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CASE NO.: Appeal (crl.)  530-531 of 2003

PETITIONER: Bhargavan & Ors.                                                 

RESPONDENT: State of Kerala                                          

DATE OF JUDGMENT: 17/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Appellants question their conviction for offences punishable under  Sections 143, 148 and 302 read with Section 149 of the Indian Penal  Code, 1860 (in short the ’IPC’).  Appellant Bhargaven was sentenced to  undergo imprisonment for life for offence punishable under Section 302  read with Section 149 IPC and to pay a fine of Rs.60,000/- with default  stipulation. The other four appellants were awarded similar custodial  sentence but the fine in their cases was Rs.35,000/- each. No separate  sentence was awarded for offences relatable to Sections 143 and 148 IPC.   The Kerala High Court by the impugned common judgment dismissed the  appeals filed by the appellants confirming the conviction and sentences  imposed.   

       Prosecution version as unfolded during trial is as follows:

    Chandran (hereinafter referred to as the deceased), a Gulf returned  agriculturist while on his way to Panthalam market around midnight  between 25.5.95 and 26.5.95 at a Panchayat road at Arunoottimangalam was  brutally assaulted.  Soon he was lifted to the Government Hospital,  Mavelikara. After first aid, he was referred to the Medical College  Hospital suspecting head injury.  The injured was shifted to the Medical  College hospital, Kottayam.  While undergoing treatment he succumbed to  the injuries at around 12.50 p.m. on 27.5.95. After return from his  engagement abroad deceased was engaged in betel cultivation and trade.  Valsala (PW-15) is his widow, and Manoharan (PW-4) was his brother.  Santosh (PW-18) was his nephew. On 25.5.1995 he was on his way to  Panthalam market, which starts functioning from early hours in the  morning. When deceased and Santosh (PW-18) reached near the house of  P.K. Ramachandran (PW-14), all the named accused (A-1 to A-6) and two  others waylaid them. Bhargavan (A-1) dealt a blow on the head of the  deceased with an iron rod stating that he should not live any more.  Deceased slumped on receiving the blow. Then Dhanarajan alias Dhanan hit  the deceased with motor cycle chain on his neck and back. Deceased cried  out in pain, hearing which A-1 said that he was not dead and should be  finished. Responding to this, accused Sudhakaran (dead), Chandran,  Sadasivan and Radhakrishnan (A-2, A-3, A-5 and A-6 respectively)  assaulted the deceased on the head and back with sticks. Santosh (PW-18)  cried for help and ran towards home. Hearing the cry Manoharan (PW-4)  and other neighbours rushed to the spot. On the way Santosh (PW-18) met  Manoharan (PW-4). Meanwhile Anandan (PW-2) and Nalini (PW-3) rushed  there. Anandan (PW-2) and Manoharan (PW-4) supinated the deceased who  asked for water and named the accused persons to have assaulted him. PWs  3 and 4 gave water to the deceased. PW-18 Valsala (PW-15) and others in

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the meantime reached the place. PW-4, PW-18 and others shifted the  deceased to the Government Hospital, Mavelikara. Dr. V.C. Alexander (PW- 5) attended the injured and opined that he should be shifted to Medical  College Hospital, Kottayam as there was suspected head injury. He also  sent an intimation to the Mavelikara Police Station. Since PW-4 and PW- 18 did not carry much money, they returned home, collected some money  and clothes and along with PW-15 searched for a car. They went to the  house of one Shajahan, Advocate requesting for a car. Later, they got a  car and the injured was shifted to Medical College Hospital, Kottayam.  Though he was admitted and treated at the Hospital in the intensive care  unit, he did not survive. The Assistant Sub-Inspector of Police had  received the intimation sent by PW-5. At about 3 p.m. on 26.5.1995, he  recorded the First Information Report on the basis of narration by PW- 18. The occurrence was witnessed by Santosh (PW-18) who was accompanying  the deceased at the time the accused persons assaulted him.  Subsequently, information was lodged at the police station and  investigation was undertaken, on completion of which charge sheet was  filed. According to prosecution the accused persons in furtherance of  their common intention to commit murder formed into an unlawful assembly  and being members of unlawful assembly they were armed with deadly  weapons like iron rod, motor cycle chain and sticks and with intend to  commit murder of the deceased Chandran, he was brutally assaulted at his  head and body and due to the head injuries sustained Chandran breathed  his last.    

