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2017 DIGILAW 2884 (ALL)

SWAMI NATH v. STATE OF UTTAR PRADESH

2017-12-08

ANIL KUMAR SRIVASTAVA II, PRASHANT KUMAR

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JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. Instant appeal has arisen against the judgment and order dated 31.7.1985, passed by learned Additional Sessions Judge, Gonda in Session Trial No. 197/84, arising out of case crime no. 482/83, police station Kotwali City, District Gonda, whereby accused Swami Nath and Jamuna Prasad were convicted, under section 302/149 IPC and sentenced to imprisonment for life, under section 148 IPC and sentenced to one year rigorous imprisonment and under section 324/149 IPC and sentenced to two years rigorous imprisonment. Accused Ganga Prasad, Ram Nath, Kripa Ram and Satya Ram were convicted under section 302/149 IPC and sentenced to imprisonment for life, under section 147 IPC sentenced to one year rigorous imprisonment and under section 324/149 IPC sentenced to two years rigorous imprisonment. All the sentences were directed to run concurrently. 2. Accused-appellant Swami Nath, Jamuna Prasad and Ganga Prasad died during the pendency of the appeal. Their appeal was abated vide order of this Court dated 27.7.2017. Accused No. 6 Satya Ram was declared as juvenile on the date of occurrence vide order dated 12.10.2017, passed by Juvenile Justice Board, Gonda. 3. According to the prosecution version, a written report was lodged by Ram Naresh PW-1 stating that on 26.7.1983 at about 07:00 AM, when he went to the house of Hanuman Ahir to call the labourers whereas his brothers Bhagwati Prasad, Ram Newaz and nephew Deoraj had already reached to their field for sowing paddy crop. Ram Nath, son of Swami Nath accused came at the door of Hanuman Ahir and scuffled with complainant Ram Naresh but some villagers intervened and matter was settled. Ram Nath went to his house while complainant Ram Naresh went towards his field. At about 07:30 AM when the complainant Ram Naresh reached in the field of Girija Saran, accused Swami Nath and his sons Ram Nath, Jamuna, Kripa, Ganga and Satya Ram armed with lathi and spear surrounded him. Swami Nath and Jamuna were armed with spear while others were armed with lathi. They started beating Ram Naresh. Bhagwati Prasad, Ram Newaz and Deoraj came to save him then the accused assaulted them with spears and lathis. On the alarm raised, Shiv Saran of Khamaria Harbans, Tandon alias Satya Nath of Soni Harlal reached the spot, challenged the accused persons whereupon they fled away towards west. They started beating Ram Naresh. Bhagwati Prasad, Ram Newaz and Deoraj came to save him then the accused assaulted them with spears and lathis. On the alarm raised, Shiv Saran of Khamaria Harbans, Tandon alias Satya Nath of Soni Harlal reached the spot, challenged the accused persons whereupon they fled away towards west. Bhagwati Prasad died at the spot whereas Ram Naresh and Ram Newaz suffered injuries. It is further stated that Jamuna Prasad and others have beaten Ayodhya, brother of the complainant about three years back. They were prosecuted and convicted on 22.6.1983. They were released on bail. Due to this enmity they had caused the crime. 4. On the basis of the written report chik FIR was registered at case crime no. 482/83, under sections 147, 148, 149, 302, 307, 323 IPC at Police Station Kotwali Nagar against the accused persons at 08:15 AM. Investigation was handed over to SHO of police station S.I. S.N. Singh Sengar. Injured Ram Naresh and Ram Newaj were sent to district hospital, Gonda for medical examination where they were medically examined by PW-7 Dr. R.C. Chaturseni at 8:30 AM and 10:00 AM on 26.7.1983. Inquest proceedings of the dead body of deceased Bhagwati Prasad were conducted on 26.7.1983 at 09:00 AM by S.I. V.N. Singh accompanied with S.I.S.N. Singh Sengar Investigating Officer. Dead body was sent for postmortem examination which was conducted by PW-8 Dr. M.P. Singh on 07.7.1983 at 03:00 PM. Investigating Officer prepared the site plan of the spot. Blood stained and simple earth was taken into possession. Blood stained earth and underwear of the deceased were sent for chemical examination and serologist report. After concluding the investigation Investigating Officer submitted the charge-sheet against the accused persons. 5. All the accused were charged under section 147, 307/149, 302/149 IPC. Swami Nath and Jamuna were also charged under section 148 IPC. Accused denied the charges and claimed trial. 6. In order to prove its case, prosecution has produced PW-1 Ram Naresh complainant, PW-2 Ram Newaj injured, PW-3 Shiv Saran Tripathi scribe, PW-4 Constable Lal Chand who carried the dead body to mortuary, PW-5 Constable Ghanshyam Tiwari, who has proved the chitthi majroobi, PW-6 SI Ayodhya Prasad Tiwari, subsequent Investigating Officer, PW-7 Dr. R.C. Chaturseni, who has medico legally examined the injured Ram Newaj and Ram Naresh, PW-8 Dr. R.C. Chaturseni, who has medico legally examined the injured Ram Newaj and Ram Naresh, PW-8 Dr. M.P. Singh, who has conducted the postmortem examination of the dead body of Bhagwati Prasad, PW-9 S.N.S. Sengar First Investigating Officer, PW-10 SI Vishwa Nath Singh. 