# Ram Lalak & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Criminal Appeal No. 1878 of 1991
- **Bench:** Pankaj Naqvi, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lalak-ors-in-jail-v-state-of-u-p-45185
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code -
Sections
302/149
-
Appeal
against
conviction.

Criminal Law - Indian Penal Code -
Sections 141, 142, 149 - Are discussed.
The role of A-1 to A-3 is concerned, same was
undoubtedly established with the evidence of
P.W-1 and 2 unequivocally. Learned Counsel
for A-1 to A-3 in all fairness submitted that in
view of direct clinching evidence he is not in a
position to assail their conviction. We too,
independent of his submission find that there
was strong previous enmity between both the
faction, a day light occurrence supported by
testimony of injured witnesses and nothing has
been elicited in their cross examination to
doubt
their
credibility,
prosecution
has
established its case beyond reasonable doubt
against all the appellants, the appeal is bereft
of merits, liable to be dismissed.

Appeal is rejected. (E-2)

List of cases cited: -

## Text

1 All. Ram Lalak & Ors. Vs. State of U.P.
131
concerned forthwith, failing which the
court will issue non-bailable warrant
against them. In compliance, if accusedHari Shanker and Radhey Shyam appear
or brought before the court, concerned
they shall be sent to jail by warrant for
their sentences as awarded by trial court.

53. Let the copy of the judgment be
sent to court concerned forthwith for
compliance.

54. Accordingly, the appeal is
dismissed.

55. No order as to costs.
----------
(2020)1ILR A131

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 1878 of 1991

Ram Lalak & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Anita Tripathi, Sri
Keshawa Prasad Pandey, Sri Krishna
Chandra Pandey, Sri Prashant Vyas

Counsel for the Opposite Party:
A.G.A., Sri Majahar Ali, Sri Raj Bahadur, Sri
Rahul Kumar

Criminal Law - Indian Penal Code -
Sections
302/149
-
Appeal
against
conviction.

Criminal Law - Indian Penal Code -
Sections 141, 142, 149 - Are discussed.
The role of A-1 to A-3 is concerned, same was
undoubtedly established with the evidence of
P.W-1 and 2 unequivocally. Learned Counsel
for A-1 to A-3 in all fairness submitted that in
view of direct clinching evidence he is not in a
position to assail their conviction. We too,
independent of his submission find that there
was strong previous enmity between both the
faction, a day light occurrence supported by
testimony of injured witnesses and nothing has
been elicited in their cross examination to
doubt
their
credibility,
prosecution
has
established its case beyond reasonable doubt
against all the appellants, the appeal is bereft
of merits, liable to be dismissed.

Appeal is rejected. (E-2)

List of cases cited: -

1. Maiyadin & 4 ors Vs. St. 1973 (43) A.W.R 266

2. Mizaji Vs. St. of U.P A.I.R 1959 AIR (SC),
572

(Delivered by Hon'ble Pankaj Naqvi, J.)

This appeal has been preferred
against the judgment and order dated
26.9.1991 passed by Sessions Judge, Basti
in S.T. no.33 of 1986, whereby appellants
have been convicted/sentenced under
Sections 302/149 IPC for life along with
ancillary sentences.

1. The prosecution case is comprised
in two parts:-

The first part alleged that there is
a mango grove across the house of P.W1/the informant, belonging to the family of
the informant. On 20.5.1984 at about 10 in
the morning while P.W-1 was plucking
mangoes, accused Ram Lalak (A-1),
Bajrangi
(A-4)
(real
brothers)
and
Devmani (A-2), Indramani (A-5) (real
brothers) dissuaded P.W-1 from plucking
mangoes. P.W-1 replied that trees have
132 INDIAN LAW REPORTS ALLAHABAD SERIES
been planted by his father and ancestors,
as such he was plucking them. Accused
went back hurling abuses.

2. The second part alleged that on the
same day while P.W-1 was tethering livestock
in the grove, accused Ramlalak (A-1) with a
DBBL gun, Devmani (A-2) and Ramchand
(A-3) with SBBL guns, Indramani (A-5) and
Rammilan (A-6) with lathis, and Bajrangi (A4) with ballam came, out of whom,
Ramlalak(A-1) exhorted P.W-1 that he better
not move as he wanted to teach him a lesson.
P.W-1 sensing trouble attempted to flee
towards his house while raising cries for help.
Dwarika
(P.W.2),
Ramdas,
(deceased)
(relatives of P.W-1) and Ayodhya ran to rescue
PW-1. Accused Ramlalak (A-1), Devmani (A2) and Ramchand (A-3) fired at P.W-1 which
hit him on his head, waist and legs. The
witnesses dissuaded the accused persons from
doing so. Accused too exhorted the witnesses
to stay away, upon which accused Ramlalak,
Devmani and Ramchandra fired at Ramdas
(deceased) and Dwarika (P.W-2). Ramdas
(deceased) succumbed to the injuries on the
spot. Dwarika (P.W-2) and Ayodhya (not
examined) sustained pellete injuries, thereafter
accused Bajrangi (A-4) inflicted ballam blow
at Dwarika (P.W-2) on his waist, who fell
down, followed by lathi blows on him by
Indramani (A-5) and Rammilan (A-6). P.W-1
subsequently
learnt
that
the
accused
Ramnarayan with a view to eliminate P.W-1
and his family had lent licensed ams belonging
to his family to accused Ramlalak (A-1),
Devmani (A-2) and Ramchandra (A-3).

