Accused committed the crime by constituting unlawful
assembly-Hence, conviction and sentence in respect of other five accused
maintained.

Common object vis-a-vis common intention-Distinction between- F
Discussed.

Words and Phrases:

'unlawful assembly', 'knew', 'in prosecution of common object' and
'common object'-Meaning of in the context of Section 149 !PC. G
According to the prosecution, on the fateful day when one of the
accused started constructing a passage adjacent to the wall of PWS, he
raised objections and PW2 called persons from both the sides to resolve
the dispute. Accused persons assembled allegedly armed with weapons and
H
925
926 SUPREME COURT REPORTS [2004] 2 S.C.R.

, A indulged in a quarrel with the persons from the prosecution side and
threatened them with dire consequence. In the process, accused opened
fire killing one person on the spot. Thereafter assaulted others and again
opened fire, thereby killing two more persons and injuring others. Some
of the accused also got injured. Accused ran away after committing the
B crime. Police investigated the matter and submitted charge sheet against
24 accused persons. Trial Court found them guilty of committing the crime
under Section 302 r/w Section 149 and Section 307 r/w Section 149 and
sentenced them accordingly. High Court upheld the conviction of 7 accused
persons. Since one of them was a juvenile, he was extended the benefit of
Section 2(4) of the U.P. Children Act, and acquitted 15 accused persons
C as sufficient material was not available to establish the crime against them;
one of the accused died during pendency of the appea-1, thus appeal abated
,against him. In respect of another accused, charge-sheet was not submitted
by the Police. Hence the present appeal by the 6 accused persons.

It was contended for the accused-appellants that the juvenile accused
D inflicted serious injuries and other accused opened fire which has resulted
in the death of 3 persons. Thus, it cannot be said that accused shared the
common object for an unlawful assembly; that in the facts and
circumstances of the case, Section 149 IPC is riot applicable; and that there
was no distinctive features in respect of one of the convict vis-a-vis the
E acquitted accused persons acquitted by the High Court who were similarly
placed and on mere surmise motive for commission of the crime was
established against him.

Allowing the appeal of one of the accused and dismissing the other
appeals, the Court
F
HELD: 1. Though the High Court noted that one of the accused/
appellant stands on the same footing as other acquitted accused persons,
however, the Trial Court and the High Court distinguished his case by
observing that he being the son of the main accused, the prime mover of
the crime, he might have a motive. In the absence of any positive material
G in that regltrd, there is no scope for distinguishing his case from the other
accused persons who have been acquitted. Hence, his conviction cannot
be ma.intained. r933-A-B)

2.1. Section 149 IPC has its foundation on constructive liability
H which is the sine qua non for its operation. The emphasis is on the common
CHARAN SINGH v. STATE OF U.P. 927
object and not on common intention. Mere presence in an unlawful A
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 IPC. Where common object of an unlawful assembly
is not proved, the accused persons cannot be convicted with the help of
Section 149. (933-C-D]
B
2.2. It cannot be laid down as a general proposition oi law that
unless an overt act is proved against a person, who is alleged to be a
member of unlawful assembly, it cannot be said that he is a member of
an assembly. (933-E]

i.3. The word 'object' means the purpose or design and, in order
c
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 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 D
or abandoned at any stage. An object is entertained in the human mind,
and it being merely a mental attitude, no direct evidence can be available
and, like intention, has generally to be gathered from the act which the
person commits and the result therefrom. Though no hard and fast rule
can be laid down under the circumstances from <Which the common object E
can be called 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. [933-F; 935-B]

2.4. The expression 'in prosecution of common object' as appearing
in Section 149 have to be strictly construed as equivalent to 'in order to F
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 up to a particular stage,
and not thereafter. Members of an unlawful assembly may have
community of object up to certain point beyond which they may differ in G
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 IPC may be different on
different members of the same assembly. (933-G-H; 934-A] H
928 SUPREME COURT REPORTS [2004] 2 S.C.R.