7. In defence, accused have examined DW-1 Krishna Kant Srivastava, clerk of the collectorate Gonda, who has stated that the special report of this case was received in the office of the District Magistrate, Gonda on 26.7.1983 at 06:50 PM. 8. We have heard Shri I.B. Singh, learned senior Advocate and Shri Umesh Verma, learned Additional Government Advocate and perused the record. 9. PW-8 Dr. M.P. Singh has conducted the postmortem examination of the dead body of Bhagwati Prasad on 27.7.1983 at 03:00 PM and found following ante-mortem injuries on his body. 1. Penetrating wound with incised margin on right side neck 2 cm x 1 cm x cavity deep directed downward, just clerical inner end. 2. Penetrating wound 2 cm x 1 cm x cavity deep with incised margin on the left side abdomen, 6.5 cm from umbilicus at one O' Clock position. 3. Penetrating incised wound 0.5 cm x 0.5 cm x cavity deep on left side abdomen 2 cm from umbilicus at 3 O' clock position. 4. Penetrating incised wound 1 cm x 0.5 cm x cavity star shaped on left side abdomen 1.5 cm below injury No. 3. 5. Penetrating incised wound 1 cm x 0.5 cm x cavity deep on left side abdomen 4.5 cm from umbilicus at 5 O' clock position. 6. Penetrating incised wound 1 cm x 0.5 cm muscle deep on the left inguinal region. 10. According to the opinion of the doctor, these injuries could have been caused by spear on 26.7.1983 at 07:30 AM. According to the prosecution version, Bhagwati Prasad received the spear injuries and succumbed due to the injuries sustained by him, hence, the factum of death of Bhagwati Prasad due to ante-mortem injuries is established. 11. PW-7 Dr. R.C. Chaturseni has conducted the medico legal examination of Ram Newaz on 27.7.1983 at 08:30 AM at District Hospital Gonda and found following injuries on his body :- 1. Lacerated wound 7 cm x 1 cm x bone deep 16 cm from left ear on the top of scalp with fesh bleeding. 2. 11. PW-7 Dr. R.C. Chaturseni has conducted the medico legal examination of Ram Newaz on 27.7.1983 at 08:30 AM at District Hospital Gonda and found following injuries on his body :- 1. Lacerated wound 7 cm x 1 cm x bone deep 16 cm from left ear on the top of scalp with fesh bleeding. 2. Lacerated wound 4.5 cm x 0.5 cm x bone deep with fresh bleeding 1 cm right to injury No. 1. 3. Lacerated wound 5 cm x 0.5 cm x bone deep with fresh bleeding 4 cm back to injury No. 1. 4. Lacerated wound 1.5 cm x 0.5 cm x scalp deep with fresh bleeding on scalp, 11 cm above from right ear. 5. Penetrating wound 1.5 cm x 1 cm (+ shaped) on front of left side chest (depth not measured because of bleeding). 6. Penetrating wound 0.5 cm x 0.5 cm x muscle deep on front of abdomen with fresh bleeding 2.5 cm away and at 1 O' clock position from umbilicus. 7. Penetrating wound 1 cm x 0.5 cm x muscle deep on the back of right upper arm, 7 cm above right elbow. 8. Red contusion on left shoulder on top 11 cm x 2 cm (transverse). 9. Red contusion 7 cm x 2 cm on left side back of chest at lower angle of left scapula (transverse oblique). 10. Red contusion 8 cm x 2 cm on the back of right scapula (transverse). 11. Red contusion 7 cm x 2 cm on back of right side chest (vertical). 12. As per the opinion of the doctor, all the injuries were fresh. Injury No. 5, 6 and 7 were caused by penetrating object while rest were caused by blunt object. Injury No. 1 to 5 were kept under observation. X-ray of skull and chest was advised while injury No. 6 to 11 were simple in nature. No supplementary report is filed by the prosecution which can show that injury No. 1 to 5 were grievous, hence, all the injuries sustained by Ram Newaj were simple in nature. 13. On the same day at 10:00 AM, PW-7 Dr. Chaturseni medico-legally examined complainant Ram Naresh and found following injuries on his body :- 1. No supplementary report is filed by the prosecution which can show that injury No. 1 to 5 were grievous, hence, all the injuries sustained by Ram Newaj were simple in nature. 13. On the same day at 10:00 AM, PW-7 Dr. Chaturseni medico-legally examined complainant Ram Naresh and found following injuries on his body :- 1. + shaped wound with sharp margin on top of head, penetrating in nature with fresh bleeding 5.5 cm x 2.5 cm (with breadth 0.5 cm) x bone deep, 8 cm above right ear. 2. Abrasion 2 cm x 1 cm on back of right shoulder. 3. Red contusion 8 cm x 4 cm on back of left side chest upper part. 4. Red contusion 4 cm x 2 cm on the back of left side (vertical oblique). 5. Red contusion on back of left side upper arm and post fold of left axilla 7 cm x 2 cm (transverse). 6. Red contusion 11 cm x 4 cm on side of left upper arm. 7. Red contusion with traumatic swelling 11 cm x 4 cm on the back of left forearm upper third. 