# Rakesh Singh & Anr v. State of U.P

- **Citation:** (2025) 4 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-11
- **Case number:** Criminal Appeal No. 4854 of 2016
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-singh-anr-v-state-of-u-p-53269
- **Pages:** 15

## Headnote

(A) Criminal Law - Unlawful Assembly -
Common Object - Indiscriminate firing by
armed accused causing death and injuries
- Indian Penal Code, 1860 - Sections 147,
148, 149, 302 & 307 - Arms Act, 1959 -
Section 27 - Any lawful assembly may
become unlawful at any point of time -
Common object may be formed at any
stage and liability arises even without
overt act if member shares object -
Moment indiscriminate firing began in
response to objection, assembly became
unlawful
and
common
object
was
formed.(Para -29 to 33,36)

Accused persons consuming liquor and abusing
each other were objected to by the informant -
Accused retaliated with firearms causing death
of two and injuries to five including informant -
FIR lodged after delay of six and a half hours
due to urgent medical needs - Prosecution
justified delay based on circumstances - Trial
4 All. Rakesh Singh & Anr. Vs. State of U.P.
875
Court convicted all accused - Appeals filed
against conviction. (Para -27 )

HELD: -The moment the accused persons had
started the indiscriminate firing at the injured
persons they had formed a common object and
the assembly of the accused persons became an
unlawful assembly. Prosecution succeeded in
proving the case. No interference was required
in the trial court's judgment.,
(Para -36,37)

Criminal appeal's dismissed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,491 of 49,702. This is a partial read: ask again with offset=39491 for what follows._

874 INDIAN LAW REPORTS ALLAHABAD SERIES
not find any legal infirmity in the
appreciation of the evidence by the learned
Sessions
Judge
which
we
have
independently
reconsidered
and
reappreciated.

46. After perusal of the entire
evidence, it is found that a prompt F.I.R.
was registered under Section 307 of IPC,
injury report was prepared, the doctor
recorded the dying declaration by giving
certificate that the deceased was in a fit
state of mind. The injured died, therefore,
the F.I.R. was converted into Section 302 of
IPC. The prosecution proved the F.I.R.,
dying
declaration,
injury
report,
postmortem
report
by
ocular
and
documentary evidence.

47. We, therefore, are of the opinion
that the present appeal lacks merit and is,
accordingly, dismissed. The conviction of
surviving appellant- Ashraf is confirmed.

48. Since, the accused-appellant is
absconding, his bail bonds are cancelled
and the sureties are discharged. He shall be
taken into custody forthwith to serve the
sentence. The Chief Judicial Magistrate and
Senior
Superintendent
of
Police/Superintendent of Police concerned
shall ensure the arrest of the accusedappellant, Ashraf.

49. Trial court record be sent to the
concerned Court forthwith.

50. Let a copy of this order be
communicated
by
the
Registrar
(Compliance) to the Court concerned for
compliance.

51. The Chief Judicial Magistrate
shall submit a compliance report after two
months to be placed before the appropriate
Court.
----------
(2025) 4 ILRA 874
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 4854 of 2016
Connected with
Crl. Appeal Nos. 4607 of 2016, 5209 of 2016 &
5734 of 2016

Rakesh Singh & Anr. ... Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Ashok Kumar Tripathi, Govind Saran Hajela,
Radhey Shyam Shukla, Rajesh Kumar

Counsel for the Respondent:
Arvind Agrawal, G.A.

(A) Criminal Law - Unlawful Assembly -
Common Object - Indiscriminate firing by
armed accused causing death and injuries
- Indian Penal Code, 1860 - Sections 147,
148, 149, 302 & 307 - Arms Act, 1959 -
Section 27 - Any lawful assembly may
become unlawful at any point of time -
Common object may be formed at any
stage and liability arises even without
overt act if member shares object -
Moment indiscriminate firing began in
response to objection, assembly became
unlawful
and
common
object
was
formed.(Para -29 to 33,36)

Accused persons consuming liquor and abusing
each other were objected to by the informant -
Accused retaliated with firearms causing death
of two and injuries to five including informant -
FIR lodged after delay of six and a half hours
due to urgent medical needs - Prosecution
justified delay based on circumstances - Trial
4 All. Rakesh Singh & Anr. Vs. State of U.P.
875
Court convicted all accused - Appeals filed
against conviction. (Para -27 )

