5. Since legitimacy of the consecutive life sentences in the light of Section 31 of the Code of Criminal Procedure (in short ‘Cr.P.C.) was challenged in these appeals, before arriving at the conclusive findings, a three-Judge Bench of this Court referred the matter to larger Bench and the said larger Bench – Constitution Bench, vide its judgment dated 19.07.2016, examined the legitimacy of consecutive sentences of life imprisonment and held that “while multiple sentences of imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively.” The Constitution Bench further held as follows:
“The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoners shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.”
LEGALITY OF SECTION 34 IPC – COMMON INTENTION: 10. Having heard the learned counsel on both sides, the legality of the conviction under Section 302 read with Section 149, has been found disputed. As regards the case in the light of common intention as per Section 34 IPC, this Court in Devi Lal Vs. State of Rajasthan, (1971) 3 SCC 471, in para 13 held that “the words ‘in furtherance of the common intention of all’ are a most essential part of Section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. The common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan.”
11. But this case doesn’t appear to fulfill the essentials of common intention. The emphasis of such sort of constructive liability and the legality of conviction by applying Section 34 or Section 149 IPC, have been examined by Courts in several cases. In Willie (William) Stanley Vs. State of M.P., AIR 1956 SC 116, it was held as follows:
“Section 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regarding actual participants, accessories and men actuated by a common object or a common intention and ‘the charge is rolled-up one involving the direct liability and the constructive liability’ without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for a substantive offence without a charge can be set aside, prejudice will have to be made out.”
12. Moreover, a distinction between ‘’common intention’ and ‘common object’ was made out by this Court in the case of Chhitarmal Vs. State of Rajasthan, (2003) 2 SCC 266 as under:
“A clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34.”
15. Before arriving at the conclusion, we wish to supply emphasis in the case of Mohan Singh Vs. State of Punjab, AIR 1963 SC 174 = 192 Supp (3) SCR 848, where the law on common object in an unlawful assembly was explained as under:
“8. The true legal position in regard to the essential ingredients of an offence specified by s.149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such 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. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must have been committed by any member of an unlawful assembly, and s. 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course; the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more.”
16. Moreover, in the case of Mahadeo Singh Vs. State of Bihar, (1970) 3 SCC 46, it was observed by this Court:
“10. In the present case the facts and the circumstances show that the assault and the demolition of the stairs of the well took place in the same transaction because the members of the unlawful assembly attacked Ram Prasad and his Page 15 15 people and injured some of them simultaneously or in ‘quick succession. Sarjug Mahto and Suraj Mahto both said that at the instigation of accused Ram Charan accused Manogi gave a bhala blow near the left elbow of Sarjug Mahto. Sarjug also said that accused Sheo Pujan gave him a bhala blow below the elbow of the left hand and the appellant gave him a bhala blow on the finger of right hand. According to Suraj Mahto the appellant struck Sarjug Mahto on the finger of his right hand. Suraj and Sarjug then raised an alarm. On hearing the alarm Ram Prasad, Bharat and Lakhan came. Ram Prasad protested to the accused against the attack on Sarjug Mahto. At the instigation of accused Ram Charan accused Rajballam struck Ram Prasad With a bhala. Ram Prasad fell down and died there. Ram Lakhan then struck Bharat with a garasa. Ram Charan struck him on the head with a bhala. The assailants then fled away. The evidence proves that the common object of all the members of the assembly was that murder was likely to be committed in prosecution of a common object, namely, to commit murder, assault, mischief and criminal trespass. All the members of the assembly were armed with weapons; they knew that murder was to be committed in prosecution of that object. It cannot, therefore, be said that the appellant is not guilty of the charge under Sections 302/149 of the Indian Penal Code.”
17. However, an overt act is not always an inflexible requirement of rule of law to establish culpability of a member of an unlawful assembly. The crucial question is whether the assembly entertained a common unlawful object and whether the accused was one of the members of such an assembly by intentionally joining it or by continuing in it being aware of the facts which rendered the assembly unlawful. Without unlawful object no assembly becomes an unlawful assembly.
18. Further, in paragraph 6 of Shambhunath Singh Vs. State of Bihar, AIR 1960 SC 725, it was held by this Court:
“Section 149 of the Indian 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. But “members of an unlawful assembly may have a community of object upto 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 of the Indian Penal Code may be different on different members of the same unlawful assembly.” Jahiruddin v. Queen Empress, ILR 22 Cal Page 17 17 306.”
19. Furthermore, in the case of Mizaji Vs. State of UP, AIR 1959 SC 572, this Court observed:
“From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the murder must be held to be immediately connected with the common object and therefore the case falls under s.149, Indian Penal Code and they are all guilty of murder. This evidence of Hansram and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession.”
‘Conviction upheld’
PARTY: MUTHURAMALINGAM & ORS.vs. STATE REPRESENTED BY INSPECTOR OF POLICE – CRIMINAL APPEAL NOS.231-233 OF 2009 – December 9, 2016.
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