3. The accused were charged under
sections 27 and 28 of the Arms Act, 120B,302/109,147,148, 307/149 and 302/149
IPC.

4. Accused alleged that the trees
were sown by father of Devmani (A-2) i.e,
Gaya Prasad and they have been falsely
implicated. No defence evidence was led.

5. The trial court after analysing the
evidence
finding
ocular
evidence
compatible
with
the
medical
while
convicting
the
appellants
as
above
acquitted accused Ram Narayan, Ravindra,
Umashankar and Master Badri Vishal for
the role of conspiracy.

6. During pendency of appeal, A-6/
Rammilan died, his appeal has already
been abated.

7. Heard Sri G.S. Chaturvedi, learned
Senior Advocate assisted by Sri Prashant
Vyas, for the appellants, Sri Ran Vijai
Chaubey and Sri Raj Bahadur, learned
counsel for the informant and Sri A.N.
Mulla, the learned A.G.A.

8. The Learned Senior Counsel for the
appellants argued that conviction of A-4 and
A-5 i,e, Bajrangi and Indramani under section
302/149 IPC is not sustainable as the said
appellants were not likely to know that A-1,
A-2 and A-3 would also commit the murder
of Ramdas as the common object of all the
appellants was to harm P.W-1 only with
whom an altercation had taken place in the
morning. He thus submits that the death of
Ramdas was not a part of common object of
A-4 and A-5. He placed reliance on
Maiyadin and others vs. State 1973 (43)
A.W.R 266.

9. The learned A.G.A, and the
learned counsel for the informant opposed
the submission on the ground that once an
unlawful assembly is formed which is also
armed with lethal weapons, then each and
every member of such an assembly would
be
vicariously
liable
for
the
acts
committed by any of the members. He
1 All. Ram Lalak & Ors. Vs. State of U.P.
133
further submitted that the common object
of the unlawful assembly was not only to
harm P.W-1 but also any other person who
posed a threat for the appellants to enjoy
the fruits of the trees including the
deceased who is alleged to have sown the
trees.

10. We before adverting to the
evidence deem appropriate to discuss in
brief the provisions relating to offences
committed by an unlawful assembly.

11. Section 141 IPC provides that an
assembly of 5 or more persons is
considered an "unlawful assembly" if the
common object of the persons comprising
the assembly is one of the acts mentioned
therein. Section 142 IPC provides that if a
person intentionally joins the unlawful
assembly, then he is said to be a member
of such assembly.

12. Section 149 IPC can be split for
convenience into 3 parts:-

(I) If an offence is committed by
any member of an unlawful assembly in
prosecution of the common object of that
assembly, or

(II) such as the members of that
assembly knew to be likely to be committed
in prosecution of that object,

(III) every person who, at the
time of the committing of that offence, is a
member of the same assembly, is guilty of
that offence.

13. The first part would make every
members of an unlawful assembly liable if
an offence is committed in prosecution of
common object i.e, each member of the
unlawful assembly is aware of the
common object and the offence committed
must be connected immediately with the
common object of the unlawful assembly.
For example if 5 or more persons
constituting an unlawful assembly of
which the common object is to assault a
particular person then all such members
would be vicariously responsible for the
acts committed by any of them in
assaulting that particular person.

14. The second part makes the
members of an unlawful assembly liable
vicariously only if the members of the
unlawful assembly have the knowledge that
an offence is likely to be committed in the
prosecution
of
the
common
object.
Conversely, if the act complained of is
absolutely distinct having no nexus with the
common object those members cannot be
made vicariously liable who have not
committed any overt act as in such an
eventuality the members who commit such
overt act which is not likely to be committed
in prosecution of common object, would be
individually responsible for their acts.

15. Third part makes each person
vicariously
liable
for
the
offence
committed, who was the member of the
unlawful
assembly
at
the
time
of
committing the offence, whether such
member
individually
committed
the
offence or not, is of no consequence.

