16 September 2019


Judgments

High Court of Delhi

Noor Fatma v. The State Government NCT Of Delhi and Ors.

MANU/DE/2814/2016

20.10.2016

Criminal

Mere presence in an unlawful assembly cannot render a person liable unless there was a common object

By present revision petition, Petitioner seeks setting aside of order passed by Additional Sessions Judge discharging Respondents from offence punishable under Section 395 of Indian Penal Code, 1860 (IPC). Petitioner submitted that, Additional Sessions Judge failed to appreciate the fact that, act of snatching mobile phone and stealing of money constitute ingredients of offence punishable under Section 395 IPC. The above mentioned acts were in furtherance with common object of Respondents thus attracting Section 149 IPC.

Apex Court in State of Maharashtra v. Kashirao, while dealing with applicability of Section 149 IPC observed that 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. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. 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. There must be community of object and the object may exist only up to a particular stage, and not thereafter. 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.

Act of snatching mobile phone and stealing of `50,000/- were two stand alone acts allegedly done. In so far as application of Section 149 IPC is concerned, necessary ingredient to constitute an offence with the aid of Section 149 IPC is common object. Mere presence of Respondents cannot be inferred to mean that they came as an unlawful assembly for snatching the phone and stealing the money. It cannot be contemplated from statement of complainant that, members of unlawful assembly knew that some of them were likely to commit dacoity as punishable under Section 395 IPC. Thus, it cannot be said that, there was common object of unlawful assembly to commit these two acts thus, learned Additional Sessions Judge rightly held that Section 395 IPC cannot be invoked as these two stand alone acts were allegedly committed by less than five persons.

Relevant

State of Maharashtra v. Kashirao, (2003) 10 SCC 434

Tags : Offence Provision Applicability

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