Holding

The Supreme Court held that the existence of a common object was proved and Section 149 IPC rightly applied, upholding the convictions under Section 302 read with Section 149.

Summary

The case involved eight accused who arrived together in a jeep, surrounded the deceased and assaulted him – one accused (R) delivering fatal knife blows while the others used hockey sticks, iron rods and pipes. R was convicted under Section 302 IPC and the remaining seven under Section 302 read with Section 149 IPC. The appellants challenged the conviction, arguing that no common object was proved, that the FIR was delayed, and that witness testimony was unreliable. The Supreme Court examined the nature of unlawful assembly, the concept of a common object versus common intention, and the requirement of constructive liability under Section 149. Relying on eye‑witness evidence that all seven were armed, arrived together, prevented rescue and acted in concert, the Court held that a common object existed and Section 149 applied. Consequently, the convictions under Section 302 r/w Section 149 were upheld and the appeals were dismissed.

Issues considered

Whether the facts established a 'common object' of an unlawful assembly sufficient to invoke Section 149 IPC against the seven appellants.
Whether the delay in sending the FIR to the magistrate and the timing of witness statements vitiated the prosecution case.
Whether the prosecution needed to prove a specific overt act by each accused to sustain conviction under Section 149.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 34

Subjects

murderunlawful assemblySection 149 IPCcommon objectconstructive liabilitydelay in FIRwitness testimonyIndian Penal CodeSupreme Court

Judgment

A SUNIL KUMAR AND ANR. .. ,.
v.
STATE OF RAJASTHAN

JANUARY 19, 2005

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Penal Code, I 860 : ..
Section 302 rlw 149-Murder-Unlawful assembly-Common object- •
c Eight accused arriving together in a jeep and surrounding deceased-Jeep
kept in starting position-One accused inflicting several blows with knife on
abdomen ofdeceased-Other seven, i.e. appellants assaulting him with hockey
sticks, iron rods and pipes-Persons trying to intervene, threatened with dire
consequences-Accused fleeing after the incident in the same jeep-Conviction
D ofappellants under S.302 r/w S. I 49-Justification-Held, Courts below justified
in applying S.149 to the case of appellants and convicting them-When several
persons armed with weapons assault a victim, all of them may not take part y

in the actual assault-Hence, it is not necessary to establish specific overt act
by each accused. .
E Section 149-Applicability of-Constructive liability sine qua non-
Emphasis on common object and not common intention-Common object,
when formed.

Section 149 and Section 34--Common object and Common intention-
Distinction between-Discussed.
F
Criminal trial-FIR-Delay in sending FIR to Magistrale-No universal •
rule that in all such cases, prosecution version becomes unreliable-Where on
facts, no question was put to Investigating Officer as to the reason for the
"
alleged delay in sending the FIR and investigation was taken up immediately,
held, no adverse inference could be drawn.
G
Words and Phrases-"Object"-Meaning of
~
According to the prosecution, deceased, nephew of the informant, was
surrounded by eight accused persons. One of the accused, namely 'R' inflicted '
H 612
SUNIL KUMAR v. STATE OF RAJASTHAN 613
... A several blows on the abdomen of the deceased with knife while the other seven, A
i.e. the appellants assaulted him with hockey sticks, iron rods and pipes.
Thereafter the accused fled away in a red jeep in which they had come
1 together. Sessions Judge convicted 'R' under Section 302 IPC and the other
seven accused under Section 302 r/w Section 149 IPC. High Court upheld
the conviction. R did not prefer any further appeal, while the rest of the
accused filed the present appeals. B

In appeals to this Court, the pivotal question raised related to
). applicability of Section 149 IPC, with the appellants pleading that there is no
evidence that any common object was pursued by them; that even if it is
+
conceded as claimed by the prosecution that they came in the same jeep and
were armed with various weapons that does not per se establish that they
c
shared a common object, and that the prosecution has failed to prove that in
pursuance of such common object 'R' who allegedly gave the fatal knife blows
' carried out the objective of the alleged unlawful assembly; and that the High
Court did not properly consider various pleas which were raised before it.
D
Dismissing the appeals, the Court
...
HELD : 1.1. The courts below were justified in applying Section 149
IPC to the case of the appellants. They have been rightly convicted under
""
Section 302 read with Section 149 IPC. (623-E)
E
1.2. Section 149 IPC has its foundation on constructive liability which
is the sine qua non for its operation. The emphasis is on the comrron object
and not on common intention. Mere presence in an unlawful assembly cannot
render a person liable unless there was a common object and he was actuated
by that common object and that object is one of those set out in Section 141.
1619-DI F
..
.,.. 1.3. The word 'object' means the purpose or design and, in order to
make it 'common', it must be shared by all. A common object may be formed
by express agreement after mutual consultation, but that is by no means
necessary. It may be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt it Once formed, it
G
need not continue to be the same. It may be modified or altered or abandoned
at any stage. The expression 'in prosecution of common object' as appearing
in Section 149 has to be strictly construed as equivalent to 'in order to attain
the common object'. It must be immediately connected with the common
object by virtue of the nature of the object There must be community ofobject H
614 SUPREME COURT REPORTS [2005] I S.C.R.

