REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  743   OF 2009 (Arising out of SLP( Crl.) No. 812 of 2008)

Bhupendra Singh & Ors. ..Appellants  

versus

State of U.P. .. Respondent              

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Allahabad  High  Court  dismissing  the  appeal  filed   by  the  appellants.

Seventeen  persons  had  filed  the  appeal  questioning  their  conviction  for

offence punishable  under  Sections  147,  302 read with Sections 149,  307

read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’).

Four of the accused persons namely Bishin Singh, Nathu Singh, Yatinder

Singh and Kundan Singh were separately convicted for offence punishable

under Section 148 IPC.  During the  pendency of  the appeal  eight  of the

accused persons died and their  appeal was held to have abetted so far as

they are concerned.

3. Prosecution versions as unfolded during trial is as follows:

On 13.4.19081 at about 7 a.m. in the Khlihan near village Hasanpur

under Soron Police  Station  of  District  Etah,  the incident  resulting  in  the

death of Jugendra Pal Singh  (hereinafter referred to as the ‘deceased’) was

occurred.  A case under Section 366/376 IPC regarding abduction and rape

of Kumari Asha and Munni both nieces (sister’s daughters) of complainant

was registered against the accused Yatendra Singh and others on 10.04.1981

at P.S. Soron. On 13.04.1981 at about 7:00 a.m., the complainant Suresh Pal

Singh,  his  brothers  Jugendra  Pal  Singh  and  Narendra  Pal  Singh and  his

nephew (sister's son) Mahesh Pal Singh, who was residing with him, were

going  to  see  their  Khilihan.  When  they  reached  near  the  Khalihan,  the

accused Bishan Singh, Jangi Singh, Gajju @ Gajraj Singh, Yatendra Singh

sons of Pyare Singh, Natthu Singh S/o Sahib Singh, Bhupendra Singh s/o

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Natthu Singh, Ombvir Singh @ Munna S/o Udaivir Singh, Udai Pratap S/o

Gajju Singh,  Suraj  Pal  Sijngh S/o  Amir Singh,  Dhoom Singh,  Munendra

Singh @ Ram Singh, Ram Vir Singh sons of Mkut Singh Thakur, Bhoodev,

Man Singh sons of )hamman, Mahendra Pal S/o Bhoodev, Ram Nath S/o

Hardev and Lalau S/o Shivan Mallah all residents of Village Hasanpur P.S.

Soron District Etah and Kundan Singh Tahkur R/o Village Kachhla, District

Budaun,  who  was  Samdhi  of  Natthu  Singh,  came  out  from the  side  of

Khalihand having lathies, tamancha and Farsa. The accused Natthu Singh

who-was armed with his licensed gun, exhorted saying, "Jugendra Pal Singh

Ko Pakad lo tatha jan se mar do, Kyunki hamare khilaf jhutha mukadam

darj karaya hai." On this exhortation, the accused persons with intention to

cause the death of Jugendra Pal Singh began to assault  him by lathi  and

other  weapons.   Somehow the  complainant  Suresh Pal  Singh,  his  bother

Narendra Pal Singh and his  sister’s  Son Mahesh Pal Singh escaped and

rushed  towards  village  raising  alarm.   On  hearing  hue  and  cry,  Smt.

Ramwati sister of the complainant and his mother Smt. Ketuki, his nieces

Munni and Asha and other village people came to the place of occurrence

and saw the incident.  When Smt. Ramwati and Smt. Ketuki tried to save

Jugendra Pal Singh, they were also assaulted by the accused persons, due to

which they sustained injuries.  Thereafter, the accused persons considering

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the injured Jugendra Pal Singh to have died, fled away towards Ganga Ji.

The complainant carried his brother Jugendra Pal Singh, sister and mother

by bullock cart to P.S. Soron, where he made over the their written report on

the basis of which chik FIR Exh. Ka4 was prepared by Gurudutt (PW 4),

who registered a case under Sections 147, 148, 149 and 307 IPC at Crime

No. 97/81 against above named accused persons on 13.4.1981 at 9.05 a.m.

entry of which was made in the GD No. 12.

4. After completion of investigation chargesheet was filed.  As accused

persons pleaded innocence, trial was held.  The trial court as noted above

found the accused persons  guilty and convicted  and sentenced them.  In

appeal the primary stand taken before the High Court was that evidence of

the so called witnesses are of no consequence.  It was also submitted that

Section  149  has  no  application  to  the  facts  of  the  case.   It  was  also

submitted that the prosecution did not lead specific evidence as to which

member of the alleged unlawful assembly did which or what act.  The High

Court found no substance in the plea and upheld the conviction.

5. In support of the appeal learned counsel for the appellant submitted

that the alleged act was done on the spur of the moment and though it was

stated that some of the accused persons were  holding deadly weapons, they

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were  not  used  and  therefore  the  conviction  as  recorded  cannot  be

maintained.

6. Learned counsel  for  the  respondent-State  on  the  other  hand

supported the judgment.

7. In the instant case the prosecution version as noted above is to the

following effect:

The  accused  Natthu  Singh  who-was  armed  with  his  licensed  gun,

exhorted  saying,  "Jugendra  Pal  Singh  Ko Pakad  lo  tatha  jan  se  mar  do,

Kyunki  hamare  khilaf  jhutha  mukadam  darj  karaya  hai."  On  this

exhortation,  the  accused  persons  with  intention  to  cause  the  death  of

Jugendra  Pal  Singh  began  to  assault  him  by  lathies  etc.  Somehow  the

complainant  Suresh  Pal  Singh,  his  bother  Narendra  Pal  Singh  and  his

sister’s  Son Mahesh Pal Singh escaped and rushed towards village raising

alarm.

8. Merely because the eye-witnesses are family members their evidence

cannot per se be discarded. When there is allegation of interestedness, the

same has  to  be  established.   Mere  statement  that  being  relatives  of  the

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deceased they are likely to falsely implicate the accused cannot be a ground

to discard the evidence which is otherwise cogent and credible.  We shall

also 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 and credible.

9. 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 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

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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.”

10. 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.

11. 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

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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  – ‘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.”

12. 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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13. To the same effect is the decisions 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).  

14. The above position was also highlighted in Babulal Bhagwan Khandare

and Anr.  v.  State  of  Maharashtra [2005(10)  SCC 404]  and  in  Salim

Saheb v. State of M.P.  (2007(1) SCC 699).

15. However, one plea which was urged with some amount of vehemence

was the applicability of Section 149 IPC.

16. 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 9

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 an 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 with 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  has  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

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unlawful  assembly may have  community  of  object  up  to  a  certain  point

beyond  which  they  may  differ  in  their  objects  and  their  knowledge,

possessed by each member of what is likely to be committed in prosecution

of  their  common  object  which  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.

17.  “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 11

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 eo instanti.

18.  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  a  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

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is  required in  the  second part  of  the  section.  The purpose for  which the

members  of  the  unlawful  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 within the second part but not within the first part. The

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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  the  first  part  but  offences committed in

prosecution of the common object;  would be generally, if  not always, be

within the second part, namely, offences which the parties knew to be likely

to be committed in the prosecution of the common object.

19. Above  being  the  position  the  trial  court  and  the  High  Court  were

justified in holding the appellant guilty.  We find no reason to interfere

in the appeal which is accordingly dismissed.

……..…….............................J. (Dr. ARIJIT PASAYAT)

……..…….............................J. (ASOK KUAMR GANGULY)

New Delhi, April 16, 2009  

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