8. Traumatic swelling 5 cm x 2 cm on the left palm. 14. According to the opinion of the doctor, all the injuries except injury No. 1 and 7 were simple in nature. X-ray of skull and left forearm was advised. All the injuries were fresh, caused by blunt object except injury No. 1, which was caused by penetrating object. No X-ray report was filed on record, hence, all the injuries sustained by complainant Ram Naresh were simple in nature. 15. Now, it is to be seen as to whether the prosecution has successfully proved that the injuries to Bhagwati Prasad (deceased) and injured were caused by the accused persons. It is also to be seen as to whether the prosecution has been successfully able to prove beyond reasonable doubt the charges against the accused. 16. Learned counsel for the appellants submits that the accused has been falsely implicated in this case. No specific role has been assigned to any accused. Deceased and injured have sustained injuries in the dark and they have falsely implicated the accused due to enmity. It is further submitted that the accused namely Ram Nath, Kripa Ram and Satya Ram could not be convicted under section 302 IPC with the aid of section 149 IPC. No specific role has been assigned to any accused. Deceased and injured have sustained injuries in the dark and they have falsely implicated the accused due to enmity. It is further submitted that the accused namely Ram Nath, Kripa Ram and Satya Ram could not be convicted under section 302 IPC with the aid of section 149 IPC. There was no common object to commit the murder of Bhagwati Prasad. It is further submitted that there was no motive for the accused to commit the crime. Deceased Bhagwati Prasad has not sustained any injury of lathi, hence, the accused appellant No. 4 to 6 could not be convicted for the murder of Bhagwati Prasad. 17. Per contra, learned A.G.A. submits that there was enmity between the parties. Accused have assaulted Ram Naresh in the field of Girija Saran. When Ram Newaj and Bhagwati saw the incident, they came for his rescue then accused, in furtherance of the common object of unlawful assembly, have also assaulted Bhagwati Prasad and Ram Newaz wherein Bhagwati Prasad succumbed due to the injuries while Ram Newaz also sustained injuries. It is further submitted that although deceased Bhagwati Prasad has not received any injury by lathi but all the accused have rightly been convicted with the aid of section 149 IPC. 18. PW-1 Ram Naresh is the complainant and injured, who has proved the prosecution version. It is stated that when he went at the door of Hanuman, Ram Nath came. They had a scuffle but some people intervened. Both of them went to their houses. At about 07:30 AM when he was at the chak of Girija, Jamuna and Swami Nath armed with spear, Ram Nath, Ganga, Kripa and Satya Ram armed with lathi surrounded and assaulted him, then Bhagwati Prasad, Ram Newaz and Deoraj, who were sowing the crop in their fields came then the accused assaulted them. Bhagwati Prasad sustained injuries and succumbed to injuries. This is a case of a direct eyewitness account. Although motive is also alleged by the PW-1 Ram Naresh wherein it is stated that his brother Ayodhya Prasad was beaten by accused Jamuna and others. They were convicted and were released on bail. This was the motive behind the incident. Bhagwati Prasad sustained injuries and succumbed to injuries. This is a case of a direct eyewitness account. Although motive is also alleged by the PW-1 Ram Naresh wherein it is stated that his brother Ayodhya Prasad was beaten by accused Jamuna and others. They were convicted and were released on bail. This was the motive behind the incident. So far as enmity is concerned, there is no denial, rather it is an admitted fact that the accused and complainant party were on inimical terms with each other. It is suggested to PW-1 that some unknown persons have committed the murder and accused have been falsely implicated due to enmity. Even in the statement under section 313 Cr.PC, 1973 it is stated by the accused that they have been falsely implicated due to enmity. So far as motive is concerned, there was a motive which has been duly proved by the prosecution. Enmity is a double edged weapon which can be used for false implication at the same time can also be used for commission of the offence. 19. Now, it is to be seen as to whether the statement of injured persons PW-1 Ram Naresh and PW-2 Ram Newaz are trustworthy and reliable ? 20. PW-1 Ram Naresh is the complainant, who has categorically stated in the FIR about the manner of assault. Spear has been assigned to the accused Jamuna and Swami Nath while others were armed with lathi. It is important to note that PW-1 Ram Naresh is an injured witness. Statement of an injured witness attains much relevance unless and until it is proved that the injuries were not caused in the incident. 