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2016 (10) TMI 1106 - SC - Indian LawsCrowd of unlawful assembly commits an offence - conviction and sentence under Section 302/149 of the IPC - Held that:- Offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly, arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants All the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concerned (A2 has already died) all the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302/149 of the IPC has to be upheld. For the above reasons, this appeal is partly allowed to the extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody, if not required in any other case. Appeal of other appellants is dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale and Krishna Sakharam Koyale) will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month, they will continue to remain on bail thereafter till the decision of the said application by the appropriate authority. If their application for remission is not accepted, they will surrender to serve out the remaining sentence.
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