REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2040 OF 2008

Akbar Sheikh & Ors. …Appellants

Versus

State of West Bengal …Respondent

WITH

CRIMINAL APPEAL NO. 2041 OF 2008

Akhtar Alam Alias Aktarul Sheikh …Appellant

Versus

State of West Bengal …Respondent

CRIMINAL APPEAL NO. 2042 OF 2008

Kabir Sheikh & Ors. …Appellants

Versus

State of West Bengal …Respondent

C  RIMINAL APPEAL NO. 28 OF 2009   

Kazem Sheikh @ Kamruzzaman …Appellant

Versus

State of West Bengal …Respondent

J U D G M E N T  

S.B. SINHA, J :   

1. Sajaedar Rahman (Complainant  – PW-1) was a resident of a small  

village Bujung situated within the Police Station of Nalhati, in the district of  

Birbhum (West Bengal).  He had a two-storeyed house made of mud with a  

tin shed.  It had a verandah on the ground floor as also on the upper floor.  It  

consisted of four rooms; two on the ground floor and two on the upper floor.  

There was another house in the same compound.  It was thatched with straw.  

It was also a two-storeyed one.   

2. The  deceased  Akramul  Sheikh  and  Samsul  Haque  were  his  sons.  

Ashraful (PW-9) and Nasir were his two other sons.  His wife is Latifa Bibi  

(PW-6) and Ahmuda Khatun (PW-7) is his daughter.  Kazem (Accused No.  

8) is his nephew.  Ali Mohammed alias Kalu (PW-5) is his another brother.   

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3. On the fateful day, i.e., 16.05.1982 in the mid night, the complainant  

was sleeping inside his room.  On the verandah thereof his wife, two sons  

Nasir and Saidul were sleeping.  Ashraful and Kalu were sleeping in the first  

floor of another house.  In the ‘Baithakkana’ (living room) Akramul and his  

wife Nadira were sleeping.  Samsul Haque was sleeping in the courtyard.  At  

about 1 a.m. in the night, the complainant was woken up by his son Ashraful  

and his nephew Kalu.  He was informed that a large number of people had  

attacked his house.  They were armed with deadly weapons.  A hurricane  

was hanging in the verandah.  He also came out with a torch.  He found that  

about 100 persons were there.  They started assaulting Samsul with lathi and  

ballam.   Kazem  (Accused  No.  8)  directed  that  he  should  be  beheaded  

whereupon Saifuddin cut his neck with one stroke by a big knife ordinarily  

used by a  butcher  for  slaughtering goats.   Samsul  was also assaulted by  

Buddik (Accused No. 14) with a knife.  Samsul Arefin assaulted him with  

lathi.  Kamruzzaman assaulted him with a ballam whereas Sadek (Accused  

No. 4) assaulted him with tangi.  He identified all of them.  The accused  

chased the inmates of the house who were standing on the verandah.  Out of  

fear, they entered into the room and bolted it from inside.  Two-three bombs  

were hurled at the door.  They exploded.  An attempt was made to break  

open the door with an axe whereupon a gap was created.  Ashraful (PW-9)  

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took out a sword from the room and pushed it through the gap towards the  

accused persons.  Then, Kazem asked Wahed to set fire on the chals of the  

south-facing room.  He also asked Maddin to do the same thing.  Fire was  

set in the house with thatched straw.  They took shelter in the vacant space  

outside the house.   Akramul and his  wife also came out  from the house  

which was set on fire.  Buddik assaulted Akramul on his back with an axe.  

On resistance offered by his wife and an appeal to the assailants not to kill  

him,  Sadek  assaulted  her  on  her  forearm  of  right  hand  with  a  shovel.  

Accused Buddik, Ruli,  Sadek and Kabir forcibly kidnapped Akramul to the  

house  of  the  accused  Arefin  as  directed  by  Kazem.   All  the  accused  

thereafter dispersed.   

The  complainant  received  an  information  that  Akramul  was  killed  

near  the  pond.   He went  to  the  spot  and found him dead with  his  neck  

chopped and a long cut injury on his chest upto abdomen.   

D.N. Ghosh (PW-13), officer incharge of the Police Station received  

an information about the incident on telephone.  They came to the village in  

the early hours of the morning.   

A First Information Report was lodged at about 6 a.m.  In the said  

First  Information Report,  about  thirty  persons  were named.  Chargesheet  

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was  issued  as  against  twenty-nine  persons.   The  trial  took  a  long  time.  