21. It is also settled legal position that the statement of injured witness has to be adjudged and should be relied upon unless there are grounds for rejection of the evidence on the basis of major contradictions and discrepancies therein. It has been held in paragraph 36 of the report in Bhajan Singh alias Harbhajan Singh and others v. State of Haryana, (2011) 7 SCC 421 as under : "36. The evidence of the stamped witness must be given due weight-age as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The evidence of the stamped witness must be given due weight-age as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Abdul Sayeed v. State of M.P. [ (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; Kailas v. State of Maharashtra [ (2011) 1 SCC 793 : (2011) 1 SCC (Cri) 401]; Durbal v. State of U.P. [ (2011) 2 SCC 676 : (2011) 1 SCC (Cri) 877] and State of U.P. v. Naresh [ (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216].)" 22. According to PW-1 Ram Naresh, incident occurred in the field of Girija which is towards South of the chak of complainant. Bhagwati, Ram Newaz and Deoraj were sowing the crop in their field. They came in the chak of Girija Saran where they were also assaulted. PW-1 Ram Naresh has sustained one injury of spear which finds support from the medico legal examination report wherein according to Doctor PW-7 Chaturseni this injury could have been caused by penetrating object. Bhagwati, Ram Newaz and Deoraj were sowing the crop at a distance of about 250 to 300 steps. Other persons were also watching the incident but no-one intervened. Statement of PW-1 Ram Naresh is fully in corroboration with the prosecution version. It is submitted that no independent witness has been produced but it is settled legal position that quality and not quantity of the witnesses is to be looked into. Other persons were also watching the incident but no-one intervened. Statement of PW-1 Ram Naresh is fully in corroboration with the prosecution version. It is submitted that no independent witness has been produced but it is settled legal position that quality and not quantity of the witnesses is to be looked into. If the statement of the injured witness is trustworthy, reliable then even if independent witnesses have not been produced, no benefit could be extended to the accused. Hence, the statement of PW-1 Ram Naresh is fully reliable and trustworthy. 23. PW-2 Ram Newaz is also an injured witness, who has fully supported the prosecution version. PW-2 Ram Newaz has sustained 11 injuries, out of which injury no. 5, 6 and 7 were penetrating wound. PW-2 Ram Newaz has specifically stated that he was assaulted by the accused persons by spear and lathi. Bhagwati Prasad was also assaulted by spear. Presence of PW-2 Ram Newaz at the spot is natural. There is no reason to disbelieve his testimony. He is the brother of PW-1 Ram Naresh. PW-2 was sowing crop in his field. When he saw that his brother Ram Naresh is being beaten by the accused, he along with his brother and nephew came at the spot to rescue Ram Naresh then the accused, who were armed with lathi and spear, assaulted him with Bhagwati Prasad, resulting in death of Bhagwati Prasad and injuries to Ram Newaj. 24. We do not find any contradiction in the statement of PW-2 which could raise a suspicion or doubt in his testimony. Accordingly, the statement of PW-2 Ram Newaj is also fully reliable and trustworthy. PW-3 Shiv Saran Tripathi is scribe of the written report. It is submitted that on earlier occasions also he was the scribe of the report which was lodged by the complainant against the accused, hence, he is an interested witness. He is also related witness whose presence is doubtful. PW-3 Shiv Saran Tripathi has admitted that on earlier occasion also he was the scribe of the written report for complainant. In this matter also he reached at the spot and saw the incident. He is a relative witness but his presence at the spot could not be held as doubtful. He was going to his in-laws house. His village Khamaria Harivansh is about 9 Kms from the place of incident. In this matter also he reached at the spot and saw the incident. He is a relative witness but his presence at the spot could not be held as doubtful. He was going to his in-laws house. His village Khamaria Harivansh is about 9 Kms from the place of incident. This itself could not be a ground to discard the testimony on the ground that he is a chance witness. He has given a detailed account of the incident. He wrote the written report on the dictation of Ram Naresh. It is specifically stated by him that Bhagwati was not assaulted by lathi which statement finds support from the postmortem examination report wherein all the injuries on the body of Bhagwati were of spear. Accordingly, the testimony of PW-3 is fully reliable. 25. It is submitted that the place of occurrence has been changed. Incident took place at some other place during night and has been changed to the field of Girija. PW-9 S.N.S. Sengar Investigating Officer has collected the blood stained and plain earth from the place of occurrence and has also prepared the site plan. He has proved the site plan wherein the place of incident is shown in the field of Girija. Blood stained earth was sent for chemical examination wherein blood spots were found disintegrated. Statement of PW-1 Ram Naresh, PW-2 Ram Newaz, PW-3 Shiv Saran fully establish their presence at the spot which was the field of Girija. 