A and the object may exist only up to a particular stage, and not thereafter. • •
Members of an unlawful assembly may have community of object up to
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
B 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.
(619-F-H; 620-A-B[

1.4. 'Common object' is different from a 'common intention' as it does
C 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 being five
or more and that they act as an assembly to achieve that object 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 the
D members at or near the scene of the incident. (620-C; 620-D-E[

1.5. The word 'knew' used in the second limb of Section 149 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
E offence which the members of the unlawful assembly knew was likely to be
committed in prosecution of the common object (621-C-DI

Chikkarange Gowda and Ors. v. State ofMysore, AIR (1956) SC 731 and
Chandra and Ors. v. State of UP. and Anr.. (2004) 5 SCC 141, referred to.
F 2. It has been established by the evidence of the eye witnesses that all
the eight accused persons were armed with weapons, they surrounded the
deceased and in fact prevented others from going near the deceased to rescue
him. They had arrived together in the same jeep and left by the jeep after
the incident. The jeep was kept in starting position. Significantly the defence
G in the cross examination brought out the fact that the accused persons
surrounded the deceased and prevented those who wanted to go to rescue
the deceased by threatening them with dire consequences. The trial court and
the High Court have analysed the factual position in great detail and have
pointed out the aforesaid relevant factors. Therefore, there is no infirmity in
the ronclusion of the courts below about the applicability of Section 149 IPC.
H (621-H; 622-A-C)
SUN IL KUMAR v. STATE OF RAJASTHAN 615
.. > 3. It cannot be laid down as a rule of universal application that whenever A
there is some delay in sending the FIR to the concerned Magistrate, the
prosecution version becomes unreliable. It would depend upon the facts of
each case. In the instant case as appears from the records the investigation
was taken up immediately and certain steps in investigation were tak~n.
Therefore, the plea that there was no FIR in existence at the relevant time
has no substance. Additionally, no question was asked to the investigating B
officer as to the reason for the alleged delayed dispatch of the FIR. Had this
been done, investigating officer could have explained the circumstances. That
.Ji
having not been done, no adverse inference can be drawn. 1622-D-EJ
.+
4. So far as the delayed recording of statement of the witnesses is
concerned, again no question was put to the investigating officer specifically
c
as to why there was delay in recording the statement. On the contrary, the
witnesses themselves have indicated as to why there was delay. The plea of
the appellants in this regard, therefore, has no substance. 1622-FJ

5. Out of the witnesses who were claimed to be eye witnesses, PW-3 and D
PW-5 were not relatives and in any event belonged to some other places. Even
... if PWs. I, 2 and 4 were related to the deceased, PW-I was a traffic constable
and as the evidence on record clearly establishes he was posted at a place
....
nearby the place of occurrence as a traffic constable. Therefore, his presence
cannot be doubted. Other witnesses have also stated as to how they happened
to be at the spot of occurrence. That being so, the plea that independent E
witnesses have not been examined is without any substance. Two independent
witnesses have been examined who have lent corroboratio.n to the evidence
of the relatives. 1622-H; 623-A-BJ

6. The criticism levelled that the relatives did not come forward to save
F
the deceased is also without any substance, in view of the evidence to the effect

.. .>
that accused persons threatened those who wanted to intervene with dire
consequences. 1623-CJ

7. Where a group of assailants who were members of the unlawful
assembly proceeds to commit the crime in pursuance of the common object G

-
of that assembly, it is often not possible for witnesses to describe the actual
part played by each one of them and when several persons armed with
.,.,, weapons assault the intended victim, all of them may not take part in the
actual assault. Therefore, it was not necessary for the prosecution to establish
as to the specific overt act done by each accused. 1623-DJ
H
616 SUPREME COURT REPORTS (2005] I S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 123 ....
of 2005.

