The ingredients of this section are the commission of an offence by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly, or must be such as the members of the assembly knew to be likely to be committed. The object of the section is that an accused person whose case falls within its terms cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. It is clear that persons not sharing the common object cannot be liable constructively. Thus, a member of an unlawful assembly retiring from the assembly and taking no further part cannot be liable for subsequent murder committed by the assembly.
In order to attract the provisions of S. 149, the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of Section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with Sections 96 to 104 dealing with the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression “to enforce any right or supposed right” in the fourth clause of Section 141. (State of Bihar v. Nathu, A.
I.R. 1970 S.C. 127). It was observed by their Lordships of the Supreme Court in Chandrika Prasad Singh v. The State of Bihar, (1972)1 S.
C.J., 492 that it was difficult to sustain the argument that no overt act has been proved against the appellants and, therefore, they were entitled to be acquitted. The High Court had observed that most of the appellants had indulged in overt acts and has assaulted the deceased. If the other appellants were members of the assembly the unlawful common object of which developed at the spot and they continued as its members, then they were clearly liable to be proceeded against the convicted.
From the finding of the High Court it was clear that the appellants were present at the spot at the time of the occurrence not merely as passive or innocent spectators without intending to share the common object of the assembly nor did they happen to be there, out of idle curiosity, content with merely gazing on, having nothing to do with the assault. The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141, I.P.C. It is not the prosecution case that apart from the seven accused persons there were some other identified persons who were involved in the crime. The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Section 148 and on applying Section 149, I.P.
C. on the ground that they formed an unlawful assembly along with some unidentified persons. The prosecution case from the very beginning was that A-l to A-7, the named persons, formed the unlawful assembly. A-4 to A-7 having been acquitted, the remaining three appellants cannot be convicted under Section 148 and on applying Section 149, I.P.C. (Nethala Pothuraju and others v. State of Andhra Pradesh, 1991 JIC 759, S.
C.) The question still remains as to whether the appellants can be convicted under Section 302, read with Section 34, 1.P.C. Both sections 149 and 34, I.P.
C. deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of Section 149, I.P.
C. is, therefore, no bar in convicting the appellants under Section 302, read with Section 34, I.P.C.
, if the evidence discloses commission of an offence in furtherance of common intention of them, all. (Ibid.)