26. Learned counsel for the appellant submits that injury No. 6 of the deceased could not be caused by the spear. He has placed reliance upon the statement of PW-8 Dr. M.P. Singh, wherein he has stated that injury No. 6 could not be caused by spear. We do not find any force in the argument. In the examination-in-chief itself it is stated by PW-8 Dr. M.P. Singh that all the injuries of the deceased could have been caused by pointed weapon. It is specifically stated by PW-1 Ram Naresh and PW-2 Ram Newaz that the deceased Bhagawati Prasad was assaulted by Swami Nath and Jamuna Prasad by spear. Spear is also a pointed weapon. It is settled legal position that if there is a conflict in the ocular testimony and medical evidence then the ocular testimony would prevail. 27. It is specifically stated by PW-1 Ram Naresh and PW-2 Ram Newaz that the deceased Bhagawati Prasad was assaulted by Swami Nath and Jamuna Prasad by spear. Spear is also a pointed weapon. It is settled legal position that if there is a conflict in the ocular testimony and medical evidence then the ocular testimony would prevail. 27. In Bhajan Singh @ Harbhajan Singh and others v. State of Haryana, (2011) 7 SCC 421 , the view taken in Abdul Sayeed v. State of M.P., reported in (2010) 10 SCC 259 has been relied wherein it is held that the position of law in a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 28. The same view was taken by the Apex court in State of U.P. v. Hari Chand, (2009) 13 SCC 542 wherein it was held that "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy." 29. In view of the law laid down by the Hon'ble Apex Court we are not inclined to accept the argument of the learned counsel for the appellant that the injury no. 6 of the deceased could not have been caused by spear. 30. Now, we have to see as to whether the accused no. 4, 5 and 6 could be convicted and sentenced under section 302 read with section 149 IPC for committing the murder of Bhagwati Prasad and causing injuries to Ram Naresh and Ram Newaj. 31. Learned counsel for the appellant submits that there was no common object of the accused. They have not came at the spot to commit the murder of Bhagwati Prasad, rather as per the prosecution version they came at the spot with an intention to cause hurt to Ram Naresh, wherein Bhagwati Prasad and Ram Newaz and Deo Raj came. Bhagwati Prasad succumbed due to the injuries caused by spear by Swami Nath and Jamuna Prasad. They have not came at the spot to commit the murder of Bhagwati Prasad, rather as per the prosecution version they came at the spot with an intention to cause hurt to Ram Naresh, wherein Bhagwati Prasad and Ram Newaz and Deo Raj came. Bhagwati Prasad succumbed due to the injuries caused by spear by Swami Nath and Jamuna Prasad. Accused appellant No. 4, 5 and 6 namely Ram Nath, Kripa Ram and Satya Ram were armed with lathi. No injury of lathi was caused or found on the body of the deceased, hence, accused-appellants could not be convicted and sentenced under section 302 IPC with the aid of section 149 IPC. 32. Per contra, learned A.G.A. submits that the accused appellants have formed an unlawful assembly. In furtherance of the common object of the unlawful assembly they have assaulted Ram Naresh, when Bhagwati Prasad and Ram Newaz came to rescue him, Jamuna Prasad and Swami Nath assaulted Bhagwati Prasad by spear causing his death. It is further submitted that injured Ram Newaz and Ram Naresh also sustained injuries of spear and lathi which shows that in furtherance of the common object of the unlawful assembly, all the accused have caused injuries to Ram Naresh and Ram Newaz while Swami Nath and Jamuna Prasad have caused death of Bhagwati Prasad. 33. Scope and object of Section 149 IPC was broadly dealt with by the Hon'ble Apex Court in Lalji and Others v. State of U.P., (1989) 1 SCC 437 , wherein it was held that Section 141 IPC defines unlawful assembly. An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to do any act or acts stated in clause 1 to 5 of that section. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. It was held in Lalji (supra) that :- "8. Section 149 I.P.C. provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 I.P.C., an assembly of five or more persons is designated an 'Unlawful Assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', 'Fourth', and 'Fifth' of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it,is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that 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 committed. Not every person is necessarily guilty but only those who share in the object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, 135 arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal 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 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. 