DAYA KISHANversusSTATE OF HARYANA

                       [2010] 4 S.C.R. 854


A                        DAYA KISHAN
                              v.
                      STATE OF HARYANA
                (Criminal Appeal No. 879 of 2007)

                         APRIL 22, 2010
B
          [J.M. PANCHAL AND DEEPAK VERMA, JJ.]

        Penal Code, 1860:

c       ss. 3021149, 3071149, 3231149 ands. 148 - Conviction
  under - Altercation between S-son of informant and K-son of
  accused - After a short while, K and four others armed with
  weapons, went to the scene ofincident - Brother of K inflicted
  fatal gun shot injuries to R-nephew of informant and injuries
D to. S - Accused and two others caused injuries to informant -
  Conviction and sentence of accused uls 3021149, 3071149,
  3231149 ands. 148 by courts below - Three other accused
  declared proclaimed offenders - On appeal held: No
  altercation or quarrel took place between R and K nor any
E enmity between accused and R - Accused did not share
  common object of one of the members of the unlawful
  assembly to cause death of R - No knowledge can be
  attributed to him as regard the likelihood of commission of
  murder of R - Thus, conviction u/s. 3021149 not sustainable
  and set aside - Conviction uls. 3071149 and ss. 3231149 and
F
  148 upheld since finding of courts below based on
  appreciation of reliable evidence.

        s. 149 - Nature and scope of - Applicability of -
    Explained.
G
        According to the prosecution case, there was a land
    dispute between BR-informant and the appellant and the
    same was settled. The informant's case was that
    appellant's family were still bearing a grudge against his
H                              854
       DAYA KISHAN v. STATE OF HARYANA                   855


family. On the fateful day, altercation ensued between S-        A
son of informant and K-son of appellant. K came back
and after a short while again went to the scene of incident
with his father-appellant, brother P and two others. They
all were armed with weapons. They raised lalkara that S
would not be spared by them. P fired a gun shot resulting        B
in death of R. P also fired a gunshot at S, resulting in
injuries to S. The appellant along with other two inflicted
blows on the informant. The informant also inflicted
injury to the appellant in self-defence. The trial court
convicted the appellant u/s. 302/149 IPC and sentenced           c
to R.I. for life for causing death of R; u/s. 307/149 IPC and
sentenced to R.I. for seven years for attempting to
commit murder of injured S; and u/s. 323/149 IPC with R.I.
for one year; and u/s. 148 with RI for two years. Accused
RJ was also convicted. The other three accused were              o
declared proclaimed offenders. Hence the appeal.

    Partly allowing the appeal, the Court

     HELD: 1. Section 149 IPC creates a constructive or
vicarious liability on the members of the unlawful               E
assembly for the unlawful acts comr11itted pursuant to the
common object by any other member of that assembly.
The basis of the constructive guilt u/s. 149 IPC is mere
membership of the unlawful assembly, with the requisite
common object or knowledge~ This Section makes a                 I=
member of the unlawful assembly responsible as a
member for the acts of each and all, merely because he
is a member of an unlawful assembly. While overt act and
active participation may indicate common intention of the
person perpetrating the crime, the mere presence in the          G
unlawful assembly may fasten vicariously criminal liability
u/s. 149. There are two essential ingredients of s. 149, viz.,
(1) commission of an offence by any member of an
unlawful assembly and (2) such offence must have been
committed in prosecution of the common object of that            H
    856    SUPREME COURT REPORTS              [2010) 4 S.C.R.


A assembly or must be such as the members of that
  assembly knew to be likely to be committed. Once the
  court finds that these two ingredients are fulfilled, every
  person, who at the time of committing that offence was
  a member of the assembly has to be heltl guilty of that
B offence. After such a finding, it would not be open to thl'I
  court to see as to who actually did the offensive act nor
  it would be open to the Court to require the prosecution
  to prove which of the members did which of the offensive
  acts. Whenever a court convicts any person of ari offence
c With the aid of Section 149, a clear finding regarding the
  common object of the assembly must be given and the
  evidence discussed must show not only the nature of the
  common object but that in pursuance of suGh commdti
  object the offence was committed. There is no manner of
0 doubt that before recording the conviction u/s. 149 IPC,
  the essential ingredients of s. 149 IPC must bs
  established. [Para 12] [867-H; 868-A-F]