HELD: -The moment the accused persons had
started the indiscriminate firing at the injured
persons they had formed a common object and
the assembly of the accused persons became an
unlawful assembly. Prosecution succeeded in
proving the case. No interference was required
in the trial court's judgment.,
(Para -36,37)

Criminal appeal's dismissed. (E-7)

LIST OF CASES CITED: -
1. Subal Ghorai Vs St. of W.B., (2013) 4 SCC
607

2. Charan Singh Vs St. of U.P., (2004) 4 SCC
205

3. Haramant Laxmappa Kukkadi Vs St. of Karn.,
(1994) 1 SCC 736

4. Roy Fernandes Vs St. of Goa, (2012) 3 SCC
221

5. Gajanand & ors. Vs St. of U.P. : AIR 1954 SC
695

6. Kuna Vs St. of Odisha, (2018) 1 SCC 296

7. Rajeevan Vs St. of Kerala, (2003) 3 SCC 355

8. Sekaran Vs St. of T.N., (2024) 2 SCC 17

9. Sattey & ors. Vs St. of U.P. : (2019) 106 ACC
469

10. Chikkarange Gowda Vs St. of Mysore, 1956
SCC OnLine SC 65

11. Mizaji Vs St. of U.P., 1958 SCC OnLine SC 95

12. Shambhu Nath Singh Vs St. of Bihar, 1959
SCC OnLine SC 27

(Delivered by Hon'ble Anish Kumar Gupta,
J.)

1. Heard Sri Ashok Kumar Tripathi
and Sri Shashank Singh, learned counsel
for the appellants, Sri Shubham Kumar
holding brief of Sri Ashish Goyal, learned
counsel for the informant and the learned
A.G.A. for the State.

2. All these appeals have been filed by
the appellants being aggrieved by the
judgement and order dated 11.08.2016
passed by the Additional Sessions Judge,
Court No. 5, Shahjahanpur in Sessions
Trial No. 548 of 1997 & Sessions Trial No.
222 of 1998, whereby all the appellants
herein have been convicted for the offences
under Sections 147, 148, 149/307 and
149/302 I.P.C. For the offence under
Section 147 I.P.C. they were sentenced for
two years of imprisonment with a fine of
Rs. 5,000/- each, for the offence under
Section
148
I.P.C.,
three
years
imprisonment with fine of Rs. 5,000/- each,
for the offence under Sections 149/307
I.P.C., all the appellants were sentenced for
life imprisonment with a fine of Rs.
25,000/- each and for the offence under
Sections 149/302 I.P.C. all the appellants
were sentenced for life imprisonment with
a fine of Rs. 30,000/- each. In case of non
payment of fine for the offence under
Sections 147 and 148 I.P.C., they were
directed to undergo six months' additional
imprisonment in addition to the sentence
already awarded.

3. The brief facts of the prosecution
case are that the informant- Narendra Pal
Singh s/o Fakire Singh, had submitted a
written report on 18.05.1997 at around 1:00
A.M.
at
P.S.-
Nigohi,
District-
Shahjahanpur, stating therein that on
17.05.1997 at around 6:30 P.M., the
accused Jangbahadur Singh, Rajkumar
Singh, Devendra Singh who were equipped
with guns, accused Jaipal Singh who was
armed with a single barrel gun, Anil Kumar
Singh who was armed with a double barrel
876 INDIAN LAW REPORTS ALLAHABAD SERIES
gun, Vijay Kumar Singh who was armed
with a countrymade pistol, Omprakash
Singh, Nanku Singh, Rajkumar Singh,
Rakesh Singh, Rajendra @ Gajendra Singh,
Dangal Singh who were all armed with
single barrel gun and Veer Singh was
again having a gun, were drinking liquor
and abusing each other while passing
through the informant's chaupal. When the
informant
and
his
family
members
objected to their behaviour, the aforesaid
persons opened fire because of which
Fakire Singh, Smt. Hira Kunwari Devi,
Jhinak Singh, Nepal Singh, Rajkumar
Singh, Prem Pal Singh sustained fire arm
injuries. The informant- Nagendra Pal
Singh had stated in the written report that
he brought the injured persons in a tractor
trolley to the police station and requested
for
lodging
the
report
and
taking
appropriate legal action.