From the Judgment and Order dated I0.11.2003 of the Rajasthan High
Court in D.B. Crl. A. No. 646 of 2000.
WITH
B
Crl. A. Nos. 124, 125, 126, 127, and 128 of 2005.
K.V. Mohan, Yogesh Kumar Dullar, Ajay Bhalla, Anoop Khullar, A.K.
Yadav and R. Ramesh Kumar for the appellant in Crl. A. No. 123/2005. J.

.;.

c in Crl.D.S. Chaudhary, L.S. Chaudhary and V.N. Raghupathy for the Appellant
A. No. 124/2005.
S.R. Bajwa, Sushi! Kumar Jain, H.D. Thanvi, A.P. Dhamija, Ram Niwas,
Puneet Jain and Ms. Pratibha Jain for the Appellant in Crl. A. No. 125/2005.
Mulkh Raj Vij, (A.C.) for the appellant in Crl.A.Nos.126-128/2005.
D Jagdeep Dhankhar, Anil Karnwal, Dr.K.P.S. Dalal and Dr. Sushi!
Balwada for the Respondent/Caveator Manish Kumar and Ansar Ahmed
y
Choudhary for State of Rajasthan.
The Judgment of the Court was delivered by ~

E ARIJIT PASA YAT, J. Leave granted.

All these appeals are directed against common judgment of the Rajasthan
High Court by which the appeals preferred by eight accused persons including
present appellants were disposed of. While Ramesh, son of Harish Chandra
was convicted for offence punishable under Section 302 of the Indian Penal
F Code, 1860 (in short the 'IPC') and was sentenced to undergo imprisonment
for life and to pay a fine of Rs. l,000 with default stipulation, the other seven
i.e. present appellants4 were convicted for offence punishable under Section
,.'
302 IPC read with Section 149 IPC and were each sentenced to undergo
imprisonment for life and to pay a fine of Rs. 1,000 each with default
stipulation. Each of the eight accused persons were convicted in terms of
G Section 148 !PC and sentenced to undergo two years' rigorous imprisonment.
Ramesh, son of Harish Chandra who was convicted in terms of Section 302
!PC, has not preferred any appeal, while the rest seven accused persons have ,..
preferred the present appeals. 'I

Prosecution version as unfolded during trial is as follows :
H
SUNIL KUMAR v. STATE OF RAJASTHAN [PASAYAT, J.] 617
.. _, On October 29, 1998 around 11 A.M. informant Yogendra Singh (PW- A
. 1) submitted written report to one Phool Chand, Police Officer at Roadways
Bus stand Jhunjhunu. It was, inter alia, stated in the report that on the said
day at about 10.00 A.M. the informant was standing at the Traffic point near
bus stand. Two other witnesses i.e. Surendra and Ajay were also there.
Suddenly they heard ruckus coming from the front of a tea stall nearby. All
the three rushed to the spot where they saw that the nephew of informant, B
namely, Sumer Singh (hereinafter referred to as the 'deceased') was surrounded
by the appellants who were equipped with hockies, iron rods and pipes etc.,
> while Ramesh Kumar had a knife. Ramesh Kumar inflicted several blows on
"t the abdomen of the deceased with knife and others belaboured him with
hockies, iron rods and pipes. After causing injuries to the deceased the c
assailants fled away from the scene of occurrence in a red jeep bearing No.
RJ-l 9/C-6255 in which they had come together. The incident had been
witnessed by other witnesses Chandra Shekhar and Krishna Kumar. It was
also alleged in the report that deceased was belaboured on account of previous
enmity. On the basis of said report, formal FIR was registered at Police
Station Jhunjhunu for offences punishable under Sections 302, 147, 148 and D
149 !PC and investigation commenced. Site plan of the incident was drawn.
" Deceased was subjected to post mortem examination. Blood stained clothes
-J of the deceased were seized. Control soil and blood stained soil were lifted
from the place of incident. The accused persons were taken into custody and
at their instance certain weapons as also the jeep got recovered. Charge sheet E
was filed after completion of investigation. Trial was conducted by learned
Sessions Judge, Jhunjhunu. Charges under Sections 147, 148,302 in the
alternate 302/149 !PC were framed against the appellants and Ramesh who
denied the charges and claimed trial. The prosecution in support of its case
examined 21 witnesses and got exhibited 61 documents. In their explanation
under Section 313 of the Code of Criminal Procedure, 1973 (in short the F
,. 'Cr.P.c' .), the accused persons pleaded innocence and stated that the witnesses
" were partisan and were telling lies as they happened to be close relatives of
the deceased and on account of groupism there had been blatant false
implication. On consideration of materials on record learned Sessions Judge
convicted and sentenced the appellants as indicated herein above. All the G
eight accused persons preferred appeals before the High Court which as
noted above dismissed the appeals and upheld the conviction and sentence.
'>f
In support of the present appeals common points were urged by learned
counsel appearing for the various appellants. The pivotal question raised
related to applicability of Section 149 !PC. Additionally, it was submitted H
618 SUPREME COURT REPORTS [2005] I S.C.R.