        2.1. On the facts and in the circumstances of the
  case, it is proved beyond pale of doubt that the deceased
E R died a homicidal death. The trial court as well as the
  High Court relied upon the testimony of injured informant
  as well as other witnesses and rightly recorded the
  conclusion that the deceased died because of shot fired
  at him by the accused P from his gun. The Sessions
F Court referred to the injuries sustained by S and correctly
  come to the conclusion that he had sustained injuries
  from the shot fired by the accused P. The other findings
  recorded by the Sessions Court and the High Court
  relating to commission of offences u/s. 323, 307 and 148
G IPC are based on appreciation of reliable evidence. The
  appellant failed to satisfy that those findings are either
  perverse or not borne out from the evidence. Under the
  circumstances those findings are upheld. [Paras 8 and
  9] "[866-C-F]
H
      DAYA KISHAN v. STATE OF HARYANA              857


    · 2.2. The prosecution did not lead any evidence to A
prove that the accused party had any grievance or
grudge against the deceased R who was nephew of the
first informant BR. The only fact, which can be held to be
proved by the prosecution, is that the accused K had an
altercation with 5 relating to purchase of some goods, B
after which K had threatened 5 and had then left the shop
and come back within a short duration with other four
accused including the appellant, who were variously
armed. The further fact proved by the prosecution is that
immediately on coming to the place of incident, P-son of C
the appellant· had fired a shot at R without any
provocation or previous enmity or any other reason. The
defence tried to prove enmity between the first informant
and the appellant but the substantive evidence of first
informant- PW 4 and injured 5-PW 10, in fact goes to     o
prove that there was no such dispute relating to the land
and/or enmity between the first informant and the
 appellant. The record does not indicate that any
 altercation had taken place between K-son of the
 appellant, and R when accused K had gone to the shop E
 of injured 5 for purchasing certain articles. In fact, the
altercation had taken place between K and injured 5.
Though it was the case of the prosecution that after
reaching the place of incident, the members of the
 unlawful assembly had given lalkara before the attack, F
the first informant in his substantive evidence before the
 court did not mention anything about the said lalkara
 though it was so mentioned by him in his FIR. Thus, the
 fact that lalkara was made before the attack is
 disbelieved. If the evidence of the injured witness is G
 appreciated in the said background, it becomes evident
 that no evidence could be adduced by the prosecution
 to establish that common object of the unlawful
 assembly was to do away with R or cause any injury to
 him. The evidence clinchingly established that H
    858     SUPREME COURT REPORTS              [2010] 4 S.C.R.


A immediately after reachins the place of incident a shot
  was fired by accused P from his gun. It would have been
  a different matter if R had suffered injuries in some other
  manner, e.g., R had tried to intervene when S was being
  attacked and was shot at. In such circumstances
8 provisions of s. 149 IPC could have been well invoked.
  [Para 13) [868-H; 869-A-H; 870-A]

       2.3. There is no evidence regarding meeting of minds
  or formation of the common object even at the spur of
C the moment, when P immediately after reaching the place
  of incident shot at the deceased R. There is no evidence
  suggesting that the appellant said something to indicate
  that he wanted the deceased to be done away with. There
  is nothing to establish that the appellant knew that P
  would cause fatal injuries to the deceased, though the
0
  appellant must have anticipated that P would cause
  injuries to S. [Para 13) [870-8-C]

       2.4. No overt act is attributed to the appellant so far
  as the deceased is concerned. Mere fact that the appellant
E was armed with a lathi by itself would not prove that he
  shared common object with which the main accused P
  was inspired. The prosecution did not lead the evidence
  to establish nexus between the common object and the
  offence committed. The appellant, being father of the
F accused K, who had an altercation earlier with injured S,
  had accompanied K, which can be termed as natural
  conduct on the part of the appellant. In the course of the
  incident the appellant himself had sustained serious
  injuries. The testimony of PW-14 and OW 1-doctors
G proves the same. The first informant had mentioned in his
  First Information Report itself that he had caused injuries
  to the appellant in exercise of his right of self-defence.
  The record did not indicate that the injuries sustained by
  the appellant were caused by deceased R. It is not the
H
       DAYA KISHAN v. STATE OF HARYANA                859


case of the prosecution that the appellant retaliated or A
asked others to attack the first informant despite having
received serious injuries, which would indicate that the
appellant had no grudge nor shared the object with which
me accused P had fired shot at the deceased R. The only
circumstance on the basis of which the prosecution B
wants to holtf that the common object of the unlawful
assembly was to murder R is that P had a gun and the
appellant was a member of an unlawful assembly. The
test for application ofs. T49 IPC can.not be accepted. [Para
13] [870-C-H; 871-A-B]                                       C