       Six persons faced trial.  One of them i.e. accused no.2-Sudhakran  died during the pendency of the appeal on 3.6.99. Twenty eight witnesses  were examined to further the prosecution version.  Santosh (PW-18) was  stated to be an eye-witness wheres Anandan, Nalini, Manoharan (PWs 2, 3  and 4 respectively) were stated to be persons before whom the deceased  made dying declaration implicating the accused-appellants.  Accused  persons pleaded innocence and false implication because of previous  litigation. A-1 Bhargavan additionally took the plea of alibi to the  effect that he was hospitalized at Medical College Hospital, Kottayam at  the time of occurrence and the possibility of his assaulting the  deceased is improbable.  Learned Additional Sessions Judge, Alappuza,  found the prosecution version cogent, credible and trustworthy and  convicted and sentenced the accused persons-appellants as aforesaid.

       In support of the appeals, learned counsel for the appellants  submitted that the trial Court and the High Court have erroneously held  the accused persons guilty as the prosecution version is clearly  unacceptable.  Evidence of PW-18 is not only unreliable because of his  relationship with the deceased, but also on the ground that he had  litigation with the accused persons’ family. The so-called dying  declaration before PWs. 2, 3 and 4 is a myth. The doctor clearly stated  that he was unconscious when brought to the hospital and, therefore, the  question of his making a coherent declaration before PWs. 2, 3 and 4 as  claimed is impracticable. Additionally, in the so-called dying  declaration, accused no.1 was not specifically named. The conduct of PW- 18 is not natural. Though claimed that PW-18 had accompanied the  deceased, said fact has not been established. His reaction does not  appear to be normal.  It is highly improbable that one person was  assaulted by several persons, and he did not react and remained passive  onlooker. It is equally improbable that after having allegedly made  murderous assaults on a person, no attempt was made to even cause a  scratch on a person who claims to have witnessed the entire occurrence.  The Trial Court noticed that accused persons knew the deceased and PW18  were going to the market on particular day.  It is, therefore,  improbable that they would leave unscathed a relative of the deceased  who claims to have witnessed the occurrence.  Additionally, PW-18 did  not mention the names of the assailants to the doctor who first treated  the deceased.  Though it may not be the duty of the doctor to enquire  the names, it is a question of attaching credibility to the evidence of  PW-18.  The conduct shown by the PW-18 and others in delaying to take

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the deceased to the hospital and first going to the house of their  advocate on the unacceptable plea that they wanted to use his vehicle  shows that the first information report was lodged after deliberation  and falsely implicating the accused persons.  The first information  report was lodged on the next day of occurrence. PWs. 2 and 3 claimed  that they had seen the deceased in an injured condition.  Their evidence  goes to show that Santosh (PW-18) was not present when they reached the  spot of occurrence.  PW-18 claimed to have seen the assailants in the  light of the shed of PW-14.  But the said witness stated that light was  not on when he reached the site. Reliance has been erroneously placed on  the basis of statement of PW-14 (P.K. Ramachandran) recorded under  Section 161 of the Code of Criminal Procedure, 1973 (for short the  ’Cr.P.C.’). Even after the movements starting from the assault till the  deceased was taken to the hospital is accepted in the manner described,  even then there is unexplained delay in lodging the first information  report.  No credible motive has been established and the least for A-1  there is no apparent motive.  The plea of alibi has been erroneously  rejected on hypothetical basis.  When the doctor himself has admitted  that appellant-accused no.1 was admitted to the hospital, on the surmise  that he was not there having been permitted to stay outside. It is  nothing but a hypothetical conclusion. Further it was submitted that  Section 149 has no application as the ingredients necessary to bring  application of the said provision have not been established.  The  discrepancies in the evidence of witnesses are not minor and  irretrievably affect credibility of their evidence.   

