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CASE NO.: Appeal (crl.)  728 of 1997

PETITIONER: Chanakya Dhibar  (Dead)                                  

RESPONDENT: State of West Bengal and Ors.                            

DATE OF JUDGMENT: 19/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

       The informant has filed this appeal questioning judgment of  acquittal rendered by a learned Single Judge of the Calcutta High Court  acquitting five respondents (hereinafter referred to as the ’accused’ by  their respective names). Since he has died during the pendency of the  appeal, an application for substitution by his legal representatives has  been filed which is allowed.  

       The trial Court found the respondents guilty of offences  punishable under Sections 148 and 304 Part I read with Section 149 of  the Indian Penal Code, 1860 (in short the ’IPC’). Law was set in motion  by PW-1(Chanakya) on the accusation that Jaba Dhibar (hereinafter  referred to as the ’deceased’) was assaulted severely by five  respondents on the date of occurrence i.e. on 16.9.1985 at about 9.45  p.m. Naran Dhibar (PW-3) who was accompanying him saw the assault by  accused Mana Bhattacharjee and fearing assaults on him ran away and   informed the family members of the deceased. On hearing about the  assaults, the informant, his elder brother Naran and Sandhya, wife of  the deceased (PW-2) went to the spot. When they arrived there finding  the deceased with bleeding injuries, took him to the Bankura hospital on  police jeep. Apart from PW-3, a rickshaw puller Pradip Das (PW-5) was  examined to show that he has seen the deceased being surrounded by  accused persons and assaulted him.  The first information report was  lodged at about 10.25 p.m. in which the names of the five respondents  were indicated. Sub-Inspector (PW-9) attached to the Bankura Police  Station took up investigation. The doctor (PW-4) who examined the  deceased found a sharp cut injury on top of the deceased’s skull. He was  attended to by other doctor (PW-15). He continued to be under treatment  till 13.10.1985 when he was shifted to S.S.K.M. hospital, Calcutta and  ultimately he breathed his last on 8.11.1985. Post mortem was conducted  by PW-18 who opined that the death was due to septicemia. The injury  was, according to him, sufficient in the ordinary course of nature to  cause death and that it was homicidal. After completion of  investigation, charge sheet was placed for commission of offence  punishable under Sections 147, 148, 304 read with Section 149 IPC.  Charges were framed under Sections 148 and 304 Part I read with Section  149 IPC. Accused persons pleaded innocence. According to the defence  plea as evident from the cross examination of prosecution witnesses and  statement of the accused persons recorded under Section 313 of the Code  of Criminal Procedure, 1973 (in short the ’Code’) the accused persons  were falsely implicated out of grudge. People of Pathakpara locality  made attempts to evict the prostitutes from the locality in between  Pathakpara and Keotpara, which was strongly opposed by Chanakya (PW-1).  

After considering the evidence on record, the trial Court held  that accused persons were guilty of offence punishable under Sections

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148 and 304 Part I read with Section 149 IPC. Each of the accused was  sentenced to undergo rigorous imprisonment for seven years and to pay a  fine of Rs.1,000/- with default stipulation so far as offence punishable  under Section 304 Part I read with Section 149 IPC and two years for the  offence punishable under Section 148 IPC.  

       The convicted accused persons filed appeal before the Calcutta  High Court. The High Court by the impugned judgment held that the two  witnesses on whose evidence prosecution heavily relied on were not  truthful witnesses. It was not explained as to how the accused persons  would know the movements of the deceased, when both PWs 1 and 3 accepted  their presence nearby the place of occurrence was not known to anybody.  PW-5 could not have also seen the occurrence which was far away from the  road. PW-3 could not also have seen the occurrence as he accepted to  have run away after the accused persons stabbed the deceased. The  inmates of the nearby houses were not examined as prosecution witnesses.  There must have been temple goers passing along the road. As PW-5 was  earlier prosecuted by the police, his antecedents were not very clean  and he appeared to be a tutored witness. There is no motive attributed  as to why the accused persons  would attack the deceased. On the other  hand, the needle of suspicion could be raised against Naran Dhibar (PW- 3) who was the companion of the deceased and was his partner in the fish  business. Though the death was due to the injury sustained, yet it has  not been proved that the vital injury was caused by the accused persons.  Accordingly, the conviction made and sentences imposed were set aside.