      2.5. On the peculiar facts and in the circumstances
 of the case, it can be safely concluded that the appellant
 did not share common object of one of the members of
 the unlawful assembly to cause death of R. The appellant
 cannot be reasonably attributed with knowledge that D
 there was likelihood of commission of murder of R,
 because no altercation or quarrel had taken place
 between R and th& accused K nor there was any enmity
 between the appellant and R. Under the circumstances, ·
 the conviction of the appellant u/s. 302/149 IPC for E
 causing death of deceased R, is not well-founded and is
·set aside. The conviction of the appellant u/s. 307/149 IPC
 for attempting to commit murder of injured S; and u/s.
 323/149 IPC and u/s. 148 IPC is amply borne out from the
 evidence on the record. The senten~es imposed on the F
 appellant for commission of said offences are just and
 proper and no case is•made out to interfere with the same.
 [Paras 13 and 14) [871-C-E; 872-A]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal G
No. 879 of 2007.

    From the Judgment & Order dated 21.8.2006 of the High
Court of Punjab & Haryana at Chandigarh in Crl. A.No. 277-
DB of 2004.
                                                             H
    860      SUPREME COURT REPORTS                 [2010] 4 S.C.R.

A         Gaurav Agrawal for the Appellant.

        Rajeev Gaur 'Naseem', Kamal Mohan Gupta for the
    Respondent.

          The Judgment of the Court was delivered by
B
          J.M. PANCHAL, J. 1. This appeal, by grant of special
    leave, is directed against judgment dated August 21, 2006,
    rendered by Division Bench of High Court of Punjab and
    Haryana at Chandigarh in Criminal Appeal No. 277-DB of
c   2004, whereby the High Court has dismissed the appeal filed
    by the appellant and confirmed judgment dated January 19,
    2004, passed by the learned Sessions Judge, Sonipat in
    Sessions Case No. 21 of 1999/2003 convicting the appellant
    (1) under Section 302 read with Section 149 of Indian Penal
J   Code (IPC) and sentencing him to R.l. for life and fine of Rs.3,
    0001- in default R.I. for two years, (2) under Section 307 read
    with Section 149 IPC and sentencing him to R.l. for seven years
    and fine of Rs.2, 000/- in default R.I. for one year, (3) under
    Section 323 read with Section 149 IPC and sentencing him to
E   R.I. for one year and (4) under Section 148 IPC and sentencing
    him to R.I. for two years.

