REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NO. 494 OF 2001

Maranadu and Anr. ….Appellants

Versus

State by Inspector of Police, Tamil Nadu ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. In this appeal challenge is to the judgment of a Division

Bench of the Madras High Court dismissing the appeal filed by

the appellants who were appellant nos. 5 and 6 before it and

before the trial Court they were accused Nos. 5 and 6.  Before

the trial Court there were six accused persons. After finding

them guilty  of  various offences  the trial  Court  recorded the

conviction and imposed sentences in the following manner:

“A-1 is found guilty of charges under Section 147  IPC  and  sentenced  to  2  years  rigorous imprisonment. A-2 to A-6 are found guilty of charge under  Section  148  IPC  and  each  one  of  them is sentenced to 2 years RI. A1, A-2 and A-4 are found guilty  of  the  charge  under  Section  302  IPC  read with Section 34 and each one of them is sentenced to life imprisonment. A3, A5 and A6 are found guilty of  the  charge  under  Section  302  IPC  read  with Section 149 and each one of them is sentenced to life imprisonment. A3 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A5 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A6 is found guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A3, A5 and A6 are found guilty of the charge  under  Section  9(b)(1(b)  of  the  Indian Explosives Act and each one of them is sentenced to 2  years  RI.  The  above  sentences  shall  run concurrently.”

2. Background facts as highlighted by the prosecution are

as follows:

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The Inspector of Police, Usilampatti filed the charge sheet

against the accused  stating that due to previous enmity A1 to

A6  with  common  motive  to  commit  murder  of  Sundaram

(hereinafter  referred  to  as  ‘deceased’)  and  the  witnesses

Annakodi  (PW-1),  Ayyar  (PW-2)  and  Mokkai,  assembled

unlawfully at about 10.45 a.m. on 11.10.89 in front of the tea

shop  of  Raju  @  Raja  opposite  to  Malayandi  Theatre

Usilampatti  on  Madurai-Usilampatti  main  road.   A2  to  A6

were in possession of the dangerous weapon Aruval and A3,

A5 and A6 were in possession of country made bombs and

committed commotion along with A1.  Charges were framed

against A1 under Section 147 IPC and against A2 to A6 under

Section 148 IPC and that in continuance of the commission of

the  said  offence,  A1  caught  hold  of  the  right  hand  of

Sundaram and said “cut and kill him” and A4 inflicted cut on

the right hand of Sundaram with the aruval and further A2 to

A4 inflicted cuts on neck of Sundaram indiscriminately and

hence Sundaram died and charges were framed against A1,

A2 and A4 under Section 302 IPC and against A3, A5 and A6

under Section 302 IPC read with Section 149 IPC. When the

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witnesses  Annakodi  (PW-1),  Ayyar  (PW-2)  and  Mokkai  who

saw the falling down of Sundaram, A3, A5 and A6 ran away

and  with  the  motive  of  committing  the  murder,  threw  the

country bombs on them and hence the witnesses Annakodi

and Ayyar sustained injuries and charges were framed against

A3, A5 and A6 under Section 307 IPC and against A1, A2 and

A4 under Section 307 IPC read with Section 149 and during

investigation  it  came  to  light  that  A3,  A5  and  A6  were  in

possession of  country  bombs without  any valid  license  and

hence  charges  were  framed  against  A3,  A5  and  A6  under

Section 9(b)1(b) of the Indian Explosives Act,1884 (in short the

‘Explosives Act’).  

On perusal of the records and documents in the case and

upon  hearing  the  arguments  of  the  Public  Prosecutor  and

defence  counsel,  trial  court  came  to  hold  that  there  was

sufficient  evidence  to hold  that the accused  had committed

the offences and the charges were framed.    

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3. The  accused  denied  the  accusations  and  were  put  on

trial.  

4. The  trial  Court  recorded  the  conviction  and  imposed

sentences primarily placing reliance on the evidence of PW-1,

son of the deceased and PW-2 the brother-in-law of PW-1. The

conviction and the consequential  sentences were challenged

before  the  High  Court  which as  noted  above  dismissed  the

appeal.  

5. In  support  of  the  appeal,  learned  counsel  for  the

appellants submitted  that the evidence of PWs 1 and 2 should

not have been relied on because they are interested witnesses

being related to the deceased. In any event, Section 149 has

no application. It is further submitted that even if the evidence

of PWs 1 and 2 is accepted they cannot be related to the fatal

injuries and the injuries were not caused to the deceased.  In

fact it is stated that A-5 i.e. appellant No.1 in the present case

had only  thrown a bomb at PW-2 who sustained injuries on

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his  cheek  and left  chest  and A-6 i.e.  appellant  No.2  in the

present appeal threw a bomb which did not explode.  

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

hand supported the judgments of the trial Court and the High

Court.  

7. 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 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

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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.

8. 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 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.”

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9. 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.

10. We may also observe that the ground that the witness

being  a  close  relative  and  consequently  being  a  partisan

witness, should not be relied upon, has no substance.  This

theory was repelled by this Court as early as in Dalip Singh’s

case  (supra)  in  which  surprise  was  expressed  over  the

impression which prevailed in the minds of the Members of

the  Bar  that  relatives  were  not  independent  witnesses.

Speaking through Vivian Bose, J. it was observed:  

“We  are  unable  to  agree  with  the  learned Judges of the High Court that the testimony of the  two eyewitnesses  requires  corroboration. If  the  foundation for  such an observation  is based  on  the  fact  that  the  witnesses  are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.  This is a fallacy common to many criminal cases and one which another Bench of  this  Court  endeavoured  to  dispel  in  – ‘Rameshwar v.  State of Rajasthan’ (AIR 1952 SC  54  at  p.59).   We  find,  however,  that  it

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unfortunately  still  persists,  if  not  in  the judgments of  the  Courts,  at  any rate  in the arguments of counsel.”

11. 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.”

12. 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).  

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13. 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).

14. The over insistence on witnesses having no relation with

the victims often results in criminal justice going awry.  When

any incident happens in a dwelling house the most natural

witnesses  would  be  the  inmates  of  that  house.   It  is

unpragmatic to ignore such natural witnesses and insist on

outsiders  who would not have  even seen any thing.   If  the

Court  has  discerned  from  the  evidence  or  even  from  the

investigation records that some other independent person  has

witnessed any event connecting the incident in question then

there  is  justification  for  making  adverse  comments  against

non-examination  of  such  person  as  prosecution  witness.

Otherwise, merely on surmises the Court should not castigate

a prosecution for not examining other persons of the locality

as  prosecution  witnesses.   Prosecution  can  be  expected  to

examine only those who have witnessed the events and not

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those who have not seen it though the neighborhood may be

replete with other residents also. [See:  State of Rajasthan  v.

Teja Ram and Ors.  (AIR 1999 SC 1776)].

15. We shall  next  deal  with the applicability of Section149

IPC.

16. 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 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

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general proposition of law that unless an overt act is proved

against a person, who is alleged to be a member of unlawful

assembly,  it  cannot  be  said  that  he  is  a  member  of  an

assembly.   The  only  thing required  is  that  he  should  have

understood that the assembly was unlawful and was likely to

commit  any  of  the  acts  which  fall  within  the  purview  of

Section 141.  The word ‘object’ means the purpose or design

and, in order to make it ‘common’, it must be shared by all.

In other words, the object should be common to the persons,

who compose the assembly, that is to say, they should all be

aware of it and concur in it.  A common object may be formed

by express agreement after mutual consultation, but that is

by no means necessary.  It may be formed at any stage by all

or  a few members of  the assembly and the other  members

may just join and adopt it. Once formed, it need not continue

to be the same.  It may be modified or altered or abandoned at

any stage.  The expression ‘in prosecution of common object’

as appearing in Section 149 have to be strictly construed as

equivalent to ‘in order to attain the common object’. It must

be immediately connected with the common object by virtue of

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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.

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

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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  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

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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.

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  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

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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  part  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

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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 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 likely to be committed in the prosecution of the

common object.  (See Chikkarange Gowda and others v. State

of Mysore : AIR 1956 SC 731.)

19. 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

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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”.

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

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

381).  

21. When  the  factual  scenario  is  considered  in  the

background of the principles set out above the inevitable  is

that Section 149 is clearly applicable as has been rightly held

by the trial Court and the High Court.  The appeal is without

merit, deserves dismissal which we direct.    

……..............................J.

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(Dr. ARIJIT PASAYAT)

.…….............................J. (P. SATHASIVAM)

.…….............................J. (AFTAB ALAM)

New Delhi, September 15, 2008

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