4. On the aforesaid written report
submitted by the informant- Nagendra Pal
Singh s/o deceased- Fakire Singh, an F.I.R.
was registered under Sections 147, 148,
149, 307, 504 I.P.C. and also under Section
27 of the Arms Act against the accused
appellants, namely Devendra Singh s/o
Jangbahadur Singh, Omprakash Singh s/o
Jagdish Singh, Rajendra @ Gajendra Singh
s/o Kanhai Singh, Rakesh Singh s/o
Rameshwar Singh, Rajkumar s/o Nanku
Singh, Rajkumar s/o Jangbahadur Singh,
Anil Kumar Singh s/o Jaipal Singh, Vijay
Kumar Singh s/o Jagdish Singh, Nanku
Singh s/o Mangoo Singh, Kanhai Singh s/o
Pulander Singh, Dangal Singh s/o Visni
Singh, Jaipal, Veer Singh and Jangbahadur
s/o Zoravar Singh. On the basis of the letter
of reference of the police station, medical
examination of the injured persons was
conducted at Government Hospital, Nigohi,
District- Shahjahanpur.

5. As per the medical examination
report dated 19.05.1997 at 10:30 A.M. the
following injuries were found on the body
of Smt. Heera Kumari:

1. A lacerated wound measuring
0.5 CM × 0.5 CM depth of which could not
be measured and 8 CM on the right side of
the head above the right eyebrow with
folded edges.

2. Torn wound measuring 0.5 CM
x 0.2 CM depth of which could not be
measured and 12 CM on left side of head,
edges folded over left ear.

3. Torn wound measuring 1.5 CM
× 0.5 CM, 0.4 CM x 0.2 CM depth could
not be measured. On left side of head 8 CM
above left eyebrow.

4. Scratch measuring 0.5 CM ×
0.2 CM in front of right ear.

5. Torn wound measuring 0.5 CM
× 0.2 CM in the inner side of the front of
the right ear.

6. Bullet wound behind the right
ear measuring 0.5 CM × 0.2 CM"

[As per the opinion of the Doctor
injury nos. 1, 2 and 3 were kept in
observance and X-Ray was advised. Injury
nos. 4, 5 and 6 were simple injuries.]

6. As per the medical examination
report of the injured- Rajkumar Singh
conducted on 19.05.1997 at 10:00 A.M.,
the following injuries were found on his
body:

"1. Torn wound measuring 0.5
CM X 0.4 CM depth of which could not be
measured. Left side of face 2 CM above the
mouth.

2. Multiple lacerated wounds on
right side of chest measuring 0.4 CM × 0.3
CM to 0.6 CM X 0.3 CM, depth of which
could not be measured, with curled edges."
4 All. Rakesh Singh & Anr. Vs. State of U.P.
877

[As per the opinion of the Doctor,
the injuries were kept in observance.
Injuries were one and a half days old.]

7. As per the report of the medical
examination of injured, Jhinak Singh @
Jhumak Singh, which was conducted on
20.05.1997 at 10:30 A.M., the following
injuries were found on his body:

"1. Bullet entry wound measuring
0.3 CM X 0.2 CM on right side of Head
just above the right ear, depth of which
could not be measured.

2. Scratch scab red in colour
measuring 0.7 CM X 0.3 CM over one
third of the right ear.

3. Bruise measuring 3.5 CM × 0.4
CM in length, 9.5 CM above the right hip
on right arm, brown in colour."

[As per the opinion of the Doctor
injury no.1 was kept in observance and XRay was advised. Injury nos.1, 2 and 3
were of simple in nature. Injury no. 1 was a
firearm injury and injury nos. 2 and 3 were
due to bruise marks. Injuries were two and
a half days old.]