        2. The facts emerging from the record of the case are as
    under: -

F      Shale Ram is a resident of Village Jagsi. He has
  constructed shops on Bus Adda of Village Jagsi. There is a
  liquor vend in one of the shops constructed by him, while one
  shop, i.e., tea stall was being run by his son Sanjay and nephew
  Rajesh, son of Balbir. Two other shops are lying vacant and
G there is land behind these shops for tethering the cattle.
  According to the prosecution case a civil suit between Shale
  Ram and the appellant regarding the land was pending since
  long time. The dispute relating to land was referred to
  Panchayat of the village. It was the claim of Shale Ram that the
H said dispute was settled by the Panchayat but thereafter also
        DAYA KISHAN v. STATE OF HARYANA                     861
                [J.M. PANCHAL, J.]
the members of the family of the appellant were. bearing a A
grudge against him and his family. The incident in question took
place on November 30, 1998. At about 7.00 P.M. on the said
date Sanjay and nephew of Shale Ram were sitting in the shop
when accused No. 1 Krishan, son of the·appellant, came to the
shop and asked for some goods. The goods were given by B
Sanjay to him. When Sanjay demanded money, an altercation
ensued. Krishan threatened Sanjay that he would burn him.
Krishan went back to his house, which was just behind the shop
and after a short time (1) Krishan, (2) Pohla@ Sat Narayan,
both sons of the appellant Daya Kishan, (3) the appellant Daya c
Kishan himself, (4) Ajmer and (5) Raja, both sons of Lalchand
Bairagi, came there. They raised lalkara saying that Sanjay
would not be spared by them. Pohla was armed with a gun
whereas Ajmer was armed with Jelli and other accused
including the appellant were armed with lathi. On coming to the D
place of incident, Pohla at once fired a shot at Rajesh from his
gun, which hit on the chest of Rajesh. When Sanjay went to the
 rescue of Rajesh, Pohla fired at Sanjay as a result of which
 Sanjay sustain~· injuries. The appellant gave a lathi blow on
the right eye of the informant Shale Ram whereas other E
 accused, namely, Ajmer caused injury to the first informant with
 a jelli and Krishan gave a lathi blow on the wrist of the informant.
The other assailants caused injuries to the informant's
 daughters, namely, Kamlesh and Meena and wife Kishni and
 left. The injured were taken to Health Centre, Gohana from F
where they were referred to PGIMS, Rohtak. When they
 reached PGIMS Hospital, Rohtak, Rajesh was declared brought
 dead whereas others were admitted to the hospital. The first
 informant Shale Ram had also caused injury to the appellant in
 self-defence. The Head Constable on duty at PGIMS Hospital, G
 Rohtak, had informed the police station about the injured having
 been admitted in the hospital for treatment. Therefore, ASI Ram
 Prakash went to PGIMS Hospital and recorded the statement
 of Shale Ram. The ASI sent the statement to P.S. Baroda for
  registration of FIR. At the police station, FIR was registered H
    862     SUPREME COURT REPORTS                [2010] 4 S.C.R.


A   against the accused for commission of offences punishable
    under Sections 148, 149, 323, 307 and 302 IPC as well as
    under Sections 27, 54 and 59 of the Arms Act.

        3. The Investigating Officer recorded statements of the
  witnesses, who were found to be conversant with the facts of
8
  the case. Inquest was held on the dead body of the deceased
  and arrangements were made by the ASI for conducting post
  mortem examination on the dead body of the deceased. On
  completion of the investigation the appellant and three other
C accused were charge-sheeted in the court of learned Judicial
  Magistrate, First Class, Gohana for commission of offences
  punishable under Sections 148, 149, 323, 307 and 302 IPC
  as well as Sections 27, 54 and 59 of Arms Act. As the offences
  punishable under Sections 307 and 302 IPC are exclusively
  triable by Court of Sessions, the case was committed to
D Sessions Court, Sonepat for trial. In the Charge-sheet it was
  mentioned that accused Sat Narayan was absconding and
  declared proclaimed offender. Subsequently, he was arrested
  and a supplementary challan was submitted resulting into
  registration of Sessions Case No. 122 of 1999.
E
        4. The learned Sessions Judge framed charge against the
  appellant and other accused for commission of offences
  punishable ·under Sections 148, 149, 323, 307 and 302 IPC.
  The same was read over and explained to them. They pleaded
F not guilty to the same and claimed to be tried. The prosecution,
  therefore, examined several witnesses and produced
  documents in support of its case against the appellant and
  others. In his statement. under Section 313 accused Krishan
  denied all the allegations levelled against him by the
G prosecution. He stated that when he was present in his house
  with his father Daya Kishan, i.e., the appellant and ladies,
   Sanjay, who was armed with Gandasa along with 20 to 25
  persons armed with weapons came to his house and raised
   lalkara to teach a lesson to them. According to him Sanjay gave
H Gandasa blow to him and other persons who were in the house
       DAYA KISHAN v. STATE OF HARYANA                    863
               [J.M. PANCHAL, J.]
and therefore in the defence of himself (Krishan) and other       A
members of the family, his father Daya Kishan ('the appellant'
therein) fired a shot from a gun. Krishan further mentioned in
his statement that other accused namely Ajmer, Sat Narayan
and Raja were not present in the house.
                                                                  B
    Ajmer in his further statement stated that he was not
present at the time of occurrence and was falsely implicated.

