Supreme Court of India
AKBAR SHEIKH & ORS.versusSTATE OF WEST BENGAL
- Citation
- 2009 INSC 685
- Decided
- 5 May 2009
- Disposal
- Disposed off
- Bench
- S B SINHA
Holding
Conviction under Section 149 IPC requires proof of the accused's presence at the time of the offence and that he shared the common object; mere citation or presence without such proof does not attract liability.
Summary
The case arose from a night-time mob attack on 16 May 1982 in Bujung, West Bengal, where several persons were killed and many were accused of being part of an unlawful assembly. The trial court convicted twenty persons under Sections 141, 142, 143 and 149 of the Indian Penal Code, despite some appellants not being named by witnesses or having any overt act attributed to them. On appeal, the Supreme Court examined whether mere presence or being cited as an accused sufficed to establish membership in an unlawful assembly and liability under Section 149. It held that conviction requires proof of the accused's presence at the time of the offence and that he shared the common object of the assembly; doubts about either element preclude constructive liability. Consequently, the Court allowed the appeals of Criminal Appeals Nos. 2040 and 2041, setting aside those convictions, while dismissing Criminal Appeals Nos. 2042 and 28.
Issues considered
- Whether an accused who did not commit any overt act and was not positively identified by witnesses can be held liable as a member of an unlawful assembly under Section 149 IPC.
- Whether the prosecution must prove the accused's presence and sharing of the common object of the assembly to attract constructive liability.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 141, s. 142, s. 143, s. 149
Subjects
Unlawful assemblyConstructive liabilityCommon objectSection 149 IPCPresenceOvert actEvidence evaluationReasonable doubtCriminal trial delay
Judgment
[2009] 7 S.C.R. 518
A AKBAR SHEIKH & ORS.
v.
STATE OF WEST BENGAL
Criminal Appeal No. 2040 of 2008
MAY 5, 2009
B
(S.B. SINHA AND R.M. LODHA, JJ.) ..
Penal Code, 1860:
Sections 141, 142, 143, 149- Unlawful assembly- Some
c of the accused not committing any overt act - Whether they
must also be held to be a part of the unlawful assembly, or
shared common object with the main accused - Held: It
depends on various factors principal amongst them being a
common object formed by the members thereof to commit an
offence specified in s. 141 - If such a common object is formed
D
constructive liability could be fastened on them.
In these appeals, the core question that arose for
consideration is as to whether some of the accused who
had not committed any overt act must be held to be a part
E of the unlawful assembly or shared the common- object
with the main accused.
Allowing Crl. Appeal Nos.2040 and 2041 of 2008 and
dismissing Crl. Appeal Nos.2042 of 2008 and 28 of 2009,
the Court
F
HELD: 1. Whether an assembly is unlawful one or
not, would depend on various factors, the principal
amongst them being a common object formed by the
members thereof to commit an offence specified in one
G
or the other clauses contained in Section 141 of the Indian
Penal Code. Constructive liability on a person on the
ground of being a member of unlawful assembly can be
fastened for an act of offence created by one or more
members of that assembly if they had formed a common
H 518
AKBAR SHEIKH & ORS. V. STATE OF WEST BENGAL 519
} object. The distinction between a common object and A
common intention is well-known. The prosecution in a
case of this nature was required to establish (i) whether
the appellants were present; and (ii) whether they shared
a common object. [Paras 14, 26] [529-G-H; 530-A, 538-D-E]
B
Shankaraya Naik & Ors. v. State of Karnataka 2008 (12)
SCALE 742 and Maranadu and Anr v State By Inspector of
Police, Tamil Nadu 2008 (12) SCALE 420 - held applicable.
'.'-
Munna Chanda v State of Assam (2006) 3 SCC 752;
Saladin & Others v. State of UttarPradesh AIR 1956 SC 181; c
Masalti v State of UP (1964) 8 SCR 133; Sherey and Others
v. State of U. P. 1991 Supp (2) SCC 437; Musa Khan and Others
v State of Maharashtra (1977) 1 SCC 733; Nagarjit Ahir v.
State of Bihar (2005) 10 SCC 369; Hori Lal and Another v
State of UP (2006) 13 SCC 79 and State of UP v Dan Singh
D
and Ors. (1997) 3 SCC 747 - referred to.
" 2. It is unfortunate that for one reason or the other
the trial was not completed for a period of twenty years.
