Whether the court can convict accused who was a member of unlawful assembly for Murder read with the third clause of 141 of IPC?

141. Unlawful assembly An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-

First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation -- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

38. Section 141 'third', clearly mentions that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly as among other offences namely, mischief or criminal trespass or commission of other offence. A literal interpretation, therefore, only means that apart from the offence of mischief and criminal trespass, all other offences would fall within the said clause 'third' mentioned in Section 141. 

39. The principle 'ejusdem generis' means 'where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed'. The learned senior counsel for the Appellants, therefore, contended that since the expression "other offence" under Section 141 'third' has been used along with the offence, mischief or criminal trespass, it can only relate to similar such offences of the same species and not commission of all other offences as in the case on hand, namely, murder or attempt to commit murder.

42. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in Section 141 'third', it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression "other offence" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of learned senior counsel for the Appellants to import the principle of 'ejusdem generis' to Section 141 'third', cannot be accepted.

43. The submission of the learned senior counsel cannot also be countenanced by applying Section 40 of the Code, which specifically mentions as to how the term 'offence' will have to be construed. In the main clause of the said section it has been clearly set out that the word "offence" denotes a thing made punishable by this Code except the Chapters and Sections mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word "offence" since denotes the thing made punishable under the Code, 'other offence' mentioned in Section 141 'third', can only denote to offences, which are punishable under any of the provisions of the Code. Therefore, by applying the main clause of Section 40, it can be straight away held that all offences referred to in any of the provisions of the Code for which the punishment is provided for would automatically fall within the expression "other offence", which has been used in Section 141 'third'.

46. Therefore, a conspectus reading of Section 40 makes the position abundantly clear that for all offences punishable under the Indian Penal Code, the main clause of Section 40 would straight away apply in which event the expression "other offence" used in Section 141 'third', will have to be construed as any offence for which punishment is prescribed under the Code.  Therefore, having regard to Sub-clause 1 of Section 40 of the Code read along with Section 141 'third', the argument of learned senior counsel for the Appellants will have to be rejected. We are, therefore, of the firm view that only such a construction would be in tune with the purport and intent of the law makers while defining an unlawful assembly for commission of an offence with a common object, as specified under Section 141 of the Code. In the case on hand, since no special law or local law was attracted and the accused were charged only for the offence under the Indian Penal Code, Section 40(1) gets attracted along with Section 141 'third' Indian Penal Code. Having regard to such a construction of ours on Section 141, read along with Section 40 Indian Penal Code, the offence found proved against the Appellants, namely, falling under Sections 302 read with 149, 307 read with 149 along with 147 and 148 of the Code for which the conviction and sentence imposed by the Court below cannot be found fault with.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1156, 1157, 1158, 1159, 1160, 1161, 1162, 1163, 1164, 1165 and 1166 of 2008

Decided On: 03.05.2013

Manga  Vs.   State of Uttarakhand

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: F.M. Ibrahim Kalifulla, J.

Citation: ( 2013 ) 7 SCC 629,2013 CRLJ 3332,MANU/SC/0464/2013

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When court should not review an order on ground of discovery of new evidence?

 To appreciate the very contention raised by him, we have to import the legal requirements specifically spelt out under O. 47, R. 1, sub-rule (c) of the Code of Civil Procedure. If a new discovery of evidence oral or otherwise is demonstrated, when the second appeal is sought to be admitted, I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same; and (ii) be such of a character that, if it had been given in the suit, it might possibly have altered the judgment. It must atleast be such as presumably to be believed and if so, it would be conclusive. The discovery afore-stated is not only a discovery of new and important materials or evidence; that would entitle a party to apply for, review, but the discovery of any new material or evidence and important matter must be one which was not within the knowledge of the party then the decree was made the person seeking a review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of a merely introducing evidence which might possibly have had same effect upon the result.

9. Importing the above legal ratio to the grievances demonstrated before me, I am totally unable to identify any of the materials to show that the petitioner had acted with every due diligence all through the trial, having not been possessed with new materials now sought to be introduced. Even if it is admitted or allowed, it could not pose a conclusion of the trial or finality of the whole litigation between the parties herein. On the other hand, a new type of legal battle will be erupted, perhaps, in the pretext of the permission of the Court, which in my considered view, cannot at all be permitted. No material is available to show that in the long passage of time, the petitioner was not having the custody of the said document or the new fact, nor he was deprived of the said material.

IN THE HIGH COURT OF MADRAS

Review C.M.P. No. 117 of 1994 in S.A. No. 839 of 1994

Decided On: 20.02.1996

Shanmugam Servai  Vs.  P. Periyakaruppan Servai

Hon'ble Judges/Coram:

N. Arumugam, J.

Citation: AIR 1996 Mad 411

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