REPOTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.292 OF 2006

Gunnana Pentayya @ Pentadu & Ors. …Appellants

Versus

State of A.P. …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division

Bench  of  the  Andhra  Pradesh  High  Court  confirming  the

conviction of the appellant for offences punishable under Section

302 of the Indian Penal Code, 1860 (for short ‘IPC’), so far as the

appellants 1 to 7 are concerned. The others have been convicted

1

for offence punishable under Section 302 read with Section 149

IPC.

2. Originally,  there were 57 accused persons. Some of them

were acquitted by learned Sessions Judge, Vizianagaram.  The

present appeal is filed by accused nos. 1 to 7, 8, 12, 21 and 24,

A1, A8, A12, A21 and A24 were convicted for homicidal death of

Appalasamy (hereinafter  referred to as ‘D1’).   A1 and A7 were

convicted for causing death of Appallanaidu  (D2).     

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

Accused  party  belongs  to  a  particular  political  party.

Prosecution  party  belonged  to  another  political  party.  On

29.1.2000 around 6.30 A.M., all the accused persons Al to A57

came in a mob to the house of D-2 Appalanaidu and attacked

him with dangerous  weapons.  Then they went to D-1's  house

and attacked him. Thereupon they went round the village and

attacked  the  Congress  supporters  P.W.4  to  P.W.33.  P.W.1

Potnuru  Laxminarayana  the  wife  and  P.W.2  son  of  D-2,  are

2

eyewitness  for  the  attack  on  D-2.  P.W.3  wife  of  D-1,  is  the

eyewitness to the death of D-1.

The motive for the attack is that a love letter was sent by

son of A-47 to a girl, who was a relative of D-2. Due to this there

was a clash between the two groups. A case and counter cases

were registered as Crime No.11 and 12 of 2000. Both the parties

were arrested. Thereafter there was rumour that one person of

the accused group was killed. So the entire mob of the accused

group came and attacked D-1, D-2 and others. All the injured

persons were taken to Hospital at Gajapathipuram.

P.W.53  Sub-Inspector  of  Police  went  to  the  hospital  and

recorded the statement from P.W.1. The case was registered as

crime No.13 of 2000 for various  offences  including Section 307

of IPC. On 31.1,2000, D-1 died. On 10.2.2000, D-2 died. Case

was altered to Section 302 IPC. P.W.53 Inspector of Police took

up the investigation. After investigation, charge sheet was filed

against Al to A57 for various offences including Section 302 IPC.

The  Trial  Court  acquitted  some  of  the  accused  persons  and

3

convicted Al to A7 for offence punishable under Section 302 IPC

and  some  other  accused  for  the  offence  punishable  under

Section  302  read  with  Section  149  for  causing  death  to  D-2

Appalanaidu. Trial Court convicted A-1, A-8, A-12, A-21 and A-

24  for  offence  punishable   under  Section  302  IPC  and  some

other accused for offence under Section 302 read with Section

149 for causing death of D-1 Appalasamy. Other accused were

convicted for the offences punishable  under Section 148, 325,

323,  452 for  the  individual  offences  in respect  of  the  injuries

inflicted  on the witnesses.  However,  in appeal  the  High Court

acquitted  the  accused  persons in respect  of  Section 302 read

with Section 149 holding that there was no common object. The

High  Court  confirmed  the  conviction  for  the  offence  under

Section 302 IPC as against Al to A7 for causing death of D-2 and

as against Al, A8, A12, A21 and A24 in respect of death of D-1.

Hence the appeal by these 11 appellants.

4. In support of the appeal, learned counsel for the appellant

submitted  that  PW’s  1  evidence  is  unreliable  because  the

complaint Ex.P1 is contrary to what she deposed in Court.  It

4

was submitted that the overt acts individually for the first time

stated  in  court.   Secondly,  it  is  submitted  that  the  weapons

purportedly used are not correctly stated by PW1.  Presence of

PW 2  is  not  stated  in  Ex.P1  by  PW1  and  also  not  stated  in

statement recorded under Section 161 of the Code of Criminal

Procedure,  1973 (in short  the ‘Code’).   It  is  further submitted

that the statement of PW1 that the accused persons told her that

they will not harm her is not believable.  Since the prosecution

case was that the people belonging to a particular political party

were to be attacked, there is no reason as to why PWs 1, 2 and 3

were not attacked.   Since the Trial  Court  and the High Court

have  found  that  the  allegations  were  not  fully  established

because some of the accused persons were falsely implicated, the

evidence  of  witnesses  is  suspect.   The  evidence  of  PW2  is

unreliable  as  his  presence  is  impossible  and  PW3  is  also

unreliable.   There  was a counter case and the injuries on the

accused had not been explained.