       In response, learned counsel for the State submitted that the plea  about A-1 having nothing to do with any litigation of deceased and  accused except being the latter’s advocate is clearly not correct  factual position because the Trial Court itself noticed about cases  instituted by A-1 against the accused.  The evidence of PW-14 has  rightly been discarded on the question of availability of light.   Evidence of PW-13 (R. Ramachandran) and PW18 clearly shows that light  was on.  It is not that the deceased was unconscious althrough as  claimed by the accused-appellant. On the contrary evidence of PW-3 shows  that he became unconscious after dying declaration as would be evident  from the fact that he asked for and was given a glass of water which he  took.  Section 149 has been rightly applied as all the accused persons  carried weapons and their presence and acts done have been established.   The time of occurrence was after mid-night and the distance to the  hospital was such as it took nearly 3 hours to reach it. PW-18 has also  stated as to why he could not come to the rescue of the deceased. The  plea of alibi has been rightly rejected in view of the evidence of  doctor and the nurses i.e. PWs. 19 to 22. In essence it was submitted  that the concurrent findings recorded by the Trial Court and the High  Court about the guilt of the accused did not warrant any interference.  

The plea relating to interested witness is a regular feature in  almost every criminal trial.  

We shall first deal with the contention regarding interestedness  of the witnesses for furthering prosecution version.  Relationship is  not a factor to affect credibility of a witness.  It is more often than  not that a relation would not conceal actual culprit and make  allegations against an innocent person.  Foundation has to be laid if  plea of false implication is made.  In such cases, the court has to  adopt a careful approach and analyse evidence to find out whether it is  cogent ad credible.

       In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953 SC 364)  it has been laid down as under:-

"A witness is normally to be considered independent  unless he or she springs from sources which are  likely to be tainted and that usually means unless

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the witness has cause, such as enmity against the  accused, to wish to implicate him falsely.   Ordinarily a close relation would be the last to  screen the real culprit and falsely implicate an  innocent person.  It is true, when feelings run high  and there is personal cause for enmity, that there is  a tendency to drag in an innocent person against whom  a witness has a grudge along with the guilty, but  foundation must be laid for such a criticism and the  mere fact of relationship far from being a foundation  is often a sure guarantee of truth.  However, we are  not attempting any sweeping generalization.  Each  case must be judged on its own facts.  Our  observations are only made to combat what is so often  put forward in cases before us as a general rule of  prudence.  There is no such general rule. Each case  must be limited to and be governed by its own facts."

       The above decision has since been followed in Guli Chand and Ors.  v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v.  State of Madras (AIR 1957 SC 614) was also relied upon.

       We may also observe that the ground that the witness being a close  relative and consequently being a partisan witness, should not be relied  upon, has no substance.  This theory was repelled by this Court as early  as in Dalip Singh’s case (supra) in which surprise was expressed over  the impression which prevailed in the minds of the Members of the Bar  that relatives were not independent witnesses. Speaking through Vivian  Bose, J. it was observed:  

"We are unable to agree with the learned Judges of  the High Court that the testimony of the two  eyewitnesses requires corroboration.  If the  foundation for such an observation is based on the  fact that the witnesses are women and that the fate  of seven men hangs on their testimony, we know of no  such rule.  If it is grounded on the reason that they  are closely related to the deceased we are unable to  concur.  This is a fallacy common to many criminal  cases and one which another Bench of this Court  endeavoured to dispel in \026 ’Rameshwar v. State of  Rajasthan’ (AIR 1952 SC 54 at p.59).  We find,  however, that it unfortunately still persists, if not  in the judgments of the Courts, at any rate in the  arguments of counsel."

       Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC 202)  this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to contend  that evidence given by witnesses should be discarded  only on the ground that it is evidence of partisan or  interested witnesses.......The mechanical rejection  of such evidence on the sole ground that it is  partisan would invariably lead to failure of justice.   No hard and fast rule can be laid down as to how much  evidence should be appreciated.  Judicial approach  has to be cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

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       To the same effect is the decision in State of Punjab v. Jagir  Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76)  and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). As  observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR  1981 SC 1390), normal discrepancies in evidence are those which are due  to normal errors of observation, normal errors of memory due to lapse of  time, due to mental disposition such as shock and horror at the time of  occurrence and those are always there however honest and truthful a  witness may be. Material discrepancies are those which are not normal,  and not expected of a normal person. Courts have to label the category  to which a discrepancy may be categorized. While normal discrepancies do  not corrode the credibility of a party’s case, material discrepancies do  so. These aspects were highlighted recently in Krishna Mochi and Ors. v.  State of Bihar etc. (JT 2002 (4) SC 186).   