8. As per the injury report of injured-
Munna Singh, the following injuries were
found during the medical examination of the
injured on 18.05.1997 at 3:20 A.M:

1. There were multiple firearm
injuries on the head of the injured and three
injuries were there on the head. One injury was
there in the palm of both the hands, three
injuries were there on the left face, one injury
was there on the left hand. All the injuries were
of similar type measurement of which were 0.4
CM to 0.3 CM. All injuries were soft and blood
clotting was present. Signs of injuries were
towards inside. Redness was present around the
injuries. The whole blackishness or burning was
not present around the injuries. There were two
injuries on the right chest, right stomach and
right side. On the left chest there two injuries
and one injury was there in front of the stomach
and one entry wound was found on the left
shoulder bone. As per the opinion of the Doctor
the condition of the injured was very serious
and he was in coma.

[As per the opinion of the Doctor, all
the injuries were caused by the firearm. Both
the eyes were damaged. Injuries were fresh. For
the final opinion, X-Ray was advised.]

9. As per the medical examination report
of injured- Fakire Singh, which was conducted
on 18.05.1997 at 3:50 A.M., the following
injuries were found on his body:

"Multiple bullet entry wounds on
face. One wound in the middle of the forehead.
One wound on the right cheek and four on the
chin. One wound on the front of the head which
was 6 CM above the forehead injury. One entry
wound on the right forearm. One entry wound
on the upper side of the right forearm.
Blackness was present on the left side. All the
wounds are similar and similar in appearance,
measuring 0.3 CM to 0.4 CM. The skin is
sunken. The edges of the wounds are soft and
blood is present. There is infiltration cell in the
wound. There was redness around the wound.
Injured was in critical condition and in
coma. The injuries were inflicted by a
firearm and were fresh. The injuries were
kept under observation and X-Ray was
advised."

10. As per the medical examination
report dated 18.05.1997 at 3:10 A.M., the
following injuries were found on the body
of the injured Satyapal Singh:

"1. Bullet entry wound 0.2 cm on
the lower eyelid of the right eye on which
avulsion cell was present. The wound was
soft on top and blood stain is present.
878 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This wound was similar to
injury no. 1 which was on the right ear
across
the
ear.
There
was
blood
accumulation. There was an exit wound
behind the ear with the edges bent
outwards. Patient was complaining of
dizziness, nausea and weakness."

[As per the opinion of the Doctor,
injury no. 1 was the entry wound and injury
no.2 was also the entry wound and exit
wounds were also present. These injuries
were one fourth day to one and a half day
old. X-Ray was advised and consultation
with
Eye
Specialist
was
also
recommended.]

11. As per the injury report of injured
Prempal Singh dated 18.05.1997 at 5:00
A.M., the following injuries were found on
his body:

"1. Multiple entry wounds, one
on the left cheek, below the neck, between
the two collarbones.

2. A wound on the right side of
the chest, 4 CM below the middle of the
collarbone.

3. A wound on the left chest, 8
CM above the nipple at the 12 o'clock
position

4. A wound on the shoulder.

5. A wound in front of the
abdomen.

6. Two wounds on the right arm
at a distance of 10 cm from each other.

7. Two wounds on the right
forearm."

All the injuries were similar in
nature. Also swellings were present.

12. Out of the aforesaid injured
persons, the injuries of Munna and Fakire
Singh were serious in nature and they were
admitted to Balrampur Hospital, Lucknow,
where the injured Munna Singh had died on
19.05.1997 at 1:20 P.M. and injured Fakire
Singh died on 22.05.1997 at 3:25 P.M.
Intimation of death was received at
District- Lucknow and thereupon the
inquest report of deceased Munna Singh
was prepared on 20.05.1997 at 2:45 P.M.
and similarly inquest report of deceased
Fakire Singh was prepared on 23.05.1997
at 12:30 P.M. at District- Lucknow.
Postmortem of deceased Munna Singh was
conducted 21.05.1997 at 1:30 P.M. and
postmortem of decease Fakire Singh was
conducted on 23.05.1997 at 3:45 P.M.