Whereas the complainant was examined in 1992, his son Ashraful (PW-9)  

was examined in 2001.  The learned Sessions Judge convicted 20 persons.  

Nine persons died during the pendency of the trial.  Appeals were preferred  

thereagainst.  By reason of the impugned judgment, the High Court, while  

affirming the judgment of conviction, remanded the case back to the learned  

Trial Judge for determining the age of five appellants who advanced a plea  

that they were ‘children’ on the date of commission of the offence.

5. In  Criminal  Appeal  No.  2040 of  2008,  there  are  seven  appellants.  

Criminal Appeal No. 2041 of 2008 was filed by Akhtar Alam alias Aktarul  

Sheikh.  Criminal Appeal No. 2042 of 2008 was filed by Kabir Sheikh with  

three others.  The Special Leave Petition of three petitioners was dismissed  

leaving Kabir Sheikh as the only appellant.  Criminal Appeal No. 28 of 2009  

has been preferred by Kazem Sheikh alias Kamuruzzaman.

5. Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of  

the appellants in Criminal Appeal Nos. 2040 and 2041 of 2008, would urge:

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(a) Most of the accused persons having not taken active part and some  

of them having not been named at all by the prosecution witnesses,  

the learned Sessions Judge as also the High Court  committed a  

serious error in passing the impugned judgments.

(b) Appellants had falsely been implicated due to long standing enmity  

as:

(i) Even according to prosecution, Nadira, sister of Kazem, was  

married to the son of PW-1.  He committed suicide.  The  

said  marriage  took  place  without  the  consent  of  Kazem  

Sheikh.   Allegedly,  a rein of terror was unleashed.   They  

have to leave the village.  20 days prior thereto, they came  

back and got Nadira married with the deceased Akramul.   

(ii) Asgar and Kuddus had deposted against the family of PW-1  

in the matter of murder of one Dol Gobinda Acharya (ex-

Pradhan).  PW-9 accepted that he had committed his murder  

and was convicted in the criminal case and sentenced to life  

imprisonment.  In that case Kuddus had deposed and, thus,  

all  his  brothers  Sadek,  Ruli,  Kudrat  and  Kabir  had  been  

roped in.  Similarly, as Asgar had deposed in the said case,  

his three nephews, viz., Habal, Hosi and Chosi, who were  

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said to be minors at the time of alleged incident were also  

roped in.   

(iii) It has furthermore come in evidence that father of Monir and  

Maddin, i.e.,  Gastul had filed some criminal cases against  

PW-1.   

(iv) Five  persons  who  were  named  in  the  First  Information  

Report, being children in the age group of 12-15 years had  

not been spared.   

(v) Gado and Kaku being son of Jabrish Sheikh were roped in as  

Jabrish deposed against PW-1 in a criminal case wherein he  

was  convicted  for  commission  of  murder  of  one  Munsef  

Hazi.

(c) The prosecution case must be held to have not been proved as all  

eye-witnesses  are  interested  witnesses.   Even  Kalu  (PW-5),  

nephew of PW-1 was declared hostile.  Moreover, out of four eye-

witnesses  named in  the  First  Information  Report,  only  one  had  

been examined and three were not even examined as witnesses for  

reasons  best  known  to  the  State.   Those  villagers  tendered  as  

witnesses by prosecution being PWs 2, 3 and 4 were also declared  

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hostile.   Even  PW-11,  i.e.,  husband  of  PW-7  did  not  name  

anybody.   Nasir  Sheikh,  son  of  PW-1,  who  is  said  to  have  

identified  the  dead  body  of  his  brother  Samsul  at  the  time  of  

inquest was also not examined.  Nazrul, another son of PW-1, who  

was staying just outside the compound, was also not examined.  

(d) The  First  Information  Report  was  ante-dated  and  ante-timed.  

According  to  PW-1,  the  inquest  took  place  before  the  First  

Information  Report  was  lodged.   The  inquest  report  bears  the  

police case number although by then the First Information Report  

was not lodged.   

(e) The First Information Report having been sent to the Magistrate  

after 24 hours, viz., on 17.05.1982, no reliance should be placed  

thereupon.

(f) In any event, most of the appellants having not taken any active  

part,  the rule of prudence would demand that in absence of any  

corroboration  in  material  particulars  benefit  of  doubt  should  be  

according to the appellants.  