Pendency of a criminal case for a long time, as is evident
from the fact noticed hereinbefore, is extremely hazardous. E
But, then omission on the part of a prosecution witness
to name and identify an accused in the dock cannot be
held to be wholly insignificant so as to record a judgment
-t of conviction. Presence of an accused while the offence
was committed is a sine qua non to find him guilty of being F
a member of unlawful assembly. If his presence is
doubted, question of finding him guilty does not arise.
[Para 30] [539-F-H; 540-A]
3. In a case of this nature, the rule of. prudence should
be applied. Something more than their being cited as an G
accused in a witness box would be necessary. The court
.. must have before it some materials to form an opinion
that they had shared a common object. It has not been
denied or disputed that whereas five brothers were
implicated as one brother had deposed against PW-9 and H
520 SUPREME COURT REPORTS [2009] 7 S.C.R.
A sons had also been implicated because a father had 1
deposed against them. Whereas PW-1 in his deposition
denied that the accused deposed in the case in which a
son was found to be guilty of murder of Doi Gobinda
Acharya (ex-Pradhan), PW-9 admitted that he committed
B the said murder in broad daylight. The defence that there
were other reasons for their false implication cannot also
be ruled out. There exists absence of any clinching
evidence as against the seven appellants in Criminal •
Appeal No. 2040 of 2008, particularly when three of them
c had not been named at all by PW-1 and four of them had
not been named by PW-9. This Court is not unmindful that
Akbar and Kanku have been named by both the witnesses
but even against them no overt act has been attributed.
[Paras 31, 32] [540-B-E]
D 4. Doubts legitimately arise as regards their presence
and/ or sharing of common object. While saying so, this
Court is not oblivious of the fact that the incident had
taken place at the dead of night. Enmity between two
groups in the village is admitted. But, one cannot also lose
E sight of the fact that a person should not suffer rigorous
imprisonment for life although he might have just been a
bystander without anything more. [Para 33] [540-F-G]
5. It is possible that PW-1 because of lapse of time
. has made cer;tain statements which go beyond the record,
F viz., holding of inquest before the FIR was recorded. The
number of accused persons in the First Information
Report might have also been put by the investigating
officer at a later point of time. The fact that the post mortem
examination had been held on 16.05.1982 itself goes a long
G way to establish the genesis of the occurrence. While
saying so, this Court is not unmindful of the fact that the
First Information Report was sent to the Magistrate after
24 hours. But then, in a case of this nature such a delay
may not, by itself, be held to be fatal. [Para 34] [540-G-H;
H 541-A-B]
AKBAR SHEIKH & ORS. V STATE OF WEST BENGAL 521 ·
/'
t 6. It cannot be said that Kab.ir was a juvenile on the A
date of occurrence. No such question had ever been
raised. Even where a similar question was raised by five
other accused, no such plea was raised even before the
•
High Court. Reliance inter alia has been placed on the
statement of Kabir under Section 313 of the Code of B
Criminal Procedure wherein he stated his age to be 33
years in 2001. Such a statement, is not decisive. Reliance
~ has also been placed on a voters' list. The said voters' list
had been prepared long after the incident occurred. The
same is again not decisive. In the facts and circumstance c
of this case and particularly having regard to the specific
role attributed to him, viz., he was one of the four persons
who had taken away Akramul with Buddik, Ruli and Sadek
and the said evidence brought on record by the
prosecution having been relied upon by both the courts
0
below, there is no reason to interfere therewith. [Paras 35,
36] [541-C-F]
7. Similarly, not only in the First Information Report
but also the prosecution witnesses, viz., PWs 1 and 9,
specifically attributed role of Kazem. Kazem took a specific. E
defence of alibi. It was for him to prove the same. The Trial
Judge, has for good reasons disbelieved the certificate
given by Dr. Dulal Chowdhury. If the appellant could not
establish his plea of alibi, on the face of the records, no
case has been made out to interfere with the judgment of F
Trial Court/ High Court. [Paras 36,38] [541-F-G; 542-E-F]
Case Law Reference
. (2006) 3 sec 752 referred to Para 15
AIR 1956 SC 181 referred to Para 16 G
(1964) 8 SCR 133 referred to Para 16
1991 Supp (2) SCC 437 referred to Para 18
(1977) 1 sec 733 referred to Para 19
H
522 SUPREME COURT REPORTS [2009] 7 S.C.R.
A (2oos) 1o sec 369 referred to Para 20.