A 2.5~ 'Common object' is different from a '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 that they act as an assembly to achieve that
object. The 'common object' of an assembly is to be ascertained from the
B 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 unlawful 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
C 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 ~nlawful common
object, th~ same must be translated into action or be successful.
[934-B-D]

3.1. Section 149 IPC consists of two parts. The first part of the
D Section means that the offence to be committed in prosecution of the
common object must be one which is committed with a view to accomplish
the common object. In order that the offence may fall within the first part,
the offence must be connected immediately with the common object of the
unlawful assembly of which the accused was member. Even if the offence ·i
E committed is not in dirt!ct prosecution of the common object of the

-
assembly, it may yet fall under Section 141 ·IPC, if it can be held that the
offence was such as the members knew was likely to be committed and
this is what is required in the second part of the Section. [934-F-G]

3.2. The word 'knew' used in the second branch of Section 149 IPC
F implies something more than a possibility and it cannot be made to bear
the scene 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 was likely to be committed in prosecution of the common object.
G 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. [935-C]

Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC 731,
relied on.
H
4. There is always peril in treating the words of a judgment as
CHARAN SINGH v. STATE OF U.P. [PASAYAT, J.] 929

- though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts
of a particular case. Circumstantial flexibility, one additional or different
A

fact may make a world of difference between conclusions in two cases.
[936-G)

Padamasundara Rao (Dead) and Ors. v. State of Tamil Nadu and Ors., B
JT (2002) 3 SC 1, relied on.

Roshan Lal and Ors. v. State of Maharashtra, AIR (1977) SC 672 and
Mariadasan and Ors. v. State of Tamil Nadu, AIR (1980) SC 573,
distinguished.
c
5. In the instant case, it cannot be held that since definite roles have
not been ascribed to the accused, Section 149 IPC would not be applicable.
Analysing the factual scenario in the background of existing legal position,
the inevitable conclusion would be that accused-appellants have been
rightly convicted by application of Section 149 IPC. [937-A)
D
Masalati v. State of U.P., (1964) 8 SCR 133; Lalji v. State of U.P.,
(1989) 1 SCC 437 and State of U.P. v. Dan Singh and Ors., [1997) 3 SCC
747, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. E
1115-1116 of 2003.

From the Judgment and Order dated 29.11.2002 of the Allahabad High
Court in Crl. A. Nos. 1959/84 and 2036 of 1984.

Jaspal Singh and Ms. Jaspreet Gogia for the Appellants.
F
Subodh Markandeya, Rajeev Dubey, Ms. Rashmi Singh and Kamlendra
Mishra for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The six appellants faced trial along with 18 G
others for alleged commission of offences punishable under Sections 147,148,
302 read with Section 149 and 307 read with Section 149 of the Indian Penal
Code, 1860 (in Short "the IPC"). They were convicted by the Trial Court.
For the offence relatable to Section 302 read with Section 149 IPC, life
imprisonment was awarded; whereas for the offence relatable to Section 307 H
930 SUPREME COURT REPORTS [2004] 2 S.C.R.

A read with Section 149 IPC imprisonment of 7 years was awarded. According
to the prosecution, one Devi Charan (hereinafter referred to as the 'deceated
D-l ') lost his life on account of murderous assaults of the accused persons.
Two other persons namely, Buddha and Shanti Devi (described hereinafter as
deceased D-2 and D-3 respectively) lost their lives in the incident. All the 24
accused persons preferred appeal before the High Court. The High Court . I
B found that one accused named Shyamu was a juvenile and with reference to \•

Section 2(4) of the U.P. Children Act, 1951 his conviction was maintained,
but he was extended the benefit of the said Act. Though one Ram Pal was
named in the first information report, no charge sheet was submitted so far
as he is concerned. One Narena died during the pendency of the appeal
C before the High Court and the appeal abated so far as he is concerned.
Dealing with the case of other 22 accused persons, the High Court found that
the appellants 10 to 23 were stated to be armed with lathies only. There was
no sufficient material to bring home the accusations so far as they are
concerned. Though one Raj Pal was also similarly placed, the High Court
made a distinction holding that he being the son of Harkesh, the prime mover
D of the entire episode, it can be presumed that he may have had a motive to
join the unlawful assembly with his father, brother and others. Though one
Mahesh Chand was also stated to be holding a spear, he was also found to
be not. guilty on the logic of the other accused persons who were holding
lathies. He was also given the benefit of doubt. ~·
I.

