2004(1) Crimes 412 (SC)
Supreme Court of India
(From Kerala High Court)
Doraiswamy Raju and Arijit Pasayat, JJ.
Bhargavan & Ors. —Appellants
versus
State of Kerala —Respondent
Criminal Appeal Nos. 530-531 of 2003
Decided on 17-11-2003

Important Point
Evidence of witness cannot be rejected only on ground that he is a relation witness of victim but court has to adopt a careful approach to find out that it is cogent and credible.

Headnote:(i) Indian Penal Code, 1860—Section 149—Common object—Mere presence in unlawful assembly cannot render a person liable unless there was a common object and he is actuated by that—Object has to be common to persons who compose the assembly—Distinction between ‘‘common object’’ and ‘‘common intention’’—Common object is to be ascertained from acts and language of members composing it and surrounding circumstances—Section 149 IPC consisted of two parts—Where offence was committed to accomplish the common object and that offence was such as members knew was likely to be committed—No overt role was ascribed to a specific accused would not mean non-application of Section 149 IPC.

       Held : 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. (Para 13)

       ‘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 members at or near the scene of the incident. (Para 14)

       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 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. (Para 15)

       (ii) Indian Penal Code, 1860—Section 302/149—Conviction by Courts below—Interested witnesses—Relationship is not a factor to attract credibility of a witness—Court has to adopt a careful approach to find out whether evidence is cogent and credible.

       Held : 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. (Para 7)

       (iii) Indian Penal Code, 1860—Section 302/149—Conviction for offence—Non-disclosure of names of assailants to doctor—Is of no consequence. (Para 20)

       (iv) Indian Penal Code, 1860—Section 302/149—Deceased was assaulted by accused armed with iron rod, motor cycle chain etc.—Brother of deceased was eye witness and other three witnesses arrived on spot soon after incident and deceased stated to them that appellants had assaulted him—Evidence was cogent and credible—Plea of alibi by appellant No. 1 found not proved—Conviction called for no interference. (Paras 22 to 24)

       Result : Appeals dismissed.