Person in mob need not assault to be convicted: Supreme Court

NEW DELHI: The Supreme Court has reiterated that it is not necessary that a person who is part of an unlawful mob must have actually assaulted someone for being convicted for the offence, a point of law that was settled way back in 1964.
In the 'Masalti vs State of UP' case in 1964, a constitution bench had said Section 149 of IPC made it clear that if an offence was 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, was a member of the same assembly was guilty of that offence.

Relying on the 1964 verdict, a bench of Justices B R Gavai, B V Nagarathna and Prashant Kumar Mishra said, "It could thus clearly be seen that the constitution bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly, i.e. he has to be one of the persons constituting the assembly and that he had entertained the common object, along with the other members of the assembly."
On October 12, another SC bench had passed a similar order on unlawful assembly and had said that a person could be convicted for an offence committed by a mob only if he shared a common object of unlawful assembly and he was aware of the offences likely to be committed to achieve the said common object.
"This provision (Section 149) does not create a separate offence but only declares vicarious liability of all members of unlawful assembly for acts done in common object. Thus, in order to attract Section 149 of the Code, it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in furtherance of the common object. Even if no overt act is imputed to the accused, the presence of the accused as part of the unlawful assembly is sufficient for conviction. The inference of a common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the end result," the bench had said.
"To convict a person under Section 149 IPC, prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly, and secondly, it has to prove that they were aware of the offences likely to be committed to achieve the said common object," the bench had said.