E The prosecution version as unfolded during trial is as follows;
I

On the fateful day at about 11.30 a.m. the accused Harkesh started
constructing a passage adjacent to the wall of Satya Prakash, who resisted
and raised objection to· the construction of the passage adjacent to his wall.
p He complained of the matter to Tejveer (PW-2) who thought it proper to
resolve the dispute and called persons from both the sides. Jai Prakash (PW-
1) the informat, Satya Prakash (PW-5) and others collected in front of the
Gher of accused Harkesh for Panchayat. From the other side, accused Harish
Chandra and other accused persons assembled for Panchayat over the issue.
They were allegedly armed with various weapons. Harish Chandra started
G exchanging hot words with Satya Prakash (PW-5) and he asked his companions
(other accused) to kill the persons on the prosecution side. Resultantly, all the
accused persons attacked the members of the other side, who had assembled
to join the Panchayat and injured Indra Pal, Satya Prakash (PW-5), Sant
Singh, Faqir Chand, Mukut Lal, Chandra Pal, Ram Jas and Tejveer (PW-2)
H on the side' of the prosecution.
CHARANSINGHv. STATEOFU.P.[PASAYAT.J.) 931

Instantaneously, all the accused reached the Baithak of deceased nearby A
the Gher of Harkesh. There Harish Chandra told the deceased that he would
be taught a lesson for the litigation started by him two years back. Accused
Harish Chandra and Har Prasad Opened fire on Devi Charan. Harkesh wielded
spear and Raj Pal gave a lathi blow to Devi Charan. It, however, appears that
Devi Charan did not receive any injury from such weapons, as he received B
gunshot wounds only according to post mortem report. Devi Charan died on
the spot.

The accused then reached the Gher of Jai Prakash (PW-1) son of
deceased D-2, Buddha, There, spear blow was struck in the abdomen of
Buddha, Jai Prakash's mother Smt. Shanti Devi rushed up to save her husband, C
but she was also given spear blow. Harish Chandra also opened fire on
Buddha. According to the prosecution, 15-20 shots had been fired by the
accused persons, who ran away after committing the crime. Buddha staggered
a little and died in the field of Sri Ram. Shanti Devi (deceased D-3) died the
next day and before that, her dying declaration was recorded.
D
As regards the injuries sustained by the four persons on the accused
side, the explanation that came forth from the side of the prosecution is that
the persons from the prosecution side had resorted to brickbatting in self
defence as per the version of PW-2 Tejveer Singh-Pradhan.

After investigation, charge sheet was laid and trial was held which E
resulted in the impugned judgment. At the trial persecution examined 13
witnesses out of whom Jai Prakash (PW-1), Tejveer (PW-2) and Satya Prakash
(PW-5) were stated to be eye-witnesses. PW-2 and PW-5 were injured also.
The rest were doctors, investigating officer and other formal witnesses,
Mention should be made with regard to Dr. S.K. Agrawal (PW-9) in whose F
presence dying declaration of Smt. Shanti Devi (D-3) was recorded. Shashi
Shekhar Singh (PW-11) was the Executive Magistrate who recorded her dying
declaration.

The defence was of denial. The accused Harish Chandra in his statement
under Section 313 of the Code of Criminal Procedure, 1973 (in short the G
'Code') stated that Harkesh was constructing passage by the side of his wall
and Satya Prakash (PW-5) never resisted him from doing so. He also raised
the plea of alibi. According to accused Har Prasad he along with Pappoo,
Hazari and Kunwar Pal was sitting in the Nohra of Harkesh. Suddenly, 14-
15 persons including Satya Prakash, deceased Devi Charan and Buddha, and
others came there and asked for providing passage to them. He refused to H
932 SUPREME COURT REPORTS [2004) 2 S.C.R.

A oblige them. Then they started assaulting them with spears and guns with
which they were armed, resulting in injuries to the persons on the accused
side. Pappoo took out a gun from his house and in private defence fired from
that gun. Hazari repelled the attack with spear and . Shanti Devi came in
between and received injuries in the scuffle. Later on, the injured left the
Gher of Harkesh, but blood from their injuries fell down in the Gher and
there was trailing of blood throughout the passage. Accused Chandra Pal also
took the plea of alibi saying that he was on his duty. Accused Kunwar Pal,
also took similar plea of false implication.