13. On the receipt of the report of
death of Munna Singh and Fakire Singh,
Section 302 I.P.C was added for the
purpose
of
investigation
against
the
accused persons. Investigation was carried
out and from the place of incident blood
stained and plain soil was taken from the
crime scene. Empty cartridges were also
recovered from the spot and the accused
persons were subsequently arrested. After
completion of the investigation, a chargesheet under Sections 147, 148, 149, 302
and 307 I.P.C. and Section 27 of the Arms
Act was filed against all the persons.
Supplementary charge-sheet was also filed
against Jangbahadur Singh s/o Zoravar
Singh for the same offence. The Chief
Judicial Magistrate had taken cognizance
on both the charge-sheets and committed
the case on 06.09.1997 and 06.03.1998
respectively to the Sessions Court. The
Sessions Court vide order dated 21.06.2002
had framed charges against the accused
persons for the offences under Sections
147, 148, 149, 302 and 307 I.P.C. The
accused persons however had denied the
charges and had claimed trial.

14. During the trial Anil Kumar
Singh, Vijay Kumar Singh, Jaipal Singh,
Nanku Singh, Kanhai Singh, Veer Singh
4 All. Rakesh Singh & Anr. Vs. State of U.P.
879
and Dangal Singh had died. Therefore, the
case was abated against them.

15. The accused Jangbahadur Singh
s/o Zoravar Singh was absconding from the
trial, therefore, the proceedings under
Sections 82 and 83 I.P.C. were initiated
against him and subsequently after the
execution of the bond against the sureties,
proceedings under Section 299 I.P.C. were
initiated against Jangbahadur Singh while
the case proceeded against the rest of the
accused persons.

16. In support of its case, the
prosecution had examined PW-1/informant-
Narendra Pal Singh, PW-2, Prempal Singh,
PW-3 Satyapal Singh, PW-4 S.I. Harendra
Pal Singh (Investigating Officer), PW-5 Dr.
D.K. Gupta, PW-6 Dr. Yogesh Kaul, PW-7
Dr. Devendra Singh Negi, PW-8 Dr.
Muniruddin, PW-9 Rajkumar Singh, PW10 Vinod Kumar Singh, PW-11 S.I.
Ramgopal Diwakar, PW-12 Rajendra Singh
and various documents were filed. After
conclusion of the prosecution evidence the
statements of the accused Rajkumar Singh
s/o Chandra Bahadur, Raj Kumar s/o
Nanku
Singh,
Devendra
Singh,
Om
Prakash Singh, Rajesh Singh, Rajendra
Singh @ Gajendra Singh were recorded
under Section 313 Cr.P.C.

17.

Kunendra
Pal Singh
was
examined as Defence Witness (DW) by the
accused persons. After conclusion of the
trial, the trial court had convicted the
aforesaid
accused
persons,
namely
Rajkumar Singh s/o Jangbahadur Singh,
Raj Kumar s/o Nanku Singh, Devendra
Singh, Rajendra Singh and Rajendra Singh
@ Gajendra Singh, Omprakash Singh for
the offences under Sections 147, 148,
149/307, 149/302 I.P.C. and they were
sentenced as aforementioned.

18. Being aggrieved by the judgement
and order dated 11.08.2016, five separate
appeals had been filed by the accused
appellants. Criminal Appeal No. 4854 of
2016 was filed by accused persons- Rakesh
Singh s/o Rameshwar Singh and Raj
Kumar s/o Nanku Singh, Criminal Appeal
No. 4607 of 2016 filed by Rajendra @
Gajendra Singh, Criminal Appeal No. 5209
of 2016 was filed by Omprakash Singh and
Criminal Appeal No. 5734 of 2016 was
filed by Devendra Singh s/o Jangbahadur
Singh. So far as the accused/appellant
Raj Kumar son of Jang Bahadur Singh
is concerned, since he has died during
the pendency of the appeal, therefore, his
appeal no. 6009 of 2016 has already been
dismissed as abated vide order dated
30.9.2024. The appellants- Omprakash
Singh s/o Jagdish Singh and Rajendra @
Gajendra Singh s/o Kanhai Singh were
released on bail by this Court. The
appellants Rakesh Singh, Raj Kumar son of
Nanku Singh and Devendra Singh are in
Jail. Now, the above four appeals are left
with us, which are being decided by the
instant common judgement and order, as
the same are arising out of the same
impugned judgement and order and the
same case crime number.