16. The scope of Section 149 IPC has
been explained in the leading judgement of
the Apex Court in Mizaji vs. State of U.P
A.I.R 1959 AIR (SC), 572. Para-6 thereof
is extracted hereunder:-

6. This section has been the
subject matter of interpretation in the
various High Court 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
134 INDIAN LAW REPORTS ALLAHABAD SERIES
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 be
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. There is a great deal to be said
for the opinion of Couch, C.J., in Sabid
Ali's case (1873) 20 W.R. 5, that 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. The distinction between the
two parts of section 149, Indian Penal Code
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
of section 149 as explained above 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.

17. We in the light of above legal
position proceed to examine as to whether
in
the
light
of
the
evidence,
the
prosecution has been able to establish the
guilt of A- 4 and A-5 under the second
part of Section 149 IPC?

18. The informants and the accused
are members of the same family. There is
animosity between the two over fruit
bearing trees. A-1 to A-3 were armed with
guns
Bajrangi
(A-4)
with
Ballam,
Indramani (A-5) and Rammilan/(A-6)
(since deceased) armed with lathis. P.W.1
alleged that the fruit bearing trees had
been
sown
by
his
uncle/Ramdas
(deceased), while appellant Ramlalak
exhorted other accused not to spare P.W-1.
Ramdas (deceased) alongwith Dwarika
and Ayodhya were present in the near
vicinity of P.W-1. While appellants were
assaulting P.W-1, deceased alongwith
Dwarka and Ayodhya sought to intervene,
so as to dissuade the appellants. All the
appellants exhorted that interveners stay
away. A-1 to A-3 fired at Ramdas
(deceased) and Dwarka while P.W-2 was
being assaulted by Bajrangi with a ballam
(pointed weapon).

19. Once all the appellants are
armed with lethal weapons, the common
1 All. Ram Lalak & Ors. Vs. State of U.P.
135
object as sought to be bifurcated by
learned senior counsel for appellants only
qua P.W-1 cannot be sustained as the
deceased had sown the seeds of the fruit
bearing trees, which were being plucked
in the earlier part of the day by P.W-1
(nephew of the deceased), to which all the
4 accused had taken an offence. The
deceased was not a rank outsider who can
be said to have no interest in the dispute
between P.W-1 and the appellants. P.W-1
is a close blood relative of the deceased,
was being attacked with lethal weapons.
It was but natural for the deceased (Ram
Das) alongwith Dwarka and Ayodhya
(family members of P.W-1) to make an
attempt to rescue P.W-1. The appellants
instead of acceding to the request of the
deceased, attacked not only Ramdas
(deceased)
but
also
persons
accompanying him i.e, Dwarika and
Ayodhya. The object of the appellants
cannot be bifurcated qua P.W-1 and the
deceased. Thus in view of above A-4 and
A-5 cannot feign ignorance that they had
no knowledge that such assault was likely
to be made on Ramdas in prosecution of
the common object.

20. We have perused the judgment of
Maiyadeen (supra) and are of the view
that the said decision would not come to
the rescue of appellants as in the said case
Maiyadeen (injured) and Babulal-deceased
were cutting their crops. The evidence
indicated
that
the
said
appellants'
grievance was against Khushali as the
latter was cutting the crops at the fields at
which there was dispute between them.
The said appellants chased Khushali.
While the chase was on Maiyadeen and
Babulal sought to intervene. One of the
appellants therein assaulted them as a
result
of
which
Babulal
died
and
Maiyadeen got injured. The said appellants
never resisted Maiyadeen and Babulal
from cutting the crops. On such evidence
appellants therein were not convicted with
the aid of Section 149 IPC as the common
object of the unlawful assembly was to
harm Khusali.

21. We find that in so far the role
of A-1 to A-3 is concerned, same was
undoubtedly
established
with
the
evidence of P.W-1 and 2 unequivocally.
Learned Senior Counsel for A- 1 to A-3
in all fairness submitted that in view of
direct clinching evidence he is not in a
position to assail their conviction. We
too, independent of his submission find
that there was strong previous enmity
between both the faction, a day light
occurrence supported by testimony of
injured witnesses and nothing has been
elicited in their cross-examination to
doubt their credibility, prosecution has
established its case beyond reasonable
doubt against all the appellants, the
appeal is bereft of merits, liable to be
dismissed.

22. The appeal is dismissed. The
appellants are on bail. Their bail bonds
stand cancelled. They shall be taken into
custody forthwith to serve the remainder
sentence.

23. Let a copy of this judgement
along with records be sent to the learned
Sessions Judge, for compliance and
intimation to this court within 2 months.
----------
(2020)1ILR A135

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.