The accused examined constable Ram Bhool Singh (DW-1) to prove a
C copy of the Chik report on the basis of an application ofone of them and the
related entry in general diary, Pappoo (DW-2) was also examined in support
of defence version as disclosed by Har Prasad in his statement recorded
under Section 313 of the Code.

The Trial Court accepted the version of the injured witnesses and
D recorded conviction as aforesaid. In appeal, appellant Nos. 5 and I 0 to 23
were acquitted while the conviction and sentence as imposed was maintained
for the others.

In support of the appeals, learned senior counsel submitted that the
accusations were against Harkesh who supposedly was armed with double
E barrel gun, resulting in the death of Devi Chand (D-1 ). The death of D-1, D-
2 and D-3 were attributed the severe injuries inflicted by (Juvenile accused)
Shyamu. Though it is stated that Hazari, Kunwar, Dev Dutt and Virender
were carrying country made pistols, and Charan Singh was carrying a double
barrel gun, it cannot be said that they shared the common object for any ·
F unlawful assembly. The incident can be broken into two parts as stated by the
prosecution witnesses, i.e. exchanges at the Panchayat and subsequent acts.
Therefore, there is no question to any object linking appellants with the
killings. Reliance is placed on Roshan Lal and Ors. v. State ofMaharashtra,
AIR (1977) SC 672 and Mariadasan and Ors. v. State of Tamil Nadu, AIR
(1980) SC 573 to contend that Sections _149 cannot be pressed into service
G in a case of this nature. Additionally it is submitted that so far as accused
appellant Raj Pal is concerned, there is no distinctive feature vis-a-vis acquitted
accused persons who were similarly placed. On mere surmise that he may
have the motive he has. been roped in.

Per contra, learned counsel for the respondent-State supported the
H judgment of the courts below.
CHARANSINGHv. STATEOFU.P.[PASAYAT,J.] 933
We shall first deal with the accused-appellant Raj Pal. As noted by the A
High Court he stands on the same footing as that of the acquitted accused
persons. The Trial Court and the High Court, however, distillguished his case
by observing that being the son of accused Harkesh who was prime mover
of the crime, he may have a motive. In the absence of any positive material
in that regard, there is no scope for distinguishing his case from the other B
accused persons who have been acquitted. Therefore, his conviction cannot
be maintained.

Coming to the others who were armed with double barrel guns and
country made pistols, the question is regarding applicability of Section 149,
IPC. Section 149, IPC has its foundation on constructive liability which is the C
sine qua non for its operation. The emphasis is on the common 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 w.as actuated
by that common object and that object is one of those set out in Section 141.
Where common object of an unlawful assembly is not proved, the accused
persons cannot be convicted with the help of Section 149. The crucial question D
to determine is whether the assembly consisted of five or more persons and
whether the said persons entertained ~ne or more of the common objects, as
specified in Section 141. 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 unlawful assembly, it cannot be said that he is a member of an E
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, that is to say, they should all be aware of it and concur in it. A F
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 assembly and the other members may just join and
adopt it. Once fonned, 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 have to be strictly construed as G
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 up to a
particular stage, and not thereafter. Members of an unlawful assembly may
have community of object upto certain point beyond which they may differ H
934 SUPREME COURT REPORTS [2004] 2 S.C.R.