Another plea which was emphasized relates to the question whether  Section 149, IPC has any application for fastening the constructive  liability which is the sine qua non for its operation.  The emphasis is  on the common object and not on common intention.  Mere presence in an  unlawful assembly cannot render a person liable unless there was a  common object and he was actuated by that common object and that object  is one of those set out in Section 141.  Where common object of an  unlawful assembly is not proved, the accused persons cannot be convicted  with the help of Section 149.  The crucial question to determine is  whether the assembly consisted of five or more persons and whether the  said persons entertained one or more of the common objects, as specified  in Section 141.  It cannot be laid down as a general proposition of law  that unless an overt act is proved against a person, who is alleged to  be a member of unlawful assembly, it cannot be said that he is a member  of an assembly.  The only thing required is that he should have  understood that the assembly was unlawful and was likely to commit any  of the acts which fall within the purview of Section 141.  The word  ’object’ means the purpose or design and, in order to make it ’common’,  it must be shared by all.  In other words, the object should be common  to the persons, who compose the assembly, that is to say, they should  all be aware of it and concur in it.  A common object may be formed by  express agreement after mutual consultation, but that is by no means  necessary.  It may be formed at any stage by all or a few members of the  assembly and the other members may just join and adopt it. Once formed,  it need not continue to be the same.  It may be modified or altered or  abandoned at any stage.  The expression ’in prosecution of common  object’ as appearing in Section 149 have to be strictly construed as  equivalent to ’in order to attain the common object’.  It must be  immediately connected with the common object by virtue of the nature of  the object.  There must be community of object and the object may exist  only up to a particular stage, and not thereafter.  Members of an  unlawful assembly may have community of object up to certain point  beyond which they may differ in their objects and the knowledge,  possessed by each member of what is likely to be committed in  prosecution of their common object may vary not only according to the  information at his command, but also according to the extent to which he  shares the community of object, and as a consequence of this the effect  of Section 149, IPC may be different on different members of the same  assembly.

       ’Common object’ is different from a ’common intention’ as it does  not require a prior concert and a common meeting of minds before the  attack.  It is enough if each has the same object in view and their  number is five or more and that they act as an assembly to achieve that  object.  The ’common object’ of an assembly is to be ascertained from  the acts and language of the members composing it, and from a  consideration of all the surrounding circumstances.  It may be gathered  from the course of conduct adopted by the members of the assembly.  What

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the common object of the unlawful assembly is at a particular stage of  the incident is essentially a question of fact to be determined, keeping  in view the nature of the assembly, the arms carried by the members, and  the behaviour of the members at or near the scene of the incident.  It  is not necessary under law that in all cases of unlawful assembly, with  an unlawful common object, the same must be translated into action or be  successful. Under the Explanation to Section 141, an assembly which was  not unlawful when it was assembled, may subsequently become unlawful.   It is not necessary that the intention or the purpose, which is  necessary to render an assembly an unlawful one comes into existence at  the outset.  The time of forming an unlawful intent is not material. An  assembly which, at its commencement or even for some time thereafter, is  lawful, may subsequently become unlawful. In other words it can develop  during the course of incident at the spot co instanti.

Section 149, IPC consists of two parts.  The first part of the  section means that the offence to be committed in prosecution of the  common object must be one which is committed with a view to accomplish  the common object.  In order that the offence may fall within the first  part, the offence must be connected immediately with the common object  of the unlawful assembly of which the accused was member.  Even if the  offence committed is not in direct prosecution of the common object of  the assembly, it may yet fall under Section 141, if it can be held that  the offence was such as the members knew was likely to be committed and  this is what is required in the second part of the section.  The purpose  for which the members of the assembly set out or desired to achieve is  the object.  If the object desired by all the members is the same, the  knowledge that is the object which is being pursued is shared by all the  members and they are in general agreement as to how it is to be achieved  and that is now the common object of the assembly.  An object is  entertained in the human mind, and it being merely a mental attitude, no  direct evidence can be available and, like intention, has generally to  be gathered from the act which the person commits and the result  therefrom.  Though no hard and fast rule can be laid down under the  circumstances from which the common object can be called out, it may  reasonably be collected from the nature of the assembly, arms it carries  and behaviour at or before or after the scene of incident.  The word  ’knew’ used in the second branch of the section implies something more  than a possibility and it cannot be made to bear the sense of ’might  have been known’. Positive knowledge is necessary. When an offence is  committed in prosecution of the common object, it would generally be an  offence which the members of the unlawful assembly knew was likely to be  committed in prosecution of the common object.  That, however, does not  make the converse proposition true; there may be cases which would come  within the second part but not within the first part.  The distinction  betweens the two parts of Section 149 cannot be ignored or obliterated.   In every case is would be an issue to be determined, whether the offence  committed falls within the first part or it was an offence such as the  members of the assembly knew to be likely to be committed in prosecution  of the common object and falls within the second part. However, there  may be cases which would be within first offences committed in  prosecution of the common object would be generally, if not always, with  the second, namely, offences which the parties knew to be likely  committed in the prosecution of the common object.  (See Chikkarange  Gowda and others v. State of Mysore,  AIR 1956 SC 731.)

