The Supreme Court, in none of its recent judgement has held that 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 an unlawful assembly, it cannot be said that he is a member of an assembly.
The Top Court's judgement came out in State of Uttar Pradesh v. Ravindra @ Babloo.
CASE BACKGROUND
The case discloses a crime scene which came out of a land dispute in which five persons were originally accused. The deceased was father and son while their respective wives were the injured eye-witness and plain witness respectively.
The High Court in its judgement delivered in the case has opined that in absence of injuries on the two deceased and the injured not being commensurate to the nature of weapons possessed by the three respondents entitled them to acquittal.
APEX COURT ANALYSIS
The Bench after detailed observation of the crime scene made it an undisputed fact that the accused who were all well armed constituted an unlawful assembly. It said that the common object of the assembly and that it was shared by all of them with awareness is also evident from their conduct in having chased and assaulted the deceased.
The Court was of the opinion that in a case of a mob assault, especially when there is no doubt with regard to the ocular evidence, to look for corroboration of each injury by correlating it with the evidence of a prosecution witness to a particular accused and then to discredit the prosecution case on that basis cannot be upheld and is contrary to the principles of criminal jurisprudence regarding common object and the necessary ingredients for the same.
The Court was very certain with the manner of occurrence of the crime scene that the assailants were most definitely more than two persons and considering the nature and number of injuries, the assailants may well have been five in number.
The Court called out for the determinative factor in the case which is the assembly consisting of five or more persons fully armed and who entertained one or more of the common objects, as specified in Section 141 IPC.
The Bench made it specific that 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 an unlawful assembly, it cannot be said that he is a member of an assembly.
Pointing at the present case, the Bench stated that the respondents well understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. IPC.
Defining the notion of Section 141 IPC, the Court stated that the word "object" means the purpose or design and, in order to make it "common", it must be shared by all.
It further said that the "common object" of an assembly is to be ascertained from the acts and language of the members comprising 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. Sharing of a common object is a mental attitude which is to be gathered from the act of a person and result thereof. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
The Court cited Lalji and ors. v. State of U.P., (1989) 1 SCC 437 in which it was held,
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"10. Thus, once the court holds that certain accused persons formed an 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 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."
The Court concluded by saying that it is unable to hold that there is such gross variation between the ocular evidence and the medical evidence so as to discredit an injured witness and an eye witness to order acquittal and cited Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155 in which the below was observed:
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"8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in a serious and substantial miscarriage of justice, the High Court cannot, in this case, be found fault with for its well-merited interference."
The Court thus set aside the order of acquittal directed the respondents to surrender within four weeks for serving out the remaining period of their sentence.
Appealants has been represented by Ravindra Kumar Raizada, Sr. Adv., Vishwa Pal Singh, Adesh Kumar Gill, Bhuwan Jayant and Ms Pallavi, Advocates
Respondents were represented by Naresh Kumar, Advocate
The judgement was delivered by Bench comprising of HON'BLE MR. JUSTICE NAVIN SINHA, HON'BLE MR. JUSTICE KRISHNA MURARI on 18-12-2019.
Read Judgement Here:
