A Study of offences against Unlawful Assembly

Offence committed by a member of Unlawful assembly, makes all member of unlawful assembly liable
Abstract:

Introduction:
The study deals about the offences that are against the Unlawful Assembly and the punishment given
for the people indulging in activities.
Statistical data about the offences against Unlawful assembly are discussed systematically.
Under IPC public offences are categorized into four, One of which is Unlawful Assembly.
The definition of Unlawful Assembly is given in section 141 of IPC.

Review of Literature:

S 141: Unlawful Assembly:

An Assembly of five or more persons is Unlawful Assembly.

Essential ingredients of Unlawful Assembly:

1)There must be necessarily be five or more than five persons sharing the common object. When
there is only four individual shared common object or presence of fifth individual is not proved; it
cannot be considered an unlawful assembly.

2)There must be use of Criminal force and compel any person to do what he is not legally bound to
do.

3)There should be mischief or some Criminal trespass or some other offence.

4)There must be use of Criminal force against state or central government or any public servant.

Article 19(1) (B) of the Indian Constitution 1950 gives Fundamental Right to assemble peacefully
however IPC seeks to criminalize an unlawful assembly

Section 142 deals with a member of unlawful assembly. Whoever knows the fact that it is unlawful
Assembly and intensionally joins in that, or continues in it is said to be a member of Unlawful
Assembly. Every member of Unlawful Assembly must have a common object. Every member of the
unlawful assembly is vicariously liable for the offence committed by the member in a unlawful
assembly by the prosecution of the common object.
Section 143 imposes punishment on the person who is the member of the unlawful assembly. This
section gives punishment which may extend upto six years or fine or both.

Under section 149, Every member of unlawful assembly would be guilty of offence committed in
prosecution of common object.

This section imposes a constructive penal liability.

In order to fasten vicarious responsibility on any member of an unlawful assembly, there must be a
nexus between the common object and the offence committed and if it is found, every member of the
assembly will become liable.

It must be within the knowledge of other members as one likely to be committed in prosecution of the
common object.

In Allaudin Mian vs. State of Bihar, Where the common object of the unlawful assembly was to kill the
father of the deceased girls and on frustration of that object in consequence of the father who had
gone inside the house to fetch a spear, having been prevented from coming out of the house by his
wife, two of the accused killed the deceased, other accused could not be punished for the acts of
killing for accomplishing the common object it was not necessary to kill the two girls who were not
hindrance to accused in question from accomplishing their common object.

In prosecution of the common object– “In prosecution of the common object “does not
mean” the persuasion of the common object of the assembly. The words” in prosecution the common
object” show that the offense committed was immediately linked to the common object of the
assembly of which the accused were members. The act must be the way it was done to achieve the
common purpose attributed to the members of the unlawful assembly. The words “in
the prosecution of the common object” must be interpreted strictly as equivalent to “in order to achieve
the common object.”

(B) Members knew to be likely- the second part refers to a situation in which members of the
assembly knew that the offense was likely to be committed in prosecuting the common object. A thing
is likely to occur only when it will probably occur or may very well occur/happen. At the time of the
commission of an offense, the word’ knew’ indicates a state of mind and not the latter. Knowledge
must be proved. The word’ likely’ means some strong proof that such knowledge was available to the
unlawful assembly. The prosecution must show that not only did the accused know that the offense
was likely to be committed, but also that it was likely to be committed in prosecuting the assembly’s
common object.

If unlawful assembly has not prosecuted for the common object but prosected for other
offence, what would be the punishment. Is it valid to punish Death Sentence.

It is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of
rare’ cases which are of an exceptional nature. Unless the nature of the crime and the circumstances
of the offender reveal that the criminal is a menace to the society and the sentence of life
imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser
punishment and not the extreme punishment of death which should be reserved for exceptional cases
only.