19. Learned counsel for the appellant
has submitted that in the instant case out of
the so many accused persons, one was
absconding and six had died. These appeals
now related to only five convicted accused
persons.

20. As per the defence, indiscriminate
firing was done by all the accused persons
from their 312 bore gun without any
premeditation. It is submitted by learned
counsel for the appellants that there was no
common intention/common object to cause
death to any of the deceased. Therefore, he
880 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that, there was no unlawful
assembly. He further submitted that the
appellants could not be said to be members
of any unlawful assembly. There was a
delayed F.I.R. by six and a half hours and
the appellants were deliberately implicated
who were innocent persons and were going
to attend an engagement ceremony of the
son of one of the co-accused persons. It is
further submitted by learned counsel for the
appellants that PW-3, Satyapal Singh,
during his examination-in-chief, failed to
identify the accused Rajkumar Singh and
named him as Devendra Singh. Thus, he
was either not present on the spot or had
falsely implicated them. Learned counsel
for the appellant further submits that there
are allegations of indiscriminate firing by
all the fourteen persons, however, only two
empty cartridges of 312 bore were
recovered from the spot and even the
indiscriminate firing by the appellants
herein
was
not
proved
against
the
appellants beyond reasonable doubt. As per
PW-2 and PW-3, the specific role of firing
was assigned only against the accused- Anil
Kumar Singh upon the deceased Fakire
Singh and a general role of indiscriminate
firing by others was given. There was no
recovery of any weapon nor was there a
recovery of any incriminating article
whatsoever either from the possession of or
at the pointing out of the appellants herein.

21. Learned counsel for the appellants
further submits that there is a delay of six
and a half hours in reporting the incident,
which had led to the lodging of an
exaggerated version of the actual incident
by implicating innocent persons of the
families of the accused, who were not
actually present at the place of incident.
There is an unexplained delay by the
Investigating Officer in recording the
statements of the injured eye witnesses who
were brought to the police station by the
informant at the time of submitting the
written report. It is further submitted by
learned counsel for the appellants that the
present five appellants had been convicted
by concluding that they were there with a
common object whereas there is no
evidence to establish the common object
forming the unlawful assembly as from
none of the appellants any recovery of
weapon used in the instant case nor any
other incriminating material had been
recovered from their possession.

22. In support of his submissions
learned counsel for the appellants has relied
upon the judgements of Apex Court in
Subal Ghorai v. State of W.B., (2013) 4
SCC 607 (paragraph 53), Charan Singh v.
State of U.P., (2004) 4 SCC 205 (paragraph
13, 14, 15), Haramant Laxmappa Kukkadi
v. State of Karnataka, (1994) 1 SCC 736,
Roy Fernandes v. State of Goa, (2012) 3
SCC 221 (paragraph 27 to 33), Gajanand
& Ors. vs. State of U.P. : AIR 1954 SC
695, Kuna v. State of Odisha, (2018) 1
SCC 296 (paragraph 21 to 23), Rajeevan v.
State of Kerala, (2003) 3 SCC 355
(paragraph 12, 13, 14), Sekaran vs. State of
Tamil Nadu : (2024) 2 SCC 17 (paragraph
14 and 15) and Sattey and Others vs. State
of U.P. : (2019) 106 ACC 469 (paragraph
28).

23. Per contra, learned A.G.A.
submits that from the evidence of the
informant it is apparent that there was
election rivalry between the accused
persons and informant's family. All the
accused persons were passing through the
house of the informant while abusing the
informant and other members of the injured
persons, when they protested and thereafter
the indiscriminate firing was done by all
the accused persons.
4 All. Rakesh Singh & Anr. Vs. State of U.P.
881

24. The delay in lodging the F.I.R. has
been well explained as after the incident the
written report got prepared and thereafter
all the injured persons were put into a
tractor trolley and then they were brought
to the police station, which is around 10-12
kilometres away from the place of incident
and in reaching there it took around three
hours. The incident is of 6:30 P.M. and one
hour had taken place in making the
arrangements and preparing the written
report. Then, three hours had elapsed while
reaching the police station. Thereafter, the
F.I.R. was registered at 1:00 A.M. on
18.05.1997. So, there was no deliberate
delay on the part of the informant, rather,
the written report was got prepared
promptly within an hour. Thus, there was
no occasion for the informant to falsely
implicate any person who was not present.