     The appellant in his statement under Section 313 of
Cr.P.C. denied the allegations of the prosecution and
mentioned that when he was present in his house along with        C
his son Krishan and ladies, Sanjay, who was armed with
Gandasa and came with 20 to 25 other persons armed with
weapons came to his house. According to him, after raising
lalkara to teach him and others a lesson, Sanjay gave Gandasa
blow to him and other persons and, therefore, to rescue him       D
and his son, Krishan, he fired a shot from a gun and other
persons, namely, Ajmer, Raja and Sat Narayan were not
present at all.

    Accused Raja denied all the allegations of the prosecution    E
and stated that he was not present at the place of incident. In
defence the accused examined (1) Dr. Gaurav Bhardwaj as
DW-1, (2) Bhan Singh as DW-2, (3) Khajan Singh as DW-3
and (4) Dr. S.S. Gupta as DW-4.

     It may be mentioned that after recording of defence          F
evidence was over, three other accused, i.e., Krishan, Ajmer
and Raj Singh alias Raja jumped the bail. Their presence could
not be procured despite the proclamation issued by the learned
Additional Sessions Judge, Sonipat. Ultimately, they were
declared proclaimed offenders and in such circumstances,          G
Sessions Case No.121 of 1999 was tried and decided only
against the present. appellant. However, subsequently Raj
Singh alias Raja was also arrested and his trial was concluded.
Raj Singh was convicted under Section 148/302/307/323 read
                                                                  H
    864      SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A with Section 149 IPC and was visited with sentences
  mentioned in the judgment.

          5. On appreciation of the evidence adduced by the parties,
    the learned Judge came to the conclusion that it was proved
8 by the prosecution beyond reasonable doubt that deceased
    Rajesh had died a homicidal death. Placing reliance on the
    depositions of the injured informant and other witnesses, the
    trial court concluded that it was proved by the prosecution that
    there was no delay in lodging the FIR nor any evidence could
C be produced to suggest that the First Information Report was
    filed after due deliberation or that the accused were falsely
    implicated. After referring to the prosecution story as narrated
  . by the witnesses and defence version as narrated by the
    defence witnesses, the learned Judge came to the conclusion
    that the incident had taken place at the site mentioned by the
0
    prosecution and not at the house of the accused. The learned
    Judge held that the deceased Rajesh had died because of the
    shot fired on him from a gun by Pohla @ Sat Narayan and he
    had also injured witness Sanjay, who had gone to the rescue
    of the deceased Rajesh. According to the learned Judge it was
E not probablised by the defence that the appellant had fired shot
    at deceased Rajesh and Sanjay in exercise of right of self-
   defence whereas the injuries sustained by the appellant were
   explained by the first informant Shale Ram. The learned Judge
   held that it was proved by the prosecution that the accused had
F formed an unlawful assembly, common object of which was to
   cause death of Rajesh and injure other witnesses and, therefore,
   the appellant was liable to be convicted under Section 302 read
   with Section 149 IPC, Section 307 read with Section 149 IPC,
   Section 323 read with Section 149 IPC and Section 148 IPC.
G The iearned Judge accordingly convicted the appellant and
   imposed sentences referred to above. It may be noticed that
   in Sessions Case No.122 of 1999/2003 accused Sat Narayan
   alias Pohla was released on interim bail vide order dated
   5.4.2000. His bail was continued till the next date of hearing.
H
       DAYA KISHAN v. STATE OF HARYANA                      865
               [J.M. PANCHAL, J.]
On 27.4.2000, when Sat Narayan failed to surrender before the       A
court, warrants for his arrest were issued. Despite best efforts,
his presence could not be procured and hence he was declared
proclaimed offender vide order dated 16.1.2001 by the learned
Additional Sessions Judge, Sonipat. Thus, Sessions Case
No.122 of 1999/2003 has remained unconcluded. It was                B
clarified by the learned Sessions Judge that finding of
conviction recorded against the present appellant would not
amount to expression of opinion for or against other remaining
four accused unless they and the prosecution are heard. A
direction was given by the learned Judge that file of this case     c
and that of Sessions Case No.122 of 1999/2003 should be
consigned to the record room but should be restored as and
when the accused who are declared proclaimed offenders are
produced by the police for hearing.
                                                                    D
     6. Feeling aggrieved, the appellant preferred Criminal
Appeal No. 277-DB of 2004 before the High Court of Punjab
and Haryana at Chandigarh. The Division Bench of the High
Court dismissed the same by judgment dated August 21, 2006,
giving rise to the instant appeal.
                                                                    E
     7. This Court has heard the learned counsel for the parties
at length and considered the record of the case summoned
from the trial court.