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. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to 136 the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it." 34. In Ramachandran and Others v. State of Kerala, (2011) 9 SCC 257 , it was held that :- 27. Thus, this court has been very cautious in the catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident. 35. In Bharat Soni and Others v. State of Chhattisgarh, (2012) 12 SCC 657 , it was held that :- 14. The number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident. 35. In Bharat Soni and Others v. State of Chhattisgarh, (2012) 12 SCC 657 , it was held that :- 14. An assembly of five or more persons having as its common object any of the five objects enumerated under Section 141 of the IPC is deemed to be an unlawful assembly. Membership of an unlawful assembly is itself an offence punishable under Section 143 whereas other species of the said offence are dealt with under Sections 143 to 145 of the IPC. Similarly, Sections 146 to 148 of the IPC deals with the offence of rioting which is defined to be use of force or violence by any member thereof. Section 149 makes every member of an unlawful assembly liable for offence that may be committed by any member of the unlawful assembly in prosecution of the common object of that assembly or for commission of any offence that the members of the assembly knew to be likely to be committed in prosecution of the common object of the assembly. 15. Section 149 IPC, therefore, engrafts a principle of vicarious or constructive liability inasmuch as a person would be guilty of an offence, though he may not have directly committed the same if as a member of an unlawful assembly he had shared a common object with the other members to commit such an offence or if he knew that such offence was likely to be committed in prosecution of the common object of the assembly of which he was a member. 16. The purport and effect of the provisions of Section 149 IPC has received the consideration of this court on more than one occasion. 16. The purport and effect of the provisions of Section 149 IPC has received the consideration of this court on more than one occasion. Without referring to any particular or specific precedent available on the point, it would suffice to say that determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew that the offence that was committed was likely to be committed is essentially a question o f fact that has to be made 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 and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration. 17. In Dani Singh v. State of Bihar (2004) 13 SCC 203 , the meaning of the word "common object" had been considered by this Court. The relevant part of the discussion may be summarized up below: 11.......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...... 12......The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the 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 members at or near the scene of the incident..... 13......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. 13......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 can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident." 18. In a recent decision of this court in Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324 , to which one of us (Sathasivam, J.) was a party, the principle of constructive liability under Section 149 IPC had once again received an elaborate consideration. In paragraph 39 of the judgment it was held that: "39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of lawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object." In para 40 of the judgment in Kuldip Yadav (2011) 5 SCC 324 , an earlier decision in Rajendra Shantaram Todankar v. State of Maharashtra, (2003) 2 SCC 257 , was noticed, particularly, the opinion that : (Kuldip Yadav case) "40. ....'14 ...."It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime." (Rajendra Shantaram case, (2003) 2 SCC 257 ) 36. In a recent judgment Muthuramalingam and Others v. State, Represented by Inspector of Police, (2017) 1 SCC 477 , Hon'ble Apex Court has referred to Mohan Singh v. State of Punjab, AIR 1963 Supreme Court 174, Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 , Shambhu Nath Singh v. State of Bihar, AIR 1960 Supreme Court 725 and Mizaji v. State of U.P., AIR 1959 Supreme Court 572. It was held that :- 21. However, an overt act is not always an inflexible requirement of rule of law to establish culpability of a member of an unlawful assembly. The crucial question is whether the assembly entertained a common unlawful object and whether the accused was one of the members of such an assembly by intentionally joining it or by continuing in it being aware of the facts which rendered the assembly unlawful. Without unlawful object no assembly becomes an unlawful assembly. 