The Hindu : National : Mere presence in unlawful assembly will not attract conviction: court

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Thursday, Jun 21, 2007
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Mere presence in unlawful assembly will not attract conviction: court

Legal Correspondent

If the common object is not proved, the accused cannot be convicted

NEW DELHI: Mere presence in an unlawful assembly cannot render a person liable for conviction unless there was a common object and he was actuated by it, the Supreme Court has held.

“Where the common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149, Indian Penal Code,” said a Bench consisting of Justices Arijit Pasayat and B.P. Singh.

Section 149 says, “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 or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

The Bench said Section 149 had its foundation in constructive liability “which is the sine qua non for its operation.”

It said, “The emphasis is on the common object and not on common intention. The crucial question to be determined 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 IPC [unlawful assembly].”

Writing the judgment, Justice Pasayat said, “Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object and as a consequence the effect of Section 149 IPC may be different on different members of the same assembly.”

Case in question

In the present case, a minor dispute among friends over group photographs resulted in the death of two persons 12 years ago.

While the trial court convicted all the nine accused to life imprisonment, the Punjab and Haryana High Court on appeal, acquitted them in 2001.

Punjab appealed against the judgement but the Supreme Court Bench upheld the acquittal saying that the prosecution had failed to prove that their assembly was unlawful with a common object to commit the crime.

It held that a spontaneous fight like this could not be covered under Section 149 of the IPC .

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