       In support of the appeal, Mr. Ranjit Kumar, learned senior counsel  submitted that the High Court’s judgment is based more on surmises and  conjectures, than analysing the evidence on record. Even the evidence  has not been properly appreciated. Since the judgment of the High Court  is bereft of acceptable reasoning, the same is liable to be set aside  and the judgment of the trial Court should be restored.  

       In response, Mr. U.R. Lalit, learned senior counsel for the  accused submitted that the view taken by the High Court is a possible  view. It is not that the High Court has not analysed the evidence. It  has arrived at the right conclusions. The evidence of PWs 3 and 5  clearly show that they could not have seen the occurrence as claimed.  PW-3 has accepted that he had run away after the accused had stopped the  deceased. The first information report does not detail as to the  respective roles played by the accused persons. In any event, the  evidence is not sufficient to bring in application of Section 149 IPC.  There is no sound reasoning indicated to hold that there was any  unlawful assembly which is a sine qua non for the application of Section  149. The identification as claimed by PWs 3 and 5 is improbabilised by  the evidence of the Investigating Officer. He clearly stated that he had  not mentioned anything about the street light or the torch light claimed  to have been carried by PW-3 in the case diary. PW-5’s presence at the  spot of occurrence has also not been explained and he at the most is a  chance witness and, therefore, his evidence could not have been acted  upon.  

       In essence, it was submitted that in an appeal against acquittal  the jurisdiction under Article 136 of the Constitution of India, 1950  (in short the ’Constitution’) should not be exercised. Learned counsel  for the State of West Bengal supported the stand taken by the informant- appellant.  

A bare perusal of the High Court’s judgment shows that the same is  based more on surmises and conjectures than making an attempt to analyse  the evidence. Some of the conclusions as rightly submitted by learned  counsel for the appellant are contrary to record. The evidence of PW-5  has been disbelieved on the ground that he could not have possibly seen  the occurrence being far away from the road where he claimed to be  sitting. The evidence on record shows that the distance is even less

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than 10 yards. Another factor which seems to have weighed with the High  Court is the statement of PW-3 that he had taken to his heels after the  accused persons stopped the deceased. The High Court has clearly over- looked the categorical evidence of PW-3, who  during cross examination  has stated that after seeing the assault he had run away. The statement  to the effect that he ran away after the accused persons stopped the  deceased is to be read along with other parts of the evidence and not in  an isolated way. The statement made in the cross examination to the  effect that he ran away after seeing the assaults is significant. The  High Court has also raised suspicion over PW-3’s conduct in not lodging  the information first and going to the house of the deceased and not his  own house which was nearer. This according to us is really of no  consequence. The deceased was closely related to him and, therefore, as  explained in evidence he thought it proper to inform the relatives of  deceased first so that medical treatment could be immediately provided.  There was also no delay in lodging the FIR. The occurrence took place at  about 9.45 p.m. and the information with the police was lodged at about  10.15 p.m. There was no evidence to show that the temple goers were  passing on the roads. The hypothetical conclusion of the High Court that  people must be passing is without any foundation. The evidence of PW-5  has been discarded because of his antecedents. When the evidence has  been analysed carefully by the trial Court to find that he is a truthful  witness, his antecedents should not have weighed with the High Court to  completely discard his evidence. There is also no material to support  the conclusion of the High Court that he was a tutored witness. The most  vulnerable conclusion of the High Court relates to its view regarding  PW-3 because he claimed to have accompanied the deceased. Such a  conclusion to say the least borders on absurdity and is without any  foundation for such a conclusion. The High Court should not have   recorded such a finding. The High Court also doubted PW-3’s evidence on  the ground that he did not accompany the deceased to the hospital. The  witnesses PW-2 and PW-3 have categorically stated that PW-2 had seen the  deceased in an injured condition and therefore PW-3 accompanied her to  the deceased’s house when the deceased was shifted to the hospital.  

       In view of the aforesaid position, clearly the High Court was  wrong in holding the accused persons to be not guilty.  

However, one plea which was urged with some amount of vehemence  was the applicability of Section 149 IPC.  

The emphasis in Section 149 IPC 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

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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  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 culled 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

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within the second part but not within the first part.  The distinction  between the two parts of Section 149 cannot be ignored or obliterated.   In every case it 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, but 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 and Ors. v. State of U.P. (AIR  1965 SC 202) 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  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".                          Coming to the plea of the accused that PW-5 was ’chance witness’

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who has not explained how he happened to be at the alleged place of  occurrence it has to be noted that the said witness was an independent  witness. There was not even a suggestion to the witness that he had any  animosity towards any of the accused. In a murder trial by describing  the independent witnesses as ’chance witnesses’ it cannot be implied  thereby that their evidence is suspicious and their presence at the  scene doubtful. Murders are not committed with previous notice to  witnesses; soliciting their presence. If murder is committed in a  dwelling house, the inmates of the house are natural witnesses. If  murder is committed in a street, only passersby will be witnesses. Their  evidence cannot be brushed aside or viewed with suspicion on the ground  that they are mere ’chance witnesses’. The expression ’chance witness’  is borrowed from countries where every man’s home is considered his  castle and everyone must have an explanation for his presence elsewhere  or in another man’s castle. It is quite unsuitable an expression in a  country where people are less formal and more casual.   

There is no embargo on the appellate Court reviewing the evidence  upon which an order of acquittal is based.  Generally, the order of  acquittal shall not be interfered with because the presumption of  innocence of the accused is further strengthened by acquittal. The  golden thread which runs through the web of administration of justice in  criminal cases is that if two views are possible on the evidence adduced  in the case, one pointing to the guilt of the accused and the other to  his innocence, the view which is favourable to the accused should be  adopted. The paramount consideration of the Court is to ensure that  miscarriage of justice is prevented. A miscarriage of justice which may  arise from acquittal of the guilty is no less than from the conviction  of an innocent. In a case where admissible evidence is ignored, a duty  is cast upon the appellate Court to re-appreciate the evidence where the  accused has been acquitted, for the purpose of ascertaining as to  whether any of the accused really committed any offence or not. [See  Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme  567). The principle to be followed by appellate Court considering the  appeal against the judgment of acquittal is to interfere only when there  are compelling and substantial reasons for doing so.  If the impugned  judgment is clearly unreasonable and relevant and convincing materials  have been unjustifiably eliminated in the process, it is a compelling  reason for interference. These aspects were highlighted by this Court in  Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973  SC  2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167),  Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore  Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab  v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla  Singh and Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and  Anr. (JT 2003 (9) SC 17).  

       All the accused persons were armed. Their conduct before, during  and after the occurrence clearly brings about the object. The assembly  was patently unlawful. It is  inconceivable that persons armed would  surround the persons without any criminal object in mind. Mere fact that  only one of them used the weapon does not really rule out application of  Section 149 IPC. Learned counsel for the accused persons submitted that  contrary to the evidence of PWs 3 and 5 there was only one injury found  by the doctor. PWs 3 and 5 have stated about assaults and if five  persons were really assaulting the result would not have been only one  injury. The definition of "assault" as given in Section 351 IPC makes  the plea unacceptable. The trial Court had rightly and in proper legal  perspective convicted the accused-respondents under Section 148 and 304  Part I read with Section 149 IPC. The High Court’s judgment suffers from  serious infirmities making it indefensible and is therefore, set aside.  The judgment of the trial Court recording conviction and imposing  sentences is restored. The appeal is allowed.

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