6. Mr. Rauf Rahim, learned counsel appearing on behalf of the appellant  

in  Criminal  Appeal  No.  2042  of  2008  would  urge  that  Kabir  Sheikh  

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(Accused No. 7) being a minor on the date of offence,  also deserves the  

same treatment as accorded to other similarly situated, viz., remission of the  

case to the Trial Court for determination of his age.   

In  support  of  the  said  contention,  reliance  has  been placed  on the  

statement of the said appellant before the Trial Court under Section 313 of  

the Code of Criminal Procedure as also a voters’ list.

7. Mr. Seshadri Sekhar Ray, learned Amicus Curiae appearing on behalf  

of  the  appellant  Kazem  Sheikh  in  Criminal  Appeal  No.  28  of  2009  

supplementing the submissions of Mr. Ghosh urged that the learned Sessions  

Judge as also the High Court failed to take into consideration the defence of  

the said accused viz. he at the relevant time was physically handicapped.  

There was no reason as to why the evidences of defence witnesses including  

the certificate of a doctor to that effect should not be believed.

8. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the  

State, on the other hand, supported the impugned judgment contending that  

the  fact  that  more than thirty  persons  had attacked the deceased and the  

prosecution witnesses with deadly weapons and they had not only murdered  

Samsul Haque but also took away Akramul Sheikh and murdered him near  

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the  pond  clearly  goes  to  show that  each  one  of  them had  the  requisite  

common object.

 It  was  furthermore  contended  that  PW-1  having  identified  all  the  

accused in the court, there is no reason as to why his evidence should not be  

relied upon.  

9. Before  adverting  to  the  rival  contentions  raised  before  us  by  the  

learned counsel for the parties, we may notice the following salient features:

PW-1 Sajedar Rahman is the informant/complainant.  PW-9 Ashraful  

Sheikh is the son of PW-1.  Like PW-1, he was also an eye-witness.   

PW-6  Latifa  Bibi  is  the  wife  of  PW-1  but  as  at  the  time  of  her  

deposition, she having been found to have become senile, neither the learned  

Trial  Judge nor the High Court has placed any reliance on her evidence.  

PW-7 Ahmuda Khatun is the daughter of PW-1.  On the date of incident, she  

had been residing in her matrimonial  home and only upon receipt  of the  

information, she came to her parents’ place and came to know about the  

incident from her father.  Her evidence is, therefore, a hearsay one and not  

considered by the High Court at all.

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Other witnesses, viz., PWs. 2 to 4 and PW-5 were declared hostile.  

We are, therefore, left with the evidences of PW-1 and PW-9 only.

10. Whereas according to PW-1, Akbar Sheikh (Accused No. 5) who had  

been named but had not taken any active part in the incident, PW-9 merely  

saw him as a member of the mob.  Asgar Sheikh (Accused No. 1), Kuddus  

Sheikh (Accused No. 3) and Kudrat Sheikh (Accused No. 6) had not been  

named by PW-1 but they had been named by PW-9.  Whereas Gado Sheikh  

(Accused No. 11) was named by PW-1 as a person who had not taken active  

part, he had not been named by PW-9.  Kanku Sheikh (Accused No. 13) had  

been named both by PW-1 and PW-9, although, according to PW – 1, he  

also  did  not  take any  active  part.   Monir  Sheikh  (Accused No.  15)  was  

named by PW-1 without taking any active part.  PW-9 did not name him at  

all.

11. Akhtar (Accused No. 9) appellant in Criminal Appeal No. 2041 had  

not been named at all either by PW-1 or PW-9.

12. Allegation against Kabir Sheikh (Accused No.7) appellant in Criminal  

Appeal No. 2042 of 2008, is that he was one of the four accused who had  

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kidnapped Akramul and whose dead body was found at a distance of 500  

yards from the house.

13. We have noticed hereinbefore that the role of Kazem Sheikh (Accused  

No. 8), according to PW-1, was positive.  He not only ordered that Samsul  

Haque should be beheaded, pursuant whereto Saifuddin cut his neck with  

one stroke; he furthermore, at the second stage of the occurrence, directed  

Wahed and Maddin to set fire to the thatched house which was complied  

with.  The overt act of kidnapping Akramul has been attributed to Buddik,  

Ruli,  Sadek and Kabir.   Buddik had also been attributed with the act  of  

assault on Akramul on his back with the axe.  Sadek injured Latifa (PW-6)  

on her forearm.   