37. In the backdrop of the aforesaid legal proposition now we have to see as to whether the learned trial court has rightly convicted the accused appellant no. 4, 5 and 6 under section 302 IPC read with section 149 IPC. It is settled legal position that deceased Bhagwati Prasad died due to the injuries caused by spear but at the same time it is also proved that injured Ram Naresh and Ram Newaz also sustained injuries of spears as well as lathi, hence, the factum of involvement of all the accused in the commission of crime is established. It is further established that all the accused were sharing the common object. It was not obligatory on the part of the prosecution to prove as to what specific overt act was done by which of the accused because section makes every member of the unlawful assembly responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. 38. Even no suggestion was put forward by the defence to any of the witnesses that the accused appellant No. 4, 5 and 6 were not present at the spot or have not caused any injury to the injured persons. Presence of the accused persons at the spot is duly proved by the prosecution. 39. It was held in Bhanvar singh v. State of M.P., (2008) 16 SCC 657 that :- "44. Presence of the accused persons at the spot is duly proved by the prosecution. 39. It was held in Bhanvar singh v. State of M.P., (2008) 16 SCC 657 that :- "44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment. 40. In Charan Singh v. State of U.P., (2004) 4 SCC 205 , it was held in para 13 that:- "13. ... The crucial question to determine is 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. ... 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 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 common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter." 41. In a recent judgment Kattukulangara Madhavan v. Majeed and Others, (2017) 5 SCC 568 , the Hon'ble Apex Court has placed reliance upon Lalji v. State of U.P., (1989) 1 SCC 437 , wherein it was held that common object of the unlawful assembly can be gathered from the 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 the case. Reliance was also placed on State of U.P. v. Dan Singh, (1997) 3 SCC 747 , wherein it was held that the mere presence in the unlawful assembly may vicariously fasten criminal liability under section 149 IPC. In para 23 of the judgment it was held that :- "23. In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfil the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly. For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused : 1. What was the point of time at which he discovered that the assembly intended to kill the victim? 2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object ? 3. If he did, and failed, did he dissociate himself from the assembly by getting away? The answer to these questions would determine whether an accused shared the common object in the assembly. 2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object ? 3. If he did, and failed, did he dissociate himself from the assembly by getting away? The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory." Answers to the questions as framed by the Hon'ble Apex Court in the aforesaid case of Kattukulangara Madhavan v. Majeed and Others, (2017) 5 SCC 568 , would decipher the role of accused for implicating them with the aid of Section 149 IPC. 42. Accused appellants have formed an unlawful assembly. In furtherance of the common object of unlawful assembly the accused appellants assaulted Ram Naresh in the field of Girija. When Bhagwati Prasad and Ram Newaz alongwith Deo Raj came to rescue him accused appellants assaulted them causing the death of Bhagwati Prasad which was in furtherance of the common object of the unlawful assembly. Common object was developed at the spot. Bhagwati Prasad died due to the injuries caused to him which were sufficient in the ordinary course of nature to cause death. 43. Accused appellants No. 4, 5 and 6 discovered at the time when Swami Nath and Jamuna Prasad had inflicted the injuries on the body of Bhagwati Prasad that their intention is to kill him. Neither they made any attempt to stop the assembly from pursing the object to kill Bhagwati Prasad nor they disassociated themselves from the assembly by getting away. Hence, the learned trial court has rightly convicted and sentenced the accused appellants under section 302 IPC read with section 149 IPC along with 147 and 324/149 IPC. Conviction of accused appellants no. 4, 5 and 6 is maintained. Sentence imposed by the learned trial court on appellant no. 4 and 5 is also maintained. 44. Another limb of the argument is that appellant no. 6 Satya Ram was declared as juvenile in conflict with law vide order of this Court dated 12.10.2017. Conviction of accused appellants no. 4, 5 and 6 is maintained. Sentence imposed by the learned trial court on appellant no. 4 and 5 is also maintained. 