      8. The fact that the deceased Rajesh died a homicidal         F
death is not challenged before this Court. PW-3, Dr. Vimal
Kumar Sharma stated in his testimony that he had conducted
post mortem examination on the dead body of the deceased
Rajesh on December 1, 1998 at about 2.30 P. M. and found
that there were bluish circular 0.5 cm to 1.00 cm in diameter       G
multiple holes on the anterior surface of chest and upper part
of abdomen in the area of 25 cm x 22 cm starting from 5 cm.
above the nipple and 6 cm. above the umbilicus. Margins were
abraded and inverted. According to him on dissection the
 internal organs were found perforated and pellets had pierced      H
    866      SUPREME COURT REPORTS                   [2010) 4 S.C.R.


A the internal organs. What is mentioned by him is that 26 pellets
  were found on internal examination of the body, which were
  handed over to the police. According to the doctor, the cause
  of death of the deceased was shock and haemorrhage caused
  by fire arm injuries, which were ante mortem in nature and
B sufficient to cause death in ordinary course of nature. The
  testimony of the doctor, who performed autopsy on the dead
  body of the deceased, gets complete corroboration from the
  contents of post mortem notes produced by the prose¢ution.
  On the facts and in the circumstances of the case this Court is
C of the opinion that it is proved beyond pale of doubt that the
  deceased Rajesh had died a homicidal death.

        9. The trial court as well as the High Court .had relied upon
  the testimony of injured informant as well as other witnesses
  and had rightly recorded the conclusion that the deceased had
0
  died because of shot fired at him by the accused Pohla from
  his gun. The Sessions Court referred to the injuries sustained
  by Sanjay and has correctly come to the conclusion that he had
  sustained injuries from the shot fired by the accused Pohla. The
  other findings recorded by the Sessions Court and the High
E Court relating to commission of offences under Sections 323,
  307 and 148 IPC are based on appreciation of reliable
  evidence. The learned counsel for the appellant has failed to
  satisfy this Court that those findings are either perverse or not
  borne out from the evidence. Under the circumstances those
F findings deserve to be confirmed and are hereby confirmed.

       10. The only point argued was that the appellant could not
  have been fastened with the liability under Section 302 read
  with Section 149 IPC for the death of Rajesh, which was
G caused by the accused Pohla @ Sat Narayan. According to
  the learned counsel for the appellant, the prosecution has not
  proved that common object of the unlawful assembly was to
  cause death of the deceased Rajesh, but at best it can be said
  that it was proved by the prosecution that common object of
H the assembly was to teach Sanjay a lesson and in that process
        DAYA KISHAN v. STATE OF HARYANA                       867
                [J.M. PANCHAL, J.]

to injure him and, therefore, the instant appeal should be ··A
accepted. It was maintained that the act of Sat Narayan of firing
a shot at Rajesh was his individual act and, therefore, the
appellant should not have been convicted for murder of Rajesh
with the aid of Section 149 I PC. The learned counsel
emphasised that the prosecution has failed to prove that the B
appellant knew that death of Rajesh was likely to be caused
by any member of the unlawful assembly in prosecution of the
common object because common object of the unlawful
assembly was to teach a lesson to PW-10, Sanjay and,
therefore, the conviction of the appellant under Section 302 with c
the aid of Section 149 IPC should be set aside.

      11. The learned counsel for the State contented that the
appellant himself armed with a lathi was a member of unlawful
assembly, common object of which was to cause death of
                                                                   0
Sanjay as well as those who were accompanying him and,
therefore, it is not correct to say that the provisions of Section
149 IPC would not apply to the facts of the case. According to
the learned counsel for the State, the appellant, who was a
member of the unlawful assembly, had come with other four
accused and was armed with lathi and after fatal injury was E
caused to Rajesh and Sanjay was seriously injured with others,
the appellant had left the place of incident with other accused
and, therefore, the Sessions Court and the High Court
committed no error in convicting the appellant under Section F
302 with the aid of Section 149 IPC for causing death of
deceased Rajesh. What was maintained was that sufficient
evidence was brought on record by the prosecution to prove
that the appellant had known that death of the deceased Rajesh
was likely to be caused by any member of unlawful assembly
in prosecution of the common object and, therefore, well G
recorded conviction of the appellant under Section 302 read
with Section 149 IPC should be upheld by this Court.