25. From the prosecution side, there
was sufficient evidence regarding the role
of the accused persons and the arms carried
by each of the accused person's description
had been categorically given in the written
report as well as in the statements recorded
during the course of trial. Therefore, all the
fourteen
persons
armed
with
deadly
weapons had formed a common object of
causing grievous injuries to the injured
persons and in the course of events two
persons had died and five persons were
injured. Even the independent witnesses
had supported the prosecution evidence by
naming all the accused persons, who had
indiscriminately fired on the injured
persons. The moment they had started
firing they had formed an unlawful
assembly and therefore, they were rightly
convicted for the offences under Sections
147, 148, 149/307 and 149/302 I.P.C. Thus,
these appeals are liable to be dismissed and
no interference is called for in the
impugned judgement.

26.

Having
heard
the
rival
submissions made by learned counsel for
the parties this Court has carefully gone
through the record of the case.

Delayed F.I.R.

27. As per the prosecution's case, the
incident of indiscriminate firing by the
fourteen accused persons occurred on
17.05.1997
at
6:30
P.M.
when
the
informant and the other injured persons
were sitting outside their house and the
accused persons equipped with firearms
were passing through the house of the
informant, and they while consuming
liquor had hurled abuses on them. This
when was objected by the injured persons,
then they had indiscriminately fired at them
and caused serious injuries to seven
persons out of which two had died during
treatment due to the injuries caused by
these accused persons. As per the statement
of PW-1, after the occurrence people had
gathered, and thereupon, a written report
was scribed by one Kunendra Singh, which
was kept by the informant and the
arrangements were made to carry the
injured persons to the police station which
was 10-12 Kilometres away from the place
of incident. This took around one hour in
making the arrangements and the injured
persons alongwith informant were carried
by the tractor to the police station. This
again took around three hours to reach to
the police station due to the bad road
conditions.
Thereafter,
police
had
registered the F.I.R. at 1:00 A.M. on
18.05.1997. Thus, as per the informant the
written report was already prepared while
proceeding
to
the
police
station
immediately after the incident, which was
submitted to the police officers after
reaching there on the basis of which the
police has registered the F.I.R. at 1:00
882 INDIAN LAW REPORTS ALLAHABAD SERIES
A.M., on 18.05.1997. According to the
informant, he reached at the police station
around 11-12 O'Clock in the night.
Therefore, there was no delay on the part of
the informant in lodging the F.I.R. and the
delay has been sufficiently explained. Thus,
the delay in registering the F.I.R. about six
and a half hours, has been well explained
thus
has
no
consequence
to
the
prosecution's case.

Unlawful Assembly & Common
Object

28. Before proceeding further it
would be relevant to take note of Sections
141 and 149 I.P.C, which read as under:

"141. 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:

1. To overawe by criminal force,
or show of criminal force, the Central or
any State Government or Parliament or
the Legislatur e of any State, or any
public servant in the exercise of the
lawful power of such public servant; or

2. To resist the execution of any
law, or of any legal process; or

3. To commit any mischief or
criminal trespass, or other offence; or

4. By means of criminal force,
or show of criminal force, to any person
to take or obtain possession of any
property, or to deprive any person of the
enjoyment of a right of way, or of the use
of water or other incorporeal right of
which he is in possession or enjoyment,
or to enforce any right or supposed right;
or

5. By means of criminal force,
or show of criminal force, to compel any
person to do what he is not legally bound to
do, or to omit to do what he is legally
entitled to do."

149. Every member of unlawful
assembly guilty of offence committed in
prosecution of common object.-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 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."

29. In Charan Singh (supra), the
following observations have been made by
the Apex Court with regard to the
applicability of Sections 141 & 149 I.P.C.,
common object etc., which reads as under:

"13. Coming to the others who
were armed with double-barrelled guns and
country-made pistols, the question is
regarding applicability of Section 149 IPC.
Section 149 IPC has its foundation on
constructive liability which is the sine qua
non for its 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 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 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
4 All. Rakesh Singh & Anr. Vs. State of U.P.
883
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 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 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. 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
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 the same assembly."