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

supported the judgments of the courts below.   

5

6. So  far  as  the  non-mention  of  the  details  in  Ex.P1  is

concerned,  the  first  information  report  is  not  supposed  to  be

encyclopedia of all details. In the instant case, all relevant details

have been indicated in the first information report.  It is to be

noted that the High Court categorically held that the presence of

PW4 to 33 because of receipt of injuries by them was established

beyond  all  reasonable  doubt.  Therefore,  there  was  no  serious

doubt about the evidence of PWs. 4 to 33.   

7. Learned counsel for the appellants submitted that because

of the admitted political rivalry and the relationship of the PWs 1,

2 and 3 their evidence should have been rejected.  This Court in

Gauri  Shanker  Sharma v.  State  of  U.P. (AIR  1990  SC  709)

observed that unless there are sound grounds to reject evidence

of the so called interested witness it would not be proper to hold

that they are interested witnesses.

8. As rightly noted by the High Court the incident in question

took  place  on  29.1.2000  in  the  morning  in  the  house  of  D2.

6

Therefore, the presence of PW1 who was his wife is natural.  So

far as the evidence of PW3 is concerned, she stated that A1, A8,

A12, A21 and A24 came to her house. A1 hit her husband with a

stout stick on his head.  A24 beat with him the stick and A8,

A12 and A21 beat with sticks indiscriminately on his body as a

result  of  which  D1  sustained  grievous  injuries.  Except

suggesting  that  A1,  A8,  A12,   A21 and A24 did  not  beat  her

husband,  nothing has been elicited to discard her testimony.

Her presence  also cannot be doubted because  it  was morning

time and the incident took place  when D1 came out from his

house.   Therefore,  the  evidence  of  PWs1  and  3  cannot  be

doubted and discarded  merely  because  38 persons have been

named in the first information report.             

9. So  far  as  non-mention of  name of  PW2 is  concerned,  in

State of Madhya Pradesh v. Mansingh (2003 (10) SCC 414) it was

observed  that mere  non-mention of  name  of  witness  does  not

render the prosecution version fragile. There can be no hard and

fast  rule  that  names  of  witnesses,  more  particularly,  eye

witnesses  should  be  indicated  in  the  FIR.   Even  otherwise,

7

though name of PW2 has not been specifically mentioned in the

first information report, it cannot be lost sight that he is the son

of the deceased and the incident took place in his house.  His

presence is natural considering the time when the incident took

place.  Though it was raised that there was delay in examination

of PW2, the same is without substance in view of what has been

stated by this Court in State of U.P. v.  Satish  (2005 AIR SCW

905).  It  was observed that this Court in several  decisions has

held that unless the investigating officer is categorically asked as

to  why  there  was  delay  in  examination  of  the  witness,  the

defence cannot take advantage therefrom.  In the instant case,

no question  has been  asked  to  the  investigating  officer  PW53

regarding the reason for  delay.  There  was even  no suggestion

that PW2 was not present in the house when the incident took

place.   

10. A plea which was emphasized by the appellants 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

8

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

9

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.

10

11. ‘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.  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

11

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.

12. 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

12

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

13

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

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 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 committed in the prosecution of the common object.  (See

Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC

731.)

13. 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

14

which of the members of the unlawful assembly  did which or

what act. Reference was made to Lalji  v.  State of U.P. (1989 (1)

SCC 437) 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”.

14. This position has been elaborately stated by this Court in

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381

and  Shivjee  Singh  and  Ors.  v.  State  of  Bihar  (SLP  (Crl.)

No.1494/2004 disposed of on 30.7.2008).  

15. The  next  plea  as  noted  above  related  to  the  acquittal  of

number of persons. Stress was laid by the accused-appellants on

the  non-acceptance  of  evidence  tendered  by  PW1  to  a  large

extent  to  contend  about  desirability  to  throw  out  entire

prosecution case. In essence prayer is to apply the principle of

"falsus in uno falsus  in omnibus"  (false  in one thing,  false  in

15

everything). This plea is clearly untenable. Even if major portion

of evidence is found to be deficient, in case residue is sufficient

to prove guilt of an accused, his conviction can be maintained. It

is the duty of Court to separate grain from chaff. Where chaff can

be separated from grain, it would be open to the Court to convict

an  accused  notwithstanding  the  fact  that  evidence  has  been

found  to  be  deficient,  or  to  be  not  wholly  credible.  Falsity  of

material particular would not ruin it from the beginning to end.

