REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    472            OF 2009 (Arising out of SLP (C) No.6030 of 2007)

Siyaram and Ors.  ...Appellants

Versus

State of M.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 learned Single Judge

of the Madhya Pradesh High Court setting aside the judgment of acquittal

recorded  by  learned  Chief  Judicial  Magistrate,  Morena.  Appellants  had

faced trial  for alleged commission of offences punishable  under Sections

148, 149, 294 read with Sections 149, 326 read with Sections 149 and 336

read with Section 149 Indian Penal Code, 1860 (IPC).  

3. Background facts in a nutshell are as follows:

On 28.6.1994 complainant  Ramniwas,  his brother  Om Prakash and

Radheshyam were doing work in the land in respect of which stay order had

been obtained by Siyaram. At the time of demarcation of the land both the

parties  were  present  but  due  to  dispute  between  both  the  parties,  one

panchnama was being prepared. Siyaram refused to sign in the panchnama

and a report was lodged by the complainant against them. Appellants came

there  with  deadly  weapons  like  lathi,  farsa  and  sword  etc.   Accused

Ramsewak inflicted  injuries  by farsa  on the  complainant.  He has  caused

injuries to his left hand and the accused caused injuries to his brother by

sword and also caused injuries to his younger brother which cut his finger.

The rest of the accused persons caused injuries by lathi. After beating the

complainant  and his brother,  the accused ran away from the spot. Report

was lodged in the police station. Spot map was prepared. Injured Ramniwas,

Radheshyam  and Om Prakash were sent for medical examination.  From the

medical  report  the  injuries  were found  to  be dangerous  to  life.  The trial

court after conclusion of trial acquitted the appellants.  

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The trial  Court  acquitted the present  appellants  on the ground that

there were material contradictions and omissions in the evidence of injured

eye witnesses. The High Court noted that there may be minor omissions and

contradictions but they were not of  such magnitude to warrant rejection of

the evidence of the eye witnesses.  

The High Court found that the evidence of injured witnesses i.e. PWs

1, 3 and 6 were fully corroborated by medical evidence and the trial Court

should not have directed acquittal.  Accordingly, allowing the appeal filed

by the State the High Court observed that the order of acquittal so far as it

relates to offence punishable under Sections 148, 324 read with Section 149

and  326  read  with  Section  149  IPC  was  to  be  set  aside.  However,  the

acquittal in respect of offences relatable to Sections 294 and 326 read with

Section 149 IPC was to  be  maintained.  Certain  custodial  sentences  were

imposed.  

4. In support of the appeal, learned counsel for the appellants submitted

that the trial Court had indicated sufficient reason for directing acquittal and

since the view taken by the trial Court was a possible view there was no

scope for interference.  It is submitted that Section 149 has no application.

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5. Learned counsel for the respondent on the other hand supported the

judgment  and  submitted  that  the  trial  Court  on  abrupt  conclusions  had

discarded the evidence of the eye witnesses which were fully corroborated

by medical evidence.  

6. There is no embargo on the appellate court reviewing the evidence

upon  which  an  order  of  acquittal  is  based.  Generally,  the  order  of

acquittal  shall  not  be  interfered  with  because  the  presumption  of

innocence of the accused is further strengthened by acquittal. The golden

thread  which  runs  through  the  web  of  administration  of  justice  in

criminal cases is that if two views are possible on the evidence adduced

in the case, one pointing to the guilt of the accused and the other to his

innocence,  the  view  which  is  favourable  to  the  accused  should  be

adopted.  The  paramount  consideration  of  the  court  is  to  ensure  that

miscarriage of justice is prevented. A miscarriage of justice which may

arise from acquittal of the guilty is no less than from the conviction of an

innocent. In a case where admissible evidence is ignored, a duty is cast

upon the appellate court to re-appreciate the evidence where the accused

has been acquitted, for the purpose of ascertaining as to whether any of

the accused really committed any offence or not. (See Bhagwan Singh v.

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State of M.P, 2003 (3) SCC 21).  The principle  to  be followed by the

appellate court considering the appeal against the judgment of acquittal

is to interfere only when there are substantial reasons for doing so. If the

impugned  judgment  is  clearly  unreasonable  and  irrelevant  and

convincing materials have been unjustifiably eliminated in the process, it

is a substantial reason for interference. These aspects were highlighted

by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973

(2) SCC 793), Ramesh Babulal Doshi v. State of Gujarat (1996 (9) SCC

225),  Jaswant  Singh v.  State  of  Haryana (2000  (4)  SCC  484),  Raj

Kishore Jha v.  State of Bihar (2003 (11) SCC 519),  State of Punjab v.

Karnail  Singh (2003  (11)  SCC 271),  State  of  Punjab v.  Phola  Singh

(2003 (11) SCC 58), Suchand Pal v. Phani Pal (2003 (11) SCC 527) and

Sachchey Lal Tiwari v. State of U.P. (2004 (11) SCC 410).

7. A plea which was emphasized by the appellant 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

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assembly is not proved, the accused persons cannot be convicted with the

help  of  Section  149.   The  crucial  question  to  determine  is  whether  the

assembly consisted of five or more persons and whether the said persons

entertained one or more of the common objects, as specified in Section 141.

It cannot be laid down as a general proposition of law that unless an overt

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

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

thing  required  is  that  he should  have  understood  that  the  assembly was

unlawful and was likely to commit any of the acts which fall  within the

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

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

the object should be common to the persons, who compose the assembly,

that is to say, they should all be aware of it and concur in it.  A common

object may be formed by express agreement after mutual consultation, but

that is by no means necessary.  It may be formed at any stage by all or a few

members of the assembly and the other members may just join and adopt it.

Once formed, it need not continue to be the same.  It may be modified or

altered  or  abandoned  at  any  stage.   The  expression  ‘in  prosecution  of

common object’ as appearing in Section 149 have to be strictly construed as

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

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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.

8. ‘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

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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.

9. 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

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common object.  In order that the offence may fall within the first part, the

offence  must  be  connected  immediately  with  the  common object  of  the

unlawful assembly of which the accused was member.  Even if the offence

committed  is  not  in  direct  prosecution  of  the  common  object  of  the

assembly, it may yet fall under Section 141, if it can be held that the offence

was such as the members knew was likely to be committed and this is what

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

members of the assembly set out or desired to achieve is the object.  If the

object desired by all the members is the same, the knowledge that is the

object which is being pursued is shared by all the members and they are in

general  agreement  as  to  how  it  is  to  be  achieved  and  that  is  now  the

common object  of  the assembly.   An object  is  entertained in  the human

mind,  and  it  being  merely  a  mental  attitude,  no  direct  evidence  can  be

available  and,  like  intention,  has  generally  to  be  gathered  from the  act

which the person commits and the result therefrom.  Though no hard and

fast rule can be laid down under the circumstances from which the common

object can be culled out, it may reasonably be collected from the nature of

the assembly, arms it carries and behaviour at or before or after the scene of

incident.  The word ‘knew’ used in the second branch of the section implies

something more than a possibility and it cannot be made to bear the sense of

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‘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

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.)

10. In  State of U.P. v.  Dan Singh and Ors. (1997 (3) SCC 747) it  was

observed that it is not necessary for the prosecution to prove which of the

members of the unlawful assembly did which or what act. Reference was

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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”.

11. 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).  

12. Considering  the  evidence  on  record  the  High  Court’s  judgment

cannot be in any event deficient.  However, considering the role ascribed to

the  appellants  and  the  nature  of  injuries  caused  while  upholding  the

conviction we reduce the sentence to the period already undergone which is

stated to be of substantial part of the sentence imposed.  

13. The appeal is disposed of accordingly.  

……………………….…….J. (Dr. ARIJIT PASAYAT)

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…………………………..….J. (ASOK KUMAR GANGULY)

New Delhi, March 16, 2009   

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