A that the High Court did not properly consider the various pleas which were .. "
raised i.e. (1) unexplained delay in sending the copy ofFlR to Ilaka Magistrate;
(2) non-examination of independent witnesses; (3) discrepancies in the
evidence of witnesses claimed to be eye witnesses, who in fact were related
to the deceased; and (4) the prosecution witnesses, more particularly the
relatives as to how they happened to be at the place of occurrence at a
B particular time.

It was pointed out that the basic elements necessary to bring in
J.
application of Section 149 !PC did not exist. There "<as no evidence that
there was any common object which was pursued by the appellants. Even if ~

c it is conceded to the position, as claimed by the prosecution that they came
in the same jeep and were armed with various weapons that does not per se
establish that they shared a common object. The prosecution has failed to
prove that in pursuance of such common object Ramesh who is stated to have
given the fatal knife blows carried out the objective of the alleged unlawful
assembly. Out of the five witnesses who were claimed to be eye witnesses
D three were closely related. Their statements also were not recorded immediately
after the investigation stated and in fact were recorded in some cases two
days after, and in one case after about two weeks. The fact that the FIR ~as "
dispatched to the magistrate long after the FIR was lodged itself goes to ~

establish that there was deliberation on the part of the police officials and the
relatives of the deceased including the informant and so called eye witnesses,
E
and the accused persons have been falsely implicated. There was no perceivable
motive for the present appellants to have any animosity towards the deceased.
If the persons who claimed to be eye witnesses were really present at the
spot, their normal and natural conduct would have been to rescue the deceased
which has not been done. Even though the prosecution version is that
F indiscriminately the appellants assaulted the deceased, only three abrasions
were found. As is evident from the conclusions of the trial court, the second •
part of Section 149 !PC which relates to knowledge of likelihood that alleged _,,
offence would be committed there was no definite finding recorded in that
regard. From the evidence no common object is discernible. The object may
have been at the most, even if it is accepted that same existed, to chastise the
G deceased, rough him up or cause some hurt. These probabilities have not
been ruled out by the prosecution. It has not been shown that the real objective
was murder of the deceased. There is no evidence to show that the present ¥
appellants knew that murder was likely to be committed. The conclusion of
the trial court and the High Court that the present appellants facilitated the
H killing or aborted efforts of others to save the deceased are not supported by
SUNIL KUMAR v. STATE OF RA.IASTHAN [PASAYAT, J.] 619
-+ .J. any cogent evidence. The genesis of the incident is shrouded in mystery and A
there is no proximate cause established as to why the accused appellants
would do away with the life of the deceased by pursuing a common objective.
It was submitted that even if there was any pre-conceived object, that may
at the most attract Section 304 IPC and not Section 302 IPC.

In response, learned counsel for the State submitted that the statements B
of the PWs. clearly establish the role played by the appellants. Their conduct
before the incident, during the incident and after the incident clearly establishes
... the common object which was being pursued by them. No specific question
was put to the LO. as to why there was delay, as claimed by the appellants
and on the contrary witnesses themselves have indicated the reasons as to
why they were at the spot of incident and why their statements were recorded
c
after some time. To similar effect is the plea of learned counsel appearing for
the informant.

The pivotal question is applicability of Section 149 !PC. Said provision
has its foundation on constructive liability which is the sine qua non for its D
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 was actuated by that common
4
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 to determine is E
whether the assembly consisted of five or more persons and whether the said
persons entertained one 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 such an F
.) 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 G
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 or abandoned at any stage. The expression 'in prosecution of H
620 SUPREME COURT REPORTS (2005) I S.C.R.

A common object' as appearing in Section 149 have 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 up to a
particular stage, and not thereafter. Members of an unlawful assembly may
B have community of object up to 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, IPC may be different on different members of
C 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
more and that they act as an assembly to achieve that object. The 'common
D 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
E 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 succe5sful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful. It
F 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
G at the spot eo instante.

