Maranadu & Anr vs State By Inspector Of Police, T.N

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

3 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.

4 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

5 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

6 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."

7 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

8 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).

9

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

10 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

11 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

12 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

13 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

14 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

15 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

16 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

17 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.

18 (Dr. ARIJIT PASAYAT)

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

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

New Delhi, September 15, 2008

19