       The other plea that definite roles have not been ascribed to the  accused and, therefore, Section 149 is not applicable, is untenable. A  4-Judge Bench of this Court in Masalti’s case (supra) observed as  follows:                  "Then it is urged that the evidence given by  the witnesses conforms to the same uniform pattern  and since no specific part is assigned to all the  assailants, that evidence should not have been

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accepted.  This criticism again is not well founded.  Where a crowd of assailants who are members of an  unlawful assembly proceeds to commit an offence of  murder in pursuance of the common object of the  unlawful assembly, it is often not possible for  witnesses to describe accurately the part played by  each one of the assailants.  Besides, if a large  crowd of persons armed with weapons assaults the  intended victims, it may not be necessary that all of  them have to take part in the actual assault.  In the  present case, for instance, several weapons were  carried by different members of the unlawful  assembly, but it appears that the guns were used and  that was enough to kill 5 persons. In such a case, it  would be unreasonable to contend that because the  other weapons carried by the members of the unlawful  assembly were not used, the story in regard to the  said weapons itself should be rejected.  Appreciation  of evidence in such a complex case is no doubt a  difficult task; but criminal courts have to do their  best in dealing with such cases and it is their duty  to sift the evidence carefully and decide which part  of it is true and which is not."

       To similar effect is the observation in Lalji v. State of U.P.  (1989 (1) SCC 437). It was observed that:

       "Common object of the unlawful assembly  can be gathered from the nature of the assembly,  arms used by them and the behaviour of the  assembly at or before the scene of occurrence.  It is an inference to be deduced from the facts  and circumstances of each case."                   In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was  observed that it is not necessary for the prosecution to prove which of  the members of the unlawful assembly did which or what act. Reference  was made to Lalji’s case (supra) where it was observed that "while  overt act and active participation may indicate common intention of the  person perpetrating the crime, the mere presence in the unlawful  assembly may fasten vicariously criminal liability under Section 149".

       Above being the position, we find no substance in the plea that  evidence is not sufficient to fasten guilt by application of Section  149.    

       So far as non-disclosure of names to the doctor, same  is really  of no consequence.  As rightly noted by the Courts below, his primary  duty is to treat the patient and not to  find out by whom the injury was  caused. The plea in this regard is clearly unacceptable. The question  was examined by this Court in Pattipati Venkaiah v. State of Andhra  Pradesh (AIR 1985 SC 1715) and similar view was taken.   

The evidence of PWs. 2, 3 and 4 is cogent and credible, clearly  supporting the claim that dying declaration was made before them.  The  names of the accused persons were claimed to have been stated before  PWs. 2, 3 and 4.  Merely because PW-2 says that he did not hear the name  of accused no.1 clearly, that cannot dilute evidentiary value of the  evidence of PWs. 3 and 4 who categorically stated that the name of  accused no.1 was stated.   The plea of alibi was rejected by the Trial Court and the High  Court. The appellant no.1 had not established that he was in the  hospital on the trial.  The evidence of doctor and the nurses (PWs. 19

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to 22) clearly shows that he was not given any medicines after initial  examination and that itself was conclusive of the fact that he was not  in the hospital in the evening when the medicines were given to the  patients.  It has been specifically stated that he was permitted to stay  outside.  

It has also been explained as to why there was delay in lodging  the first information report.  The Trial Court and the High Court  considered the evidence and came to hold that the paramount attempt was  to save the life of the deceased, and witnesses tried to take him to the  hospital at Kottayam. The evidence of PW-18 was sufficient in itself to  uphold the conviction.  Additionally, there is evidence of the dying  declaration.

       Trial Court and the High Court were justified in convicting the  accused and awarding sentences  consequentially, and there is no  infirmity in the reasons indicated by the Trial Court, the conclusions  arrived at by it as affirmed by the High Court, to warrant interference.  The appeals fail and are dismissed.