(2006) 13 sec 79 referred to Para 21
2008 (12) SCALE 742 held applicable Para 22
2008 (12) SCALE 420 held applicable Para 23
B
(1997) 3 SCC 747 referred to Para 24
CRIMINAL APPELLATE JURISDUCTOIN : Criminal
Appeal No. 2040 of 2008
c From the Judgement and Order dated 16.05.2008 of the
Hon'ble High Court of Calcutta in C.R.A. No. 147 of 2002
WITH
Criminal Appeal No. 2041 of 2008
D Criminal Appeal No. 2042 of 2008
Criminal Appeal No. 28 of 2009
Pardip K. Ghosh, Rauf Rahim, Yadunandan Bansal,
Seshadri Sekhar Ray (A.C.), for the Appellant.
E
Avijit Bhattacharjee, Saumya Kundu, Subrata Biswas, for
the Respondent.
The Judgement of the Court was delivered by
S.B. SINHA, J.
F
1. Sajaedar Rahman (Complainant- PW-1) was a resident
of a small village Bujung situated within the Police Station of
Nalhati, in the district of Birbhum (West Bengal). He had a two-
storeyed house made of mud with a tin shed. It had a verandah
G on the ground floor as also on the upper floor. It consisted of
four rooms; two on the ground floor and two on the upper floor.
There was another house in the same compound. !twas thatched
with straw. It was also a two-storeyed one.
2. The deceased Akramul Sheikh and Samsul Haque were
H his sons. Ashraful (PW-9) and Nasir were his two other sons.
AKBAR SHEIKH & ORS. V. 523
STATE OF WEST BENGAL [S.B. SINHA, J.]
~ His wife is Latifa Bibi (PW-6) and Ahmuda Khatun (PW-7) is A
his daughter. Kazem (Accused No.. 8) is his nephew. Ali
Mohammed alias Kalu (PW-5) is his another brother.
3. On the fateful day, i.e., 16.05.1982 in the mid night, the
complainant was sleeping inside his room. On the verandah
~<
thereof his wife,-two sons Nasir and Saidul were sleeping. B
Ashraful and Kalu were sleeping in the first floor of another house.
In the 'Baithakkana' (living room) Akramul and his wife Nadira
were sleeping. Samsul Haque was sleeping in the courtyard. At
about 1 a.m. in the night. ttie complainant was woken up by his
sonAshraful and his nephew Kalu. He was informed that a large c
number of people had attacked his house. They were armed
with deadly weapons. A hurricane was hanging in the verandah ..
He also came out with a torch. He found that about 100 persons
were there. They started assaulting Samsul with lath!and ballam.
Kazem (Accused No. 8) directed that he should be beheaded D
..... whereupon Saifuddin cut his rieck with one stroke by a big knife
ordinarily used by a butcher for slaughtering goats. Samsul was
also assaulted by Buddik (Accused No. 14) with a knife. Samsul
Arefin assaulted him with lathi. Kamruzzaman assaulted him
with a ballam whereas Sadek (Accused No. 4) assaulted him E
with tangi. He identified all of them. The accused chased the
inmates of the house who were standing on the verandah. Out
- ...
of fear, they entered into the room and bolted it from inside.
Two-three bombs were hurled at the door. They exploded. An
attempt was made to break open the door with an axe F
whereupon a gap was created. Ashraful (PW-9) took out a sword
-l
from the room and pushed it through the gap towards the
accused persons. Then, Kazem asked Wahed to set fire on the
chals of the south-facing room. He also asked Maddin to do the
same thing. Fire was set in the house with thatched straw. They
G
took shelter in the vacant space outside the house. Akramul
ct and his wife also came out from the house which was set on
fire. Buddik assaulted Akramul on his back with an axe. On
' resistance offered by his wife and an appeal to the assailants
not to kill him, Sadek assaulted her on her forearm of right hand
H
524 SUPREME COURT REPORTS [2009) 7 S.C.R.
A with a shovel. Accused Buddik, Ruli, Sadek and Kabir forcibly
kidnapped Akramul to the house of the accused Arefin as
directed by Kazem. All the accused thereafter dispersed.
The complainant received an information thatAkramul was
killed near the pond. He went to the spot and found him dead
8 with his neck chopped and a long cut injury on his chest upto
abdomen.