A 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, IPC may be different on different inembers of
B the same assembly.
'Common object' is different from a "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
inore and that they act as an assembly to achieve that object. The "common
C 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 unlawful 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
D 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. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful. It
E is not necessary that the intention or the purpose, which .is necessary to
render an assembly an unlawful one comes into existence at the outset. The
time of forming an unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the course of incident
at the spot. co instanti.
F
Section 149, IPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object
must be one which is committed with a view to accomplish the common
object. In order that the offence may fall within the first part, the offence
must be connected immediately with the common object of the unlawful
G assemply of which the accused was member. Even if the offence committed
is not in direct prosecution of the common object of the assembly, it may yet
fall under Section 141, if it can be held that the offence was such as the
members knew was likely to be committed and this is what is required in the
second part of the section. The purpose for which the members of the assembly
.H set out or desired to achieve is the object. If the object desired by all the
CHARANSINGHv. STATEOFU.P.[PASAYAT.J.j 935
members is the same, the knowledge that is the object which is being pursued A
is shared by all the members and they are in general agreement as to how it
is. to be achieved and that is now the common object of the assembly. An
object is entertained in the human mind, and it being merely a mental attitude,
no direct evidence can be available and, like intention, has generally to be
gathered from the act which the person commits and the result therefrom. B
Though no hard and fast rule can be laid down under the circumstances from
which the common object can be called 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 branch
'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 C
nec~ssary. 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 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 of Section 149 cannot be D
ignored or obliterated. In every case it would be an issue to be determined,
whether the offence committed falls within the first part or it was an offence
such as the members of the assembly knew to be likely to be committed in
prosecution of the common object and falls within the second part. However,
there may be cases which would be within first offences committed in E
prosecution of the common object would be generally, if not always, with the
second, namely, offences which the parties knew to be likely committed in
the prosecution of the common object. (See Chikkarange Gowda and Ors. v.
State of Mysore, AIR (195.6) SC 731.

The other plea that definite roles have not been ascribed to the accused F
and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench
of this Court in Masalti's case (supra) observed as follows:

"Then it is urged that the evidence given by the witnesses conforms
to the same uniform pattern and since no specific part is assigned to
all the assailants, that evidence should not have been accepted. This G
criticism again is not well-founded. Where a crowd of assailants who
are members of an unlawful assembly proceeds to commit an offence
of murder in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe accurately
the part played by each one of the assailants. Besides, if a large H
936 SUPREME COURT REPORTS [2004] 2 S.C.R.

A . crowd of persons armed with weapons assaults the intended victims.
It may not be necessary that all of them have to take part in the actual
assault. In the present case, for instance, several weapons were carried
by d.ifferent, members of the unlawful assembly, but it appears that
the guns were used and that was enough to kill 5 persons. In such a
case, it would be unreasonable to contend that because the other
B weapons carried by the members of the unlawful assembly were not
used, the story in regard to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is no doubt a difficult
task; but criminal courts have to do their best in dealing with such
cases and it is their duty to sift the evidence carefully and decide
c which part of it is true and which is not."

To similar effect is the observation in Lalji v. State of U.P., [1989] 1
sec 437. It was observed that :
"Common object of the unlawful assembly can be gathered from the
D nature of the assembly, arms used by them and the behaviour of the
assembly at or before the scene of occurrence. It is an inference to
be deduced from the facts and circumstances of each case. "

In State of U.P. v. Dan Singh and Ors., [1997] 3 SCC 747 it was
observed that it is not necessary for the prosecution to prove which of the
E members of the unlawful assembly did which or what act. Reference was
made to Lalji's case (supra) where it was observed that "while overt act and
active participation may indicate common intention of the person perpetrating
the crime, the mere presence in the unlawful assembly may fasten vicariously
criminal liability under Section 149".
--
F Above being the position, we find no substance in the plea that evidence
of eyewitnesses is not sufficient to fasten guilt by application of Section 149.
So far as the observations made in Roshan Lal and Mariadasan cases
(supra), it is to be noted that the decision in the said case was rendered in a
different factual scenario altogether. There is always peril in treating the
G words of a judgment as though they are words in a legislative enactment, and
it is to be remembered that judicial utterances are made in the setting of the
facts of a particular case. Circumstantial flexibility, on additional or different
fact may make a world of difference between conclusions in two cases (See
Padamasundara Rao (dead) and Ors. v. State of Tamil Nadu and Ors., JT
(2002) 3 SC 1. It is more so in a case where conclusions relate to appreciation
H of evidence in a criminal trial.
CHARAN SINGH v. STATE OF U.P. [PASA YAT. J.] 937

When the factual scenario is analysed in the background of legal position A
highlighted above, the inevitable conclusion is that accused-appellants Charan
Singh, Dev Dutt, Virender, Kunwar Pal and Harkesh have been rightly
convicted by application of Section 149 !PC. Their appears are without merit
and are dismissed. In the ultimate result, the appeal of accused-appellant Raj
·Pal is allowed while those of the other accused-appellants stand dismissed. B
Appellant Raj Pal Shall be released from custody unless required in any other
case.

S.K.S. Appeal disposed of.