The  summary  of  the  evidences  of  PW-1  and  PW-9,  therefore,  

demonstrates that whereas Akbar, Gado, Monir had been named by PW-1,  

they  had not  been named by PW-9.   Only  Kanku has  been named as  a  

miscreant person in the assembly by both PW-1 and PW-9.

The  core  question  which  arises  for  consideration  is  as  to  whether  

some of the appellants who had not committed any overt act must be held to  

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be a part of the unlawful assembly or shared the common object with the  

main accused.  

Chapter  VIII  of  the  Indian  Penal  Code  provides  for  the  offences  

against the public tranquility.  Section 141 defines ‘Unlawful Assembly’ to  

be an assembly of five or more persons.  They must have a common object  

inter alia to commit any mischief or criminal trespass or other offence.   

Section 142 of the Indian Penal Code postulates that whoever, being  

aware of facts  which render any assembly an unlawful  one, intentionally  

joins the same would be a member thereof.   

Section  143  of  the  Indian  Penal  Code  provides  for  punishment  of  

being  a  member  of  unlawful  assembly.   Section  149  provides  for  

constructive liability on every person of an unlawful assembly if an offence  

is committed by any member thereof in prosecution of the common object of  

that assembly or such of the members of that assembly knew to be likely to  

be committed in prosecution of that object.

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14. Whether an assembly is unlawful one or not, thus, would depend on  

various factors, the principal amongst them being a common object formed  

by the members thereof to commit an offence specified in one or the other  

clauses contained in Section 141 of the Indian Penal Code.  Constructive  

liability on a person on the ground of being a member of unlawful assembly  

can be fastened for an act of offence created by one or more members of that  

assembly if they had formed a common object.  The distinction between a  

common object and common intention is well-known.

15. In Munna Chanda v. State of Assam [(2006) 3 SCC 752], this Court  

held as under:

“10. The  concept  of  common  object,  it  is  well  known, is  different from common intention.  It  is  true that so far as common object is concerned no  prior concert is required. Common object can be  formed  on  the  spur  of  the  moment.  Course  of  conduct adopted by the members of the assembly,  however, is a relevant factor. At what point of time  the common object of the unlawful assembly was  formed  would  depend  upon  the  facts  and  circumstances of each case. 11. Section 149 IPC creates a specific and distinct  offence.  There  are  two  essential  ingredients  thereof: (i) commission of an offence by any member of an  unlawful assembly, and

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(ii)  such  offence  must  have  been  committed  in  prosecution of the common object of that assembly  or must be such as the members of that assembly  knew to be likely to be committed.

12. It  is,  thus,  essential  to prove that  the person  sought to be charged with an offence with the aid  of  Section  149  was  a  member  of  the  unlawful  assembly at the time the offence was committed.

13. The  appellants  herein  were  not  armed  with  weapons. They except Bhuttu were not parties to  all the three stages of the dispute. At the third stage  of the quarrel, they wanted to teach the deceased  and others  a lesson.  For picking up quarrel  with  Bhuttu,  they  might  have  become  agitated  and  asked for apologies from Moti. Admittedly, it was  so  done  at  the  instance  of  Nirmal,  Moti  was  assaulted  by  Bhuttu  at  the  instance  of  Ratan.  However, it cannot be said that they had common  object of intentional killing of the deceased. Moti,  however, while being assaulted could free himself  from the grip of the appellants and fled from the  scene. The deceased was being chased not only by  the appellants herein but by many others. He was  found dead the next morning. There is, however,  nothing  to  show  as  to  what  role  the  appellants  either conjointly or separately played. It is also not  known as to whether if one or all of the appellants  were present, when the last blow was given. Who  are those who had assaulted the deceased is also  not known. At whose hands he received injuries is  again  a  mystery.  Neither  Section 34 nor  Section  149 of the Penal Code is, therefore, attracted. (See  Dharam Pal v.  State  of  Haryana and  Shambhu  Kuer v. State of Bihar)”

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16. The question came up for consideration before this Court in  Baladin  

& Others v. State of Uttar Pradesh [AIR 1956 SC 181] wherein B.P. Sinha,  

J., as the learned Chief Justice then was, opined that with a view to invoke  

the provisions of Section 149 of the Indian Penal Code, “it was necessary  

therefore for the prosecution to lead evidence pointing to the conclusion that  

all the appellants before us had done or been committing some overt act in  

prosecution  of  the  common  object  of  the  unlawful  assembly”.   It  was  

furthermore stated:

“…The evidence as recorded is in general terms to  the  effect  that  all  these  persons  and  many  more  were the miscreants and were armed with deadly  weapons,  like  guns,  spears,  pharsas,  axes,  lathis,  etc. This kind of omnibus evidence naturally has to  be very closely scrutinised in order to eliminate all  chances  of  false  or  mistaken  implication.  That  feelings were running high on both sides is beyond  question.  That  the  six  male  members  who  were  done  to  death  that  morning  found  themselves  trapped  in  the  house  of  Mangal  Singh  has  been  found by the courts below on good evidence. We  have  therefore  to  examine  the  case  of  each  individual  accused to  satisfy ourselves  that  mere  spectators  who had not  joined  the  assembly  and  who  were  unaware  of  its  motive  had  not  been  branded  as  members  of  the  unlawful  assembly  which  committed  the  dastardly  crimes  that  morning. It has been found that the common object  of the unlawful assembly was not only to kill the  male members of the refugee families but also to  

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destroy  all  evidence  of  those  crimes.  Thus  even  those who did something in  connection with  the  carrying of the dead bodies or disposal of them by  burning them as aforesaid must be taken to have  been actuated by the common objective.”

The aforementioned observation was, however, not accepted later by  

this Court as an absolute proposition of law and was held to be limited to the  

peculiar fact of the case in  Masalti v.  State of U.P. [(1964) 8 SCR 133] in  

the following terms:

“…What has to be proved against a person who is  alleged to be a member of an unlawful assembly is  that  he  was  one  of  the  persons  constituting  the  assembly  and he entertained long with  the  other  members  of  the  assembly  the  common object  as  defined by Section 141 IPC Section 142 provides  that  however,  being aware of facts  which render  any assembly an unlawful assembly intentionally  joins that assembly, or continue in it, is said to be a  member of an unlawful assembly. In other words,  an assembly of five or more persons actuated by,  and entertaining one or more of the common object  specified by the five clauses of Section 141, is an  unlawful  assembly.  The  crucial  question  to  determine in such a case 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  by  Section  141.  While  determining  this  question,  it  becomes  relevant  to  consider  whether  the  assembly  consisted  of  some  persons  who  were  merely  passive witnesses and had joined the assembly as a  

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matter  of  idle  curiosity  without  intending  to  entertain the common object of the assembly…”

17. We may, however, notice that whereas the principle of law laid down  

in Masalti (supra) is beyond any doubt or dispute, its application in the later  

cases has not been strictly adhered to.  This Court, as would appear from the  

discussions  made  hereinafter,  in  some  of  its  decisions  had  proceeded  to  

determine the issue in the factual  matrix obtaining therein although some  

observations of general nature had been made.

18. In  Sherey  and  Others v.  State  of  U.P. [1991  Supp  (2)  SCC  437]  

involved a case where there was a dispute between Hindus and Muslims of a  

village regarding a grove.  Whereas the Hindus were claiming that it was a  

grove, the Muslims were claiming it to be a graveyard.  A large number of  

Muslims, about 25 in number, came out with lethal weapons and killed three  

persons and injured others.  Before this Court an argument was advanced  

that the appellants against whom no overt act was attributed but were part of  

the unlawful assembly should be held to be not guilty was accepted, stating:

“…Therefore,  it  is  difficult  to  accept  the  prosecution  case  that  the  other  appellants  were  members of the unlawful assembly with the object  of  committing  the  offences  with  which  they  are  charged.  We  feel  it  is  highly  unsafe  to  apply  

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Section  149  IPC  and  make  everyone  of  them  constructively liable. But so far as the above nine  accused are concerned the prosecution version is  consistent namely that they were armed with lethal  weapons  like  swords  and  axes  and  attacked  the  deceased  and  others.  This  strong  circumstance  against them establishes their presence as well as  their  membership  of  the unlawful  assembly.  The  learned counsel appearing for the State vehemently  contended that the fact that the Muslims as a body  came to the scene of occurrence would show that  they were members of an unlawful assembly with  the common object of committing various offences  including  that  of  murder.  Therefore  all  of  them  should  be  made  constructively  liable.  But  when  there is a general allegation against a large number  of persons the Court naturally hesitates to convict  all of them on such vague evidence. Therefore we  have to find some reasonable circumstance which  lends assurance. From that point of view it is safe  only to convict the abovementioned nine accused  whose presence is not only consistently mentioned  from the stage of FIR but also to whom overt acts  are attributed…”  

19. Similarly, in Musa Khan and Others v. State of Maharashtra [(1977) 1  

SCC 733], it was opined:

“…It  is  well  settled  that  a  mere  innocent  presence in an assembly of persons, as for example  a bystander, does not make the accused a member  of  an  unlawful  assembly,  unless  it  is  shown by  direct or circumstantial evidence that the accused  shared the common object of the assembly. Thus a  

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court is not entitled to presume that any and every  person who is proved to have been present near a  riotous mob at any time or to have joined or left it  at any stage during its activities is in law guilty of  every act committed by it  from the beginning to  the end, or that each member of such a crowd must  from  the  beginning  have  anticipated  and  contemplated the nature of the illegal activities in  which the  assembly  would subsequently indulge.  In other words, it must be proved in each case that  the person concerned was not only a member  of  the unlawful assembly at some stage, but at all the  crucial stages and shared the common object of the  assembly at all these stages…”

It was opined therein that as evidence was wholly lacking that all of  

them had taken part at all stages of the commission of offence, they were  

held to be not guilty of the charges levelled against them.

20. Yet again in Nagarjit Ahir v.  State of Bihar [(2005) 10 SCC 369], it  

was opined:

“…Moreover,  in  such  situations  though  many  people may have seen the occurrence, it may not  be  possible  for  the  prosecution  to  examine  each  one of them. In fact, there is evidence on record to  suggest  that  when  the  occurrence  took  place,  people  started  running  helter-skelter.  In  such  a  situation it would be indeed difficult to find out the  other  persons  who  had  witnessed  the  occurrence…”

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It was furthermore observed:

“…In such a case, it may be safe to convict only  those  persons  against  whom overt  act  is  alleged  with the aid of Section 149 IPC, lest some innocent  spectators may get involved. This is only a rule of  caution and not a rule of law…”

21. Almost a similar view has been taken in Hori Lal and Another v. State  

of U.P. [(2006) 13 SCC 79] wherein this Court noticed both Baladin (supra)  

and Masalti (supra) as also other decisions to opine:

“23. Common object would mean the purpose or  design  shared  by  all  the  members  of  such  assembly. It may be formed at any stage. 24. Whether in a given case the accused persons  shared common object or not, must be ascertained  from the acts and conduct of the accused persons.  The  surrounding  circumstances  are  also  relevant  and may be taken into consideration in arriving at  a conclusion in this behalf. 25.  It  is  in  two  parts.  The  first  part  would  be  attracted  when  the  offence  is  committed  in  furtherance  of  the  common  object.  The  offence,  even if is not committed in direct prosecution of  the common object of the assembly,  Section 149  IPC may still be attracted.”

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What was, therefore, emphasized was that not only the acts but also  

the conduct and surrounding circumstances would be the guiding factors.   

22. In Shankaraya Naik & Ors. v. State of Karnataka [2008 (12) SCALE  

742], this Court held:

“5…It is clear from the record that the accused had  come to the place of incident duly armed and had  immediately  proceeded  with  the  attack  on  the  opposite party and had caused serious injuries to  the deceased and to as many as eight witnesses. It  is  also  clear  from the  facts  preceding  the  attack  that there was great animosity between the parties  and it  must,  therefore,  be inferred that  when the  accused had come armed with lethal weapons, the  chance that somebody might be killed was a real  possibility.”

23. In  Maranadu and Anr. v.  State By Inspector of Police, Tamil Nadu  

[2008 (12) SCALE 420], this Court stated the law, thus:

“17. `Common object' is different from `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  

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circumstances. It may be gathered from the course  of  conduct  adopted  by  the  members  of  the  assembly. For determination of the common object  of the unlawful assembly, the conduct of each of  the members of the unlawful assembly, before and  at the time of attack and thereafter, the motive for  the crime, are some of the relevant considerations.  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.”

24. We may, however, notice that therein this Court had taken note of an  

earlier decision of this Court in State of U.P. v. Dan Singh and Ors. [(1997)  

3 SCC 747] wherein it was held:

“34.  Mr  Lalit  is  right  in  submitting  that  the  witnesses  would  be  revengeful  as  a  large-scale  

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violence had taken place where the party, to which  the eyewitnesses belonged, had suffered and it is,  therefore,  necessary  to  fix  the  identity  and  participation  of  each  accused  with  reasonable  certainty. Dealing with a similar case of riot where  a large number of assailants who were members of  an  unlawful  assembly  committed  an  offence  of  murder  in  pursuance  of  a  common  object,  the  manner  in  which  the  evidence  should  be  appreciated  was  adverted  to  by  this  Court  in  Masalti case at p. 210 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.”