D. N. Ghosh (PW-13), officer incharge of the Police Station
received an information about the incident on telephone. They
c came to the village in the early hours of the morning.
A First Information Report was lodged at about 6 a.m. In
the said First Information Report, about thirty persons were
~-
named. Chargesheet was issued as against twenty-nine
persons. The trial took a long time. Whereas the complainant
D ·was examined in 1992, his son Ashraful (PW-9) was examined
in 2001. The learned Sessions Judge convicted 20 persons.
Nine persons died during the pendency of the trial. Appeals were
preferred thereagainst. By reason of the impugned judgment,
the High Court, while affirming the judgment of conviction,
E remanded the case back to tne learned Trial· Judge for
determining the age of five appellants who advanced a plea
that they were 'children' on the date of commission of the offence.
4. In Criminal Appeal No. 2040 of 2008, there are seven
F. appellants. Criminal Appeal No. 2041 of 2008 was filed by
.... -
Akhtar Alam alias Aktarul Sheikh. Criminal Appeal No. 2042 of
2008 was filed by Kabir Sheikh with three others. The Special
Leave Petition of three petitioners was dismissed leaving Kabir
Sheikh as the only appellant. Criminal Appeal No. 28 of 2009
has been preferred by Kazem Sheikh alias Kamuruzzaman.
G
5. Mr. Pradip K. Ghosh, learned senior counsel appearing
on behalf of the appellants in Criminal Appeal Nos. 2040 and
2041 of 2008, would urge:
(a) Most of the accused persons having not taken active
H part and some of them having not been named at all
AKBAR SHEIKH & ORS. V. 525
STATE OF WEST BENGAL [S.S. SINHA, J.]
by the prosecution witnesses, the learned Sessions A
Judge as also the High Court committed a serious
error in passing the impugned judgments.
(b) Appellants had falsely been implicated due to long
. standing enmity as:
B
(i) Even according to prosecution, Nadira, sister
of Kazem, was married to the son of PW-1. He
committed suicide. The said marriage took
+ place without the consent of Kazem Sheikh.
Allegedly, a rein of terror .was unleashed. They
have to leave the village. 20 days prior thereto, c
they came back and got Nadira married with
the deceased Akramul.
(ii) Asgar and Kuddus had deposted against the
family of PW-1 in the matter of murder of one
D
Doi· Gobinda Acharya (ex-Pradhan). PW-9
i
accepted that he had committed his murder
and was convicted in the criminal case and
sentenced to life imprisonment. In that case
Kuddus had deposed and, thus, all his brothers
Sadek, Ruli, Kudrat and Kabir had been roped E
in. Similarly, as Asgar had deposed in the said
case, his three nephews, viz., Habal, Hosi and
Chosi, who were said to be minors at the time
... of alleged incident were also roped in .
(iii) It has furthermore come in evidence that father F
of Monir and Maddin, i.e,, Gastul had filed some
criminal cases against PW-1.
(iv) Five persons who were named in the First
Information Report, being children in the age
G
group of 12-15 years had not been spared.
(v) Gado and Kaku being son of Jabrish Sheikh
were roped in as Jabrish deposed against PW-
1 in a criminal case wherein he was convicted
for commission of murder of one Munsef Hazi. H
526 SUPREME COURT REPORTS [2009] 7 S.C.R.
A (c) The prosecution case must be held to have not been
proved as all eye-witnesses are interested witnesses.
Even Kalu (PW-5), nephew of PW-1 was deGlared
hostile. Moreover, out of four eye-witnesses named
in the First Information Report, only one had been
B examined and three· were not even examined as
witnesses for reasons best known to the State. Those
villagers tendered as witnesses by prosecution being
PWs 2, 3 and 4 were also declared hostile. Even
PW-11, i.e., husband of PW-7 did not name anybody.
c Nasir Sheikh, son of PW-1, who is said to have
identified the dead body of his brother Samsul at the
time of inquest was also not examined. Nazrul,
another son of PW-1, who was staying just outside
the compound, was also not examined.
D (d) The First Information Report was ante-dated and
ante-timed. According to PW-1, the inquest took
place before the First Information Report was lodged.
The inquest report bears the police case number
although by then the First Information Report was not
E lodged.
(e) The First Information Report having been sent to the
Magistrate after 24 hours, viz., on 17.05.1982, no
reliance should be placed thereupon.