In Allaudin Mian vs. State of Bihar,Where in a case of murder the material for choice of sentence was
scanty and the motive for the crime was obscure and the killings were not for gain and the charge
showed that the target was the father of the deceased and not the two infant daughters who were
killed and the killing was not in the contemplation of any of the accused and the infants were the
victims of the offenders’ ire resulting from frustration at the escape of their target i.e. father, there was
nothing so uncommon about the crime as to make the case an exceptional one and the mere fact that
infants were killed, without more, was not sufficient to bring the case within the category of ‘the rarest
of rare’ cases.

whether the imposition of death penalty on the two accused persons found guilty of murder is justified.
The Trial Court has dealt with the question of sentence. The reason which weighed with the Trial
Court is: it is one of the gravest cases of extreme culpability in which two innocent and helpless
babies were butchered in a barbarous manner. After taking note of the mitigating circumstances that
both the offenders were married young men with children, the Trial Court found that since the murders
were committed without provocation and in cold blood there, was no room for leniency as the crime
was so abhorrent that it shocked the conscience of the court. The High Court while maintaining the
conviction of the said two accused persons proceeded to deal with the question of sentence.

However, in order that the sentences may be properly graded to fit the degree of gravity of each case,
it is necessary that the maximum sentence prescribed by law should,as observed in Bachan
Singh case , be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Sentences
of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to
provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to
protect the community from further similar conduct. It serves a three-fold purpose (i) punitive (ii)
deterrent and (iii) protective.
That is why this Court in Bachan Singh’s case observed that when the question of choice of
sentence is under consideration the Court must not only look to the crime and the victim but also the
circumstances of the criminal and the impact of the crime on the community. Unless the nature of the
crime and the circumstances of the offender reveal that the criminal is a menace to the society and
the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose
the lessor punishment and not the extreme punishment of death which should be reserved for
exceptional cases only.
In the subsequent decision of Machhi Singh v. State of Punjab, the court observed that only in
those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the
collective conscience of the community, would it be permissible to award the death sentence.
In the present case, unfortunately the material for choice of sentence is scanty. The motive for the
crime is obscure, the one stated, namely, the quarrel between two infants of both sides, does not
seem to be correct. The killings were not for gain. Both the girls were the victims of the offenders’ ire
resulting from frustration at the escape of their target. There is nothing uncommon about the crime as
to make the case an exceptional one. The mere fact that infants are killed, without more, is not
sufficient to bring the case within the category of ‘the rarest of rare’ cases.

In Bachan Singh case the question of laying down standards for categorising cases in which the
death penalty could be imposed was considered and it was felt that it would be desirable to indicate
the broad guidelines consistent with section 354(3) of the Code without attempting to formulate rigid
standards. That was because it was felt that standardisation of the sentencing process would leave
little room for judicial discretion to take account of variations in culpability even within the same
category of cases. After referring to the aggravating circumstances pointed out by counsel, the Court
observed that while ‘these, were relevant factors it would not be desirable to fetter judicial discretion. It
pointed out that these factors were not exhaustive and cautioned: ‘courts, aided by broad illustrative
guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and
human concern’ consistent with Section 354(3) of the Code.

In the subsequent decision in  Machhi Singh case, the Court tried to indicate the type of cases which
may fall within the exceptional class without attempting to introduce rigidity. It would not be fair to read
the decision as an attempt to fetter judicial discretion. Even in cases of the type indicated in that case,
circumstances may vary, which would necessitate a different approach.

For example, the circumstances of this case show that the offenders had killed the two girls not
because of any hatred for them or to accomplish their objective but out of frustration and anger at
having lost their target. Unfortunately as the trial Judge did not give time to the convicts to reflect on
the question of sentence, the chance, however remote, of the true motive for the crime surfacing was
lost. The antecedents of the accused, their socioeconomic conditions, the impact of their crime on the
community etc., have not come on record. The absence of these particulars makes the choice of
punishment difficult. In view of what we have observed earlier and having regard to the circumstances
in which the murders took place, we think the extreme punishment of death is not warranted.

In the result both the appeals, he conviction of accused Nos. 1 and 2 under all the heads is confirmed
but their sentence of death for killing two infants, is converted to imprisonment for life. So far as
accused Nos. 3 to 6 are concerned, their conviction and sentence under Section 326 149, 1.P.C. is
set aside; however, their conviction and sentence under the other heads is maintained. The appeals
will stand disposed of accordingly.

https://dullbonline.wordpress.com/2017/07/21/allauddin-mian-v-state-of-bihar-air-1989-sc-1456/

2.7.4 In Allauddin Mian and others v. State of Bihar, (1989) 3 SCC 5, the Supreme Court laid down
certain broad guidelines for determining choice of sentence by Courts. It will be useful to refer to them
as under:

"In our justice delivery system several difficult decisions are left to the presiding officers, sometimes
without providing the scales or the weights for the same. In cases of murder, however, since the
choice is between capital punishment and life imprisonment the legislature has provided a guideline in
the form of sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973 ("the Code") which
reads as under:
When the conviction is for an offence punishable with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special reason for such sentence.