44. Another limb of the argument is that appellant no. 6 Satya Ram was declared as juvenile in conflict with law vide order of this Court dated 12.10.2017. An application was moved by the appellant no. 6 Satya Ram on 18.7.2016 to declare him juvenile in conflict of law on the date of incident. Matter was referred to the Juvenile Justice Board, Gonda for inquiry under section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred to as 'Act'). Juvenile Justice Board, Gonda reported that the appellant No. 6 was a child aged 15 years 9 months 21 days, 'in conflict with law' on the date of occurrence. Shri I.B. Singh, learned senior Advocate for the appellant No. 6 has elaborately made his submissions before the Court on the point. It is submitted that Section 9(3) of the Act provides that if the Court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the Court, shall be deemed to have no effect. It is submitted that the finding recorded by the Juvenile Justice Board, Gonda has attained finality as no appeal or revision has been preferred against that order. This fact is also conceded by the learned A.G.A. Learned counsel for the appellant submits that appellant No. 6 should be forwarded to the Board for passing appropriate orders. 45. Learned A.G.A. fairly conceded the legal position and submitted that finding recorded by the Juvenile Justice Board, Gonda regarding the age of appellant No. 6 on the date of occurrence has attained finality, hence, appellant No. 6 be forwarded to the Juvenile Justice Board for passing appropriate orders. 46. In Mumtaz v. State of U.P. (now Uttarakhand) (2016) 11 SCC 786 , the Hon'ble Apex Court has dealt with the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children), Act, 2000. Hon'ble Apex Court has placed reliance upon Jitendra Singh v. State of U.P., (2013) 11 SCC 193 , wherein it was held in para 32 that :- "32. Hon'ble Apex Court has placed reliance upon Jitendra Singh v. State of U.P., (2013) 11 SCC 193 , wherein it was held in para 32 that :- "32. A perusal of the "punishments" provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him [clause (a)] is hardly a "punishment" that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986." 47. In Mumtaz (supra) it was held that :- "23. In Jitendra Singh v. State of U.P., (2013) 11 SCC 193 , having found the juvenile guilty of the offence with which he was charged, in accordance with the law laid down by this Court as stated above, the matter was remanded to the jurisdictional Juvenile Justice Board constituted under the 2000 Act for determining appropriate quantum of fine. The view taken therein is completely consistent with the law laid down by this Court and in our opinion the decision in Jitendra Singh v. State of U.P., (2013) 11 SCC 193 does not call for any reconsideration. The subsequent repeal of the 2000 Act on and with effect from 15.01.2016 would not affect the inquiry in which such claim was found to be acceptable. Section 25 of the 2015 Act makes it very clear." (emphasis supplied) 48. The subsequent repeal of the 2000 Act on and with effect from 15.01.2016 would not affect the inquiry in which such claim was found to be acceptable. Section 25 of the 2015 Act makes it very clear." (emphasis supplied) 48. Hon'ble Apex Court held the appellant Dilshad alias Pappu to be juvenile on the day of occurrence and guilty of the offence with which he was tried but the sentence of life imprisonment passed against him was set-aside and matter was remitted to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine to be levied upon the accused. 49. In the present case also appellant no. 6 is now aged about 50 years. Incident relates to the year 1983. The only realistic punishment that can possibly be awarded to appellant No. 6 on the facts of this case is to require him to pay a fine under clause E of Section 21 Subsection 1 of the Juvenile Justice Act, 1986. 50. Accordingly, appeal of Ram Nath and Kripa Ram is dismissed. Conviction and sentence of appellant No. 4 and 5 Ram Nath and Kripa Ram imposed by the learned trial court is maintained. They are on bail. Their bail bonds and personal bonds are cancelled and sureties are discharged. They shall surrender before the learned trial court forthwith to serve out the sentence as imposed by the learned trial court and confirmed by this Court. In case they did not comply the order then the learned trial court shall adopt all coercive measures to ensure their arrest. 51. Appellant no. 6 Satya Ram is also found guilty under section 302 read with section 149, 147 and 324/149 IPC but the sentence of life imprisonment and other sentences imposed upon him are set aside. Matter is remitted to the Juvenile Justice Board, Gonda for determining the appropriate quantum of fine that should be levied on appellant Satya Ram and the compensation that should be awarded to the family of the deceased keeping in mind the directions issued in Jitendra Singh v. State of U.P., (2013) 11 SCC 193 . Thus, appeal of Appellant No. 6 Satya Ram stands partly allowed. 52. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Thus, appeal of Appellant No. 6 Satya Ram stands partly allowed. 52. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.