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25. The decisions of this Court in Shankaraya Naik (supra) and Maranadu  

(supra), therefore, do not militate against the proposition of law in regard to  

appreciation of evidence, which we have to apply herein.

26. The prosecution in a case of this nature was required to establish (i)  

whether the appellants were present; and (ii) whether they shared a common  

object.   

The mob indisputably raided the house of the first informant.  Most of  

the  members  thereof  were  armed  with  deadly  weapons.   They  not  only  

committed gruesome acts but also when their attempt to assault others was  

frustrated as the prosecution witnesses bolted themselves in a room, set the  

two portions of the house on fire, as a result whereof they had to come out.  

It  had not been denied or disputed that  they were inimically disposed of  

towards the family.   

We have been taken through the evidences of PWs 1 and 9 almost in  

their entirety.   We did not find even a suggestion having been thrown at  

them that their story that the sister of the appellant Kazem was married twice  

to two sons of PW-1 as a result whereof Kazem bore a grudge against them  

is incorrect.

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27. We also do not find any material on record to disbelieve that part of  

the  evidences  of  PWs  1  and  9  that  keeping  in  view  the  rein  of  terror  

unleashed by Kazem they had to leave the village and they came back only  

after 20 days prior to the occurrence.  In the meanwhile, the sister of Kazem  

having come to their residence, she was married to Akramul.

28.  Whereas this part of the prosecution story, in our considered opinion,  

has rightly been relied upon by the learned Sessions Judge as also the High  

Court in arriving at their conclusion, the defence side of the story should  

also not be ignored.  While saying so, we are not oblivious of the dicta that  

enmity is a two-edged weapon.  Whereas it is possible as was the case in  

Masalti (supra) that the accused had formed a common object, the chances  

of  some  of  the  accused  having  been  falsely  implicated  for  extraneous  

reasons also cannot be ruled out.

29. The discrepancies in the statements of PWs 1 and 9 with regard to the  

presence of some of the appellants have been noticed by us hereinbefore.  

Akhtar, appellant in Criminal Appeal No. 2041 of 2008 had not been named  

by any of those witnesses.  On what basis, a judgment of conviction could be  

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recorded against him is beyond our comprehension.  Similarly, three others  

had  not  been  named by  PW-1  at  all.   In  the  court,  PW-1  identified  19  

persons.   Three  were  absent.   He,  therefore,  did  not  identify  the  others.  

According to him, he did not remember the names of other persons.   

30. Mr. Bhattacharjee would contend that whereas PW-1 was examined  

ten years after the occurrence, PW-9 had been examined after twenty years  

after the occurrence.  This may be so.  It is unfortunate that for one reason or  

the other the trial was not completed for a period of twenty years.  Pendency  

of  a  criminal  case  for  a  long  time,  as  is  evident  from the  fact  noticed  

hereinbefore, is extremely hazardous.  But, then omission on the part of a  

prosecution witness to name and identify an accused in the dock cannot be  

held to be wholly insignificant  so as to record a judgment of conviction.  

Presence of an accused while the offence was committed is a sine qua non to  

find him guilty of being a member of unlawful assembly.  If his presence is  

doubted, question of finding him guilty does not arise.

31. In  a  case  of  this  nature,  the  rule  of  prudence  should  be  applied.  

Something more than their being cited as an accused in a witness box would  

be necessary.   The court  must  have before it  some materials  to form an  

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opinion that they had shared a common object.  It has not been denied or  

disputed  that  whereas  five  brothers  were  implicated  as  one  brother  had  

deposed against PW-9 and sons had also been implicated because a father  

had deposed against them.  Whereas PW-1 in his deposition denied that the  

accused deposed in the case in which a son was found to be guilty of murder  

of Dol Gobinda Acharya (ex-Pradhan), PW-9 admitted that he committed  

the said murder in broad daylight.  The defence that there were other reasons  

for their false implication cannot also be ruled out.  In our opinion, there  

exists absence of any clinching evidence as against the seven appellants in  

Criminal Appeal No. 2040 of 2008, particularly when three of them had not  

been named at all by PW-1 and four of them had not been named by PW-9.

32. We are not unmindful that Akbar and Kanku have been named by  

both the witnesses but even against them no overt act has been attributed.