       12. Section 149 IPC creates a constructive or vicarious
liability on the members of the unlawful assembly for the unlawful   H
    868     SUPREME COURT REPORTS                   [2010) 4 S.C.R.


A acts committed pursuant to the common object by any other
  member of that assembly. The basis of the constructive guilt
  under Section 149 IPC is mere membership of the unlawful
  assembly, with the requisite common object or knowledge. This
  Section makes a member of the unlawful assembly responsible
B as a member for the acts of each and all, merely because he
  is a member of an unlawful assembly. 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
c 149. There are two essential ingredients of Section 149, viz.,
  (1) commission of an offence by any member of an unlawful
  assembly and (2) such offence must have been committed in
  prosecution of the common object of that assembly or must be
  such as the members of that assembly knew to be likely to be
o committed. Once the court finds that these two ingredients are
  fulfilled, every person, who at the time of committing that offence
  was a member of the assembly has to be held guilty of that
  offence. After such a finding, it would not be open to the court
  to see as to who actually did the offensive act nor it would be
E open to the Court to require the prosecution to prove which of
  the members did which of the offensive acts. Whenever a court
  convicts any person of an offence with the aid of Section 149,
  a clear finding regarding the common object of the assembly
  must be given and the evidence discussed must show not only
F the nature of the common object but that in pursuance of such
  common object the offence was committed. There is no manner
  of doubt that before recording the conviction under Section 149
  IPC, the essential ingredients of Section 149 IPC must be
  established.
G      13. Applying the abovementioned well settled principles to
  the fac~s of the present case, this Court finds that the
  prosecution has not led any evidence to prove that the accused
  party had any grievance or grudge against the deceased
  Rajesh, who was nephew of the first informant Shale Ram. The
H only fact, which can be held to be proved by the prosecution,
        DAYA KISHAN v. STATE OF HARYANA                     869
                [J.M. PANCHAL, J.]
is that the accused Krishan had an altercation with Sanjay A
relating to purchase of some goods, after which Krishan had
threatened Sanjay and had then left the shop and come back
within a short duration with other four accused including the
appellant, who were variously armed. The further fact proved
by the prosecution is that immediately on coming to the place 8
of incident, the son of the appellant named Sat Narayan @
Pohla had fired a shot at Rajesh without any provocation or
previous enmity or any other reason. It may be mentioned that
the defence had tried to prove enmity between the first
informant and the appellant but the substantive evidence of first c
informant Shale Ram, examined as PW-4, and injured Sanjay,
examined as PW-10, in fact goes to prove that there was no
such dispute relating to the land and/or enmity between the first
informant Bhale Ram and the appellant. The record does not
indicate that any altercation had taken place between Krishan, o
who is son of the appellant, and deceased Rajesh when
 accused Krishan had gone to the shop of injured Sanjay for
purchasing certain articles. In fact, the alterc~tion had taken
place between Krishan and injured Sanjay. Though it was the
 case of the prosecution that after reaching the place of incident, E
the members of the unlawful assembly had given lalkara before
the attack, the first informant in his substantive evidence before
the court has not mentioned anything about the said lalkara
though it was so mentioned by him in his FIR. Thus, the fact
that lalkara was made before the attack will have to be F
disbelieved. If the evidence of the injured witness is appreciated
in the above background, it becomes evident that no evidence
 could be adduce1d by the prosecution to establish that common
 object of the unlawful assembly was to do away with Rajesh or
 cause any injury to him. As mentioned earlier the evidence G
 clinchingly establishes that immediately after reaching the place
 of incident a shot was fired by accused Pohla from his gun. It
 would have been a different matter if Rajesh had suffered
 injuries in some other manner, e.g., Rajesh had tried to
 intervene when Sanjay was being attacked and was shot at. In H
    870      SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A such circumstances provisions of Section 149 IPC could have
  been well invoked. There is no evidence regarding meeting of
  minds or formation of the common object even at the spur of
  the moment, when Pohla immediately after reaching the place
  of incident shot at the deceased Rajesh. There is no evidence
B suggesting that the appellant said something to indicate that
  he wanted the deceased to be done away with. There is nothing
  to establish that the appellant knew that Pohla would cause fatal
  injuries to the deceased, though the appellant must have
  anticipated that Pohla would cause injuries to Sanjay. In the
c present case, no overt act is attributed to the appellant so far
  as the deceased is concerned. Mere fact that the appellant was
  armed with a lathi by itself would not prove that he shared
  common object with which the main accused Pohla was
  inspired. The prosecution has not led the evidence to establish
o nexus between the common object and the offence committed.
  The appellant, being father of the accused Krishan, who had
  an altercation earlier with injured Sanjay, had accompanied
  Krishan, which can be termed as natural conduct on the part
  of the appellant. It is relevant to notice that in the course of the
E incident the appellant himself had sustained serious injuries.
  The testimony of PW-14, Dr. Rajesh Saini indicates that he had
  examined the appellant Daya Kishan on December 1, 1998 at
  2.30 P.M. and noticed abrasion of 1.5 cm x 0.2 cm on anterior
  surface of left leg and swelling around the abrasion. According
F to him the movements of leg were restricted and he had also
  found lacerated wound of 6 cm x 0.3 cm on left parietal region.
  The testimony of Dr. Gaurav Bhardwaj, examined as DW-1,
  makes it clear that the appellant had sustained fracture of both
  bones of the left leg for which POP cast was given. As noticed
G earlier the first informant Shale Ram has mentioned in his First
  Information Report itself that he had caused injuries to the
  appellant in exercise of his right of self-defence. The record
  does not indicate that the injuries sustained by the appellant
  were caused by deceased Rajesh. It is not the case of the
H prosecution that the appellant retaliated or asked others to
        DAYA KISHAN v. STATE OF HARYANA                   871
                [J.M. PANCHAL, J.]