14. "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 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. 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.
Under the Explanation to Section 141, an
assembly which was not unlawful when it
was assembled, may subsequently become
unlawful. It 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 at the spot eo instanti.

15. 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
884 INDIAN LAW REPORTS ALLAHABAD SERIES
that the offence may fall within the first
part, the offence must be connected
immediately with the common object of
the unlawful assembly of which the
accused was a member. Even if the offence
committed 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 that is the object which is
being pursued is shared by all the members
and they are in general agreement as to
how it 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. Though no hardand-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.
The word "knew" used in the second
branch 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 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
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 in
prosecution of the common object would be
generally, if not always, 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 v. State
of
Mysore [AIR 1956 SC 731 : 1956 Cri LJ
1365] .)"

30. In Chikkarange Gowda v. State
of Mysore, 1956 SCC OnLine SC 65, the
Apex Court has held as under:

"10. It is quite clear to us that on
the finding of the High Court with regard to
the common object of the unlawful
assembly, the conviction of the appellants
for an offence under Section 302 read with
Section 149 Indian Penal Code cannot be
sustained. The first essential element of
Section 149 is the commission of an offence
by any member of an unlawful assembly;
the second essential part is that the offence
must be committed in prosecution of the
common object. In the case before us, the
learned Judges of the High Court held that
the common object of the unlawful
assembly was merely to administer a
chastisement to Putte Gowda. The learned
Judges of the High Court did not hold that
though the common object was to chastise
Putte Gowda, the members of the unlawful
assembly knew that Putte Gowda was likely
4 All. Rakesh Singh & Anr. Vs. State of U.P.
885
to be killed in prosecution of that common
object. That being the position, the
conviction under Section 302 read with
Section 149 Indian Penal Code was not
justified in law."

31. In Mizaji v. State of U.P., 1958
SCC OnLine SC 95, the Apex Court has
held as under:

"6. This section has been the
subject-matter of interpretation in the
various High Courts of India, but every
case has to be decided on its own facts. The
first part of the section means that the
offence committed in prosecution of the
common object must be one which is
committed with a view to accomplish the
common object. It is not necessary that
there should be a preconcert in the sense of
a meeting of the members of the unlawful
assembly as to the common object; it is
enough if it is adopted by all the members
and is shared by all of them. In order that
the case may fall under the first part the
offence committed must be connected
immediately with the common object of the
unlawful assembly of which the accused
were members. Even if the offence
committed is not in direct prosecution of
the common object of the assembly, it may
yet fall under Section 149 if it can be held
that the offence was such as the members
knew was likely to be committed. The
expression 'know' does not mean a mere
possibility, such as might or might not
happen. For instance, it is a matter of
common knowledge that when in a village a
body of heavily armed men set out to take a
woman by force, someone is likely to be
killed and all the members of the unlawful
assembly must be aware of that likelihood
and would be guilty under the second part
of Section 149. Similarly, if a body of
persons
go
armed
to
take
forcible
possession of the land, it would be equally
right to say that they have the knowledge
that murder is likely to committed if the
circumstances as to the weapons carried
and other conduct of the members of the
unlawful assembly clearly point to such
knowledge on the part of them all.
............[]."

32. In Shambhu Nath Singh v. State
of Bihar, 1959 SCC OnLine SC 27, the
Apex Court has held as under:

"6. Section 149 of
the Penal
Code is declaratory of the vicarious
liability of the members of an unlawful
assembly for acts done in prosecution of the
common object of that assembly or for such
offences as the members of the unlawful
assembly knew to be likely to be committed
in prosecution of that object. If an unlawful
assembly is formed with the common object
of committing an offence and if that offence
is committed in prosecution of the object by
any member of the unlawful assembly, all
the members of the assembly will be
vicariously liable for that offence even if
one or more, but not all committed the
offence. Again, if an offence is committed
by a member of an unlawful assembly and
that offence is one which the members of
the unlawful assembly knew to be likely to
be committed in prosecution of the common
object, every member who had that
knowledge will be guilty of the offence so
committed.