33. We,  therefore,  are  of  the  opinion  that  doubts  legitimately  arise  as  

regards their presence and/ or sharing of common object.  While saying so,  

we are not oblivious of the fact that the incident had taken place at the dead  

of night.  Enmity between two groups in the village is admitted.  But, we  

cannot also lose sight of the fact that a person should not suffer rigorous  

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imprisonment for life although he might have just been a bystander without  

anything more.   

34. Submission of Mr. Ghosh that the First Information Report is ante-

timed cannot be accepted.  It is possible that PW-1 because of lapse of time  

has made certain statements which go beyond the record, viz., holding of  

inquest before the FIR was recorded.  The number of accused persons in the  

First  Information  Report  might  have  also  been  put  by  the  investigating  

officer at a later point of time.  The fact that the post mortem examination  

had been held on 16.05.1982 itself goes a long way to establish the genesis  

of the occurrence.  While saying so, we are not unmindful of the fact that the  

First Information Report was sent to the Magistrate after 24 hours.  But then,  

in a case of this nature such a delay may not, by itself, be held to be fatal.

35. We are also unable to accept the submission of Mr. Rauf Rahim that  

Kabir was a juvenile on the date of occurrence.  No such question had ever  

been raised.  Even where a similar question was raised by five other accused,  

viz.,  Jahangir,  Motahar,  Mosi, Chosi and Habal,  no such plea was raised  

even before the  High Court.   Reliance  inter  alia  has been placed on the  

statement of Kabir under Section 313 of the Code of Criminal Procedure  

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wherein he stated his age to be 33 years in 2001.  Such a statement, in our  

opinion, is not decisive.  Reliance has also been placed on a voters’ list.  The  

said voters’ list  had been prepared long after the incident  occurred.   The  

same is again not decisive.   

36. In  the  facts  and  circumstance  of  this  case  and  particularly  having  

regard to the specific role attributed to him, viz.,  he was one of the four  

persons who had taken away Akramul with Buddik, Ruli and Sadek and the  

said evidence brought on record by the prosecution having been relied upon  

by both the courts below, we do not see any reason to interfere therewith.

Similarly,  not  only  in  the  First  Information  Report  but  also  the  

prosecution  witnesses,  viz.,  PWs  1  and  9,  specifically  attributed  role  of  

Kazem.  Kazem took a specific defence of alibi.  It was for him to prove the  

same.  

37. The  Trial  Court  noticed  that  the  certificate  issued  by  Dr.  Dulal  

Chowdhury  was  issued  by  him  in  his  private  capacity  as  Medical  

Practitioner.  The Trial Court noticed:

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“In cross-examination it  transpires that he issued  the  certificate  in  the  year  1991  but  he  cannot  recollect the time and date when Kazem Ali was  admitted at Suri Hospital and also cannot say also  under what condition he was discharged from Suri  Hospital without perusal of the records.”  

The Trial Court held:

“Ext. B and C are the certificates dated 7.5.91 and  the  discharge  certificate  issued  by  Dr.  Dulal  Chowdhury was issued on 7.5.91 and Ext. C was  issued on 5.12.81.  It is crystal clear from Ext. C  that Kazem Ali was discharged on 5.12.81 and on  the reverse side of this certificate it is also crystal  clear  that  pt.  can  resume  his  usual  duty.   This  shows that on and from 05.12.81 the pt. i.e. Kazem  Ali  was  fit  to  resume  his  normal  duty.   That  Kazem Ali was not fit on the date of incident i.e.  on  16.05.82  does  not  arise  at  all.   The  defence  lawyer has failed to establish the fact that Kazem  was under the treatment of Dr. Chowdhury on the  date of occurrence i.e. 16.05.82 does not stand at  all.  Therefore, the contention of the defence is that  at the time of the said occurrence, accused Kazem  was under the treatment of Dr.  Dule Chowdhury  has not been established.”

38. The  learned  Trial  Judge,  in  our  opinion,  has  for  good  reasons  

disbelieved the certificate given by Dr. Dulal Chowdhury.  If the appellant  

could  not  establish  his  plea  of  alibi,  in  our  opinion,  on  the  face  of  the  

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records, no case has been made out to interfere with the judgment of Trial  

Court/ High Court.

39. In  the  result,  Criminal  Appeal  Nos.  2040  and  2041  of  2008  are  

allowed  and  Criminal  Appeal  Nos.  2042  of  2008  and  28  of  2009  are  

dismissed.

………………………….J. [S.B. Sinha]

..…………………………J.     [R.M. Lodha]

New Delhi; May 05, 2009

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