attack the first informant despite having received serious A
injuries, which would indicate that the appellant had no grudge
nor shared the object with which the accused Pohla had fired
shot at the deceased Rajesh. The only circumstance on the
basis of which the prosecution wants to hold that the common
object of the unlawful assembly was to murder Rajesh is that B
Pohla had a gun and the appellant was a member of an unlawful
assembly. The test for application of Section 149 IPC as
suggested by the prosecution cannot be accepted. On the
peculiar facts and in the circumstances of the case it can be
safely concluded that the appellant did not share common C
object of one of the members of the unlawful assembly to cause
death of Rajesh. The appellant cannot be reasonably attributed
with knowledge that there was likelihood of commission of
murder of Rajesh, because no altercation or quarrel had taken
place between Rajesh and the accused Krishan nor there was       o
any enmity between the appellant and Rajesh. Under the
circumstances, this Court is of the opinion that the conviction
of the appellant recorded under Section 302 read with Section
 149 IPC for causing death of deceased Rajesh is not well-
founded and is liable to be set aside. As far as conviction of E
the appellant under Section 307 read with Section 149 IPC is
concerned, this Court finds that the said conviction recorded
 by the Sessions Court and affirmed by the High Court is amply
borne out from the evidence on the record. So also the learned
counsel for the appellant could not demonstrate that the F
conviction of the appellant under Section 323 read with Section
149 IPC and under S'ection 148 IPC are contrary to the
evidence on record. Th~refore, those convictions will have to
be upheld.

      14. The net result of the above discussion is that the     G
appeal filed by the appellant partly succeeds. His conviction
under Section 302 read with Section 149 IPC for causing death
of the deceased Rajesh recorded by the Sessions Court and
affirmed by the High Court is hereby set aside. His conviction
under Section 307 read with Section 149 IPC for attempting       H
    872    SUPREME COURT REPORTS                [2010] 4 S.C.R.

A to commit murder of injured Sanjay, under Section 323 read
  with Section 149 IPC and under Section 148 IPC is confirmed.
  This Court also finds that the sentences imposed on the
  appellant for commission of abovementioned offences are just
  and proper and no case is made out to interfere with the same.
B
       15. Subject to above observations, the appeal stands
  disposed of.

   N.J.                                  Appeal partly allowed.