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
H must be connected immediately with the common object of the unlawful
SUNJL KUMAR v. STATE OF RAJASTHAN [PASAYAT, J.] 621
.......
assembly of which the accused was member. Even if the offence committed A
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
set out or desired to achieve is the object. If the object desired by all the
members is the same, the knowledge that is the object which is being pursued B
is shared by all the members and they are in general agreement as to how it
i 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. c
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 the time of
or before or after the occurrence. 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 D
'f 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. That, however, does not make the converse proposition true; there
may be cases which would come within the second part but not within the E
first part. The distinction between the two parts of Section 149 cannot be
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 the first part but offences committed F
.,(
in prosecution of the common object would also be generally, if not always,
be within the second part, namely, offences which the parties knew to be
likely to be committed in the prosecution of the common object. (See
Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC 731).

These aspects were recently highlighted in Chandra and Ors. v. State
G
of UP. and Anr., [2004] 5 SCC 141.
...,
In the factual scenario noticed above, the trial court and the High Court
have referred to several relevant aspects to hold that Section I49 !PC is
applicable. H
622 SUPREME COURT REPORTS [2005] I S.C.R.
.I. ...
A It has been established by the evidence of the eye witnesses that all the
eight accused persons were anned with weapons, they surrounded the deceased
and in fact prevented others from going near the deceased to rescue him.
They had arrived together in the same jeep and lefi by the jeep after the
incident. One important and relevant factor, which has been noticed by the
trial court and the High Court, is that the jeep was kept in starting position.
B Significantly the defence in the cross examination brought out the fact that
the accused persons surrounded the deceased and prevented those who wanted
to go to rescue the deceased by threatening them with dire consequences. The ,(
trial court and the High Court have analysed the factual position in great
detail and have pointed out the aforesaid relevant factors. Therefore, there is
c no infinnity in the conclusion of the courts below about the applicability of
Section 149 !PC.

Great stress was laid on the alleged delay in dispatch of the FIR to the
Ilaka Magistrate. FIR was recorded on 29.10.1999 at about 11.00 A.M. and
reached the Magistrate on 30. l 0.1999 at about 12 noon. It cannot be laid
D down as a rule of universal application that whenever there is some delay in
sending the FIR to the concerned magistrate, the prosecution version becomes ~

unreliable. It would depend upon the facts of each case. In the instant case
as appears from the records the investigation was taken up immediately and ..
certain steps in investigation were taken. Therefore, the plea that there was
no FIR in existence at the relevant time has no substance. Additionally, no
E
question was asked to the investigating officer as to the reason for the alleged
delayed dispatch of the FIR. Had this been done, investigating officer could
have explained the circumstances. That having not been done, no adverse
inference can be drawn.

F So far as the delayed recording of statement of the witnesses is
concerned, here again no question was put to the investigating officer ...
specifically as to why there was delay in recording the statement. On the .It
contrary, the witnesses themselves have indicated as to why there was delay.
The plea of the appellants in this regard, therefore, has no substance.

G Learned counsel for the appellants have also pointed about that though
the place where the alleged incident took place, was in a busy locality, no
independent witness was examined. It was also submitted that the relatives .,
have not explained as to how they happened to be at the spot. Here again the
factual position is otherwise. Out of the witnesses who were claimed to be
eye witnesses, Chandra Shekhar (PW-3) and Narendra singh (PW-5) were
H
SUNIL KUMAR v. STATE OF RAJASTHAN [PASAYAT, J.] 623
not relatives and in any event belonged to some other places. Even if PWs. A
I, 2 and 4 were related to the deceased, PW- I was a traffic constable and as
the evidence on record clearly establishes he was posted at a place nearby the
place of occurrence as a traffic constable. Therefore, his presence cannot be
doubted. Other witnesses have also stated as to how they happened to be at
the spot of occurrence. That being so, the plea that independent witnesses
have not been examined is without any substance. Two independent witnesses B
have been examined who. have lent the corroboration to the evidence of the
relatives.

The criticism levelled that the relatives did not come forward to save
the deceased is also without any substance, in view of the evidence as noted C
above to the effect that accused persons threatened those who wanted to
intervene with dire consequences.

Where a group of assailants who were members of the unlawful assembly
proceeds to commit the crime in pursuance of the common object of that
assembly, it is often not possible for witnesses to describe the actual part D
played by each one of them and when several persons armed with weapons
assault the intended victim, all of them may not take part in the actual assault.
Therefore, it was not necessary for the prosecution to establish as to the
specific overt act was done by each accused.

In view of the factual position as noticed by the courts below and the E
legal principles governing application of Section 149 !PC, the inevitable
conclusion is that courts below were justified in applying Section 149 !PC to
the case of the appellants. They have been rightly convicted under Section
302 read_ with Section 149 !PC. That being so, the appeals deserve dismissal
which we direct.

B.B.B. Appeals dismissed.

'y