The maxim "falsus in uno falsus in omnibus" has no application

in India and the witness or witnesses cannot be branded as liar

(s).  The  maxim  "falsus  in  uno  falsus  in  omnibus"  has  not

received general acceptance nor has this maxim come to occupy

the status of rule of law. It is merely a rule of caution. All that it

amounts to, is that in such cases testimony may be disregarded,

and not that it must be disregarded. The doctrine merely involves

the question of weight of evidence which a Court may apply in a

given set of circumstances, but it is not what may be called 'a

mandatory rule of evidence. (See Nisar Alli  v.  The State of Uttar

Pradesh [AIR 1957 SC 366]. In a given case, it is always open to

a Court to differentiate  accused  who had been acquitted from

16

those who were convicted where there are a number of accused

persons. (See Gurucharan Singh and Anr. v. State of Punjab [AIR

1956 SC 460]. The doctrine is a dangerous one specially in India

for if a whole body of the testimony were to be rejected, because

witness was evidently speaking an untruth in some aspect, it is

to be feared that administration of criminal justice would come

to a dead-stop. Witnesses just cannot help in giving embroidery

to  a  story,  however,  true  in the main.  Therefore,  it  has to be

appraised in each case as to what extent the evidence is worthy

of acceptance, and merely because in some respects the Court

considers the same to be insufficient for placing reliance on the

testimony of a witness, it does not necessarily follow as a matter

of  law that it  must  be  disregarded  in all  respect  as well.  The

evidence has to be sifted with care. The aforesaid dictum is not a

sound rule for the reason that one hardly comes across a witness

whose evidence does not contain a grain of untruth or at any

rate  exaggeration,  embroideries  or embellishment.  (See  Sohrab

s/o Beli Nayata and Anr. v. The State of Madhya Pradesh [1972

(3) SCC 751]  and Ugar Ahir and Ors. v. The State of Bihar [AIR

1965 SC 277]. An attempt has to be made to, as noted above, in

17

terms of felicitous metaphor, separate grain from the chaff, truth

from falsehood. Where it is not feasible to separate truth from

falsehood,  because  grain and chaff  are  inextricably  mixed  up,

and in the process of separation an absolutely new case has to

be reconstructed by divorcing essential details presented by the

prosecution  completely  from the  context  and  the  background

against  which they  are  made,  the  only  available  course  to  be

made is to discard the evidence in toto.  (See  Zwinglee  Ariel  v.

State of Madhya Pradesh   [AIR 1954 SC 15] and  Balaka Singh

and Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed

by this Court in State of Rajasthan v. Smt Kalki and Anr. [1981

(2) SCC 752], 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

18

discrepancies do so. These aspects were highlighted in  Krishna

Mochi and Ors.  v.  State of Bihar etc. [2002 (6) SCC 81] and in

Sucha  Singh v.  State  of  Punjab [2003  (7)  SCC  643].  It  was

further illuminated in the  Zahira H. Sheikh v.  State of Gujarat

[2004 (4) SCC 158], Ram Udgar Singh v. State of Bihar [2004(10)

SCC 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12)

SCC 449] and in  Gubbala Venugopalswamy v.  State of Andhra

Pradesh [2004 (10) SCC 120].

16. So far as the non-explanation of injury on the accused is

concerned, in Anil Kumar v. State of U.P. (2004 (13) SCC 257), it

was held as follows:

“Non-explanation of  injuries  by  the prosecution will  not  affect  prosecution  case  where  injuries sustained  by  the  accused  are  minor  and superficial or where the evidence is so clear and cogent,  so  independent  and  disinterested,  so probable,  consistent  and  creditworthy,  that  it outweighs the effect of the omission on the part of  prosecution  to  explain  the  injuries.  As observed  by  this  Court  in  Ramlagan  Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not  called  upon  in  all  cases  to  explain  the injuries received by the accused persons.  It is for the defence to put questions to the prosecution witnesses  regarding the injuries  of  the accused

19

persons.   When  that  is  not  done,  there  is  no occasion for the prosecution witnesses to explain any injury on the person of an accused.  In Hare krishna  Singh  and  Ors. v.  State of  Bihar (AIR 1988 SC 863), it was observed that the obligation of  the  prosecution  to  explain  the  injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words,  it  is  not  an  invariable  rule  that  the prosecution has to explain the injuries sustained by the accused in the same occurrence.   If  the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused  beyond  reasonable  doubt,  question  of obligation  of  prosecution  to  explain  injuries sustained by the accused will not arise.   When the prosecution comes with a definite case that the offence has been committed by the accused and  proves  its  case  beyond  any  reasonable doubt,  it  becomes  hardly  necessary  for  the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused.  It  is more so when the injuries are simple  or superficial  in nature.   In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt  on  veracity  of  prosecution  case.  (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476).”

17. The appeal is without merit, deserves dismissal, which we

direct.       

………………………………..…J. (DR. ARIJIT PASAYAT)

20

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi:  August 20, 2008

21