This provision makes it obligatory in cases of conviction for an offence punishable with death or with
imprisonment for life or for a term of years to assign reasons in support of the sentence awarded to
the convict and further ordains that in case the judge awards the death penalty, "special reasons" for
such sentence shall be stated in the judgment.

When the law casts a duty on the judge to state reasons it follows that he is under a legal obligation to
explain his choice of the sentence. It may seem trite to say so, but the existence of the 'special
reasons clause' in the above provision implies that the court can in fit cases impose the extreme
penalty of death.

Where a sentence of severity is imposed, it is imperative that the judge should indicate the basis upon
which he considers a sentence of that magnitude justified. Unless there are special reasons, special
to the facts of the particular case, which can be catalogued as justifying a severe punishment the
judge would not award the death sentence. It may be stated that if a judge finds that he is unable to
explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice
should fall on the lower sentence. In all such cases the law casts an obligation on the judge to make
his choice after carefully examining the pros and cons of each case.

Since the legislature in its wisdom though that in some rare cases it may still be necessary to impose
the extreme punishment of death to deter others and to protect the society and in a given case the
country, it left the choice of sentence to the judiciary with the rider that the judge may visit the convict
with the extreme punishment provided there exist special reasons for so doing.

There are only a few cases where a minimum punishment is prescribed. The question then is what
procedure does the judge follow for determining the punishment to be imposed in each case to fit the
crime? The choice has to be made after following the procedure set out in sub-section (2) of Section
235 of the Code. The subsection reads as under:

If the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of
Section 360, hear the accused on the question of sentence, and then pass sentence on him according
to law.

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a
fundamental requirement of fair play that the accused who was hitherto concentrating on the
prosecution evidence on the question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This is all the more necessary
since the courts are generally required to make the choice from a wide range of discretion in the
matter of sentencing.

To assist the court in determining the correct sentence to be imposed the legislature introduced sub-
section (2) to Section 235.The said provision therefore satisfies a dual purpose; it satisfies the rule o
natural justice by according to the accused an opportunity of being heard on the question of sentence
and at the same time helps the court to choose the sentence to be awarded. Since the provision is
intended to give the accused an opportunity to place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt that the provision is salutary and must be
strictly followed. It is clearly mandatory and should not be treated as a mere formality.

  An offense committed by members of an unlawful assembly-The Supreme Court

in Yunis vs. Madhya Pradesh State held that the presence of the accused as part of an
unlawful assembly was sufficient for the conviction to be held. The fact that the accused
was a participant of the unlawful assembly and his presence on the spot of the event is
adequate to hold him liable even if he is not accused of any overt act. However, mere
 presence in an unlawful assembly cannot make an individual responsible unless he is
acting by common object and that object is one of the objects set out in Section 141.

 https://blog.ipleaders.in/comparative-analysis-of-sec-34-and-149-ipc-1860-with-judicial-
interpretations/

Crime : A legal Category that entails violence against persons or property

Violence includes – Political violence and non political direct violence

Non political direct violence includes physical harm done to people without
a political aim

https://www.semanticscholar.org/paper/Peace-Without-Tranquility.-A-
comparative-analysis-Meyer/96daa62eed38ca06e771d789f00045b7593efb42

https://blog.ipleaders.in/comparative-analysis-of-sec-34-and-149-ipc-1860-with-judicial-interpretations/

When an unlawful assembly exercises the right of private defence and at that time when the opposite
party attacks them, the the right to private defence cannot be considered as the common intention.
(Pawlowski 2004)

State of U.P VS Sughar Singh: Five accessed were lying in a bush on either side of a lane, with
armed guns. When the deceased came near, the accused 4 and 5 exhorted him, and accuses nos 1,
2 and 3 shot the deceased with their guns respectively. Accused 1, 2 and 3 threatened the witnesses.
The trial court held that all of these were sufficient to come to the conclusion that these five accused
had constituted an unlawful assembly and has members had common object to kill the deceased.
They had a prearranged plan. The trial court convicted the accused. On appeal, the high court
quashed the conviction. The state appealed to the supreme court. The supreme court upheld the

Vicarious liability in IPC is one of those obligations that might be placed on one person for another
person’s actions or crimes. The concept of vicarious responsibility is also known as joint liability.
Vicariously responsible in criminal law means that a person may be held accountable for another’s
crime, even though the actus reus was done by another person. Individuals believe that a person who
only follows the instructions of another is not innocent and is thus held responsible for the offense as
well as the person who gave the instructions. In certain cases, the law looks at the defendant’s
connection to the person who really performed the physical act, and it assigns blame for the latter’s
actions to the former as a result. Before going any further, it’s important to note that this kind of
criminal culpability is very rare. As a civil law theory, vicarious liability in IPC holds an employer
responsible for the actions of his or her subordinates.

It’s possible for someone who participated in an incident to be held legally responsible for the actions
of another. The getaway driver, for example, is responsible for an armed robbery, even if the driver
never got out of the vehicle and the heist was carried out by someone else. When someone is held
accountable for a crime that is committed by someone else, they are referred to as the “principal
offender,” even if the crime was perpetrated by someone else. It is considered that a person who only
performs the actus reus on another’s behalf is not innocent and is therefore held liable for the offense
as well. Because of this tie between the defendant and the alleged physical perpetrator, certain laws
place blame on the defendant for the conduct of the alleged perpetrator because of his connection to
the defendant. Prior to going any further, it is important to point out that this kind of criminal culpability
is the exception rather than the norm. When an employer is held responsible for the actions of his or
her workers, the term “vicarious liability” comes into play.

On the basis of respondent superior, the IPC provides a few exceptions to the general rule. There are
many IPC provisions that apply in this situation, and the master is held accountable under them.

https://lawcorner.in/vicarious-liability-in-ipc/

John see, Darley, Al, Taking law, into, Twenty First Centuary
The Model Penal code (1962) holds that a person deserves punishment when the person has formed
a settled intent to commit a crime, a subjectivist std that focuses on the person’s criminal intent,
Hypothesis:
Null Hypothesis:
Alternative Hypothesis:

What you know about unlawful assembly. If offence is committed by member of unlawful assembly, all
would be held liable

When o ne accused does murder with the help of other, is later would be liable for the murder with
same punishment with which murderer would liable?

If unlawful assembly is made for theft but member of unlawful assembly has killed a person or done
any other offence, is all would be held liable for murder.

If its all depend upon case to case or on Judiciary to decide punishment, what you think Judiciary can
fairly decide. – Confidence in Judiciary

Result:
Confidence in Judiciary
Discussion:

Conclusion:

References:
Bachan Singh
Macchi singh
“The conviction of Allauddin Mian and Keyamuddin Mian having been upheld the question is whether
the reference should be accepted and the sentence of death against them be upheld. In my view
Allauddin Mian and Keyamuddin Mian have shown extreme mental depravity in causing serious fatal
injuries to helpless girls of the age of 7/8 years and 7 months. In my view, therefore, this murder can
be characterised as rarest of the rare cases. The extreme mental depravity exhibited by Allauddin
Mian and Keyamuddin Mian impels me to uphold the sentence imposed on Allauddin Mian and
Keyamuddin Mian by the learned Additional Sessions Judge.”

Conviction of members of unlawful assembly on basis of common object – Act done must be
shown to have been committed to accomplish common object.
Decision of Patna High Court Reversed.
Death sentence – Should be reserved for rarest of rare type of cases – Murder of infant
daughters at escape of target i.e. father – Motive for crime obscure – Killings not for gain –
Mere fact of killing of infants does not bring case within category of rarest of rare’ cases.
Decision of Patna High Court, Reversed.

Crime : A legal Category that entails violence against persons or property

Violence includes – Political violence and non political direct violence

Non political direct violence includes physical harm done to people without
a political aim

https://www.semanticscholar.org/paper/Peace-Without-Tranquility.-A-
comparative-analysis-Meyer/96daa62eed38ca06e771d789f00045b7593efb42

When an unlawful assembly exercises the right of private defence and at that time when the opposite
party attacks them, the the right to private defence cannot be considered as the common intention.
(Pawlowski 2004)