F (t) In any event, most of the appellants having not taken •
any active part, the rule of prudence would demand
that in absence of any corroboration in material
particulars benefit of doubt should be according to
the appellants.
G 6. Mr. Rauf Rahim, learned counsel appearing on behalf
of the appellant in Criminal Appeal No. 2042 of 2008 would
a
urge that Kabir Sheikh (Accused No. 7) being minor on the
date of offence, also deserves the same treatment as accorded •
to other similarly situated, viz., remission of the case to the Trial
H Court for determination of his age.
AKBAR SHEIKH & ORS. V. 527
STATE OF WEST BENGAL [S.B. SINHA, J.]
In support of the said contention, reliance has been placed A
on the statement of the said appellant before the Trial Court
under Section 313 of the Code of Criminal Procedure as also a
voters' list.
7. Mr. Seshadri Sekhar Ray, learned Amicus Curiae
appearing on behalf of the appellant Kazem Sheikh in Criminal B
Appeal No. 28 of 2009 supplementing the submissions of Mr.
Ghosh urged that the learned Sessions Judge as also the High
Court failed to take into consideration the defence of the said
accused viz. he at the relevant time was physically handicapped.
There was no reason as to why the evidences of defence C
witnesses including the certificate of a doctor to that effect should
not be believed.
8. Mr. Avijit Bhattacharjee, learned counsel appearing on
behalf of the State, on the other hand, supported the impugned
0
judgment contending that the fact that more than thirty persons
had attacked the deceased and the prosecution witnesses with
deadly weapons and they had not only murdered Samsul Haque
but also took away Akramul Sheikh and murdered him near the
pond clearly goes to show that each one of them had the
requisite common object. E
It was furthermore contended that PW-1 having identified
all the accused in the court, there is no reason as to why his
evidence should not be relied upon.
9. Before adverting to the rival contentions raised before F
us by the learned counsel for the parties, we may notice the
following salient features: ··
PW-1 Sajedar Rahman is the informant/complainant. PW-·
9 Ashraful Sheikh is the son of PW-1. Like PW-1, he was also G
an eye-witness.
-1, PW-6 Latifa Bibi is.the wife of PW-1 but as at the time of
her deposition, she having been found to have become senile,
neither theJearned Trial Judge nor the High Court has placed
any reliance on her evidence. PW-7 Ahmuda Khatun is the H
528 SUPREME COURT REPORTS [2009] 7 S.C.R.
~
A daughter of PW-1. On the date of incident, she had been
residing in her matrimonial home and only upon receipt of the
information, she came to her parents' place and came to know
about the incident from her father. Her evidence is therefore a
,,_ I
hearsay one and not considerecj by the High Court at all.
B Other witnesses, viz., PWs. 2 to 4 and PW-5 were declared
·hostile. We are, therefore, left with the evidences of PW-1 and
PW-9only..
' '
· · · ·1 o. Whe!reas according to PW-1, Akbar Sheikh (Accused
c No. 5) who had been named but had not taken any active part in
the incident, PW-9 merely saw him as a member of the mob.
)-
Asgar Sheikh (Accused No. 1), Kuddus Sheikh .(Accused No.
3) and Kudrat Sheikh (Accused No. 6) had not been named by
PW-1 but they had been named by PW-9. Whereas Gado
Sheikh (Accused No. 11) was named by PW-1 as a person
D
who had not taken active part, he had not been named by PW- '
9. Kanku Sheikh (Accused No. 13) had been named both by
PW-1 and PW-9, although, according to PW - 1, he also did
not take any active part. Monir Sheikh (Accused No. 15) was
' ..
named by PW-1 without taking any active part. PW-9 did not
E name him at all.
11. Akhtar (Accused No. 9) appellant in Criminal Appeal
No. 2041 had not been named at all either by PW-1 or PW-9.
12. Allegation against Kabir Sheikh (Accused No.7)
F appellant in Criminal Appeal No. 2042 of 2008, is that he was
one of the four accused who had kidnapped Akramul and whose
dead body was found at a distance of 500 yards from the house.
13. We have noticed hereinbefore that the role of Kazem
Sheikh (Accused No. 8), according to PW-1, was positive. He
G
not only ordered that Samsul Haque should be beheaded,
pursuant whereto Saifuddin cut his neck with one stroke; he
t=
furthermore,. at the second stage of the occurrence, directed
Wahed and Maddin to set fire to the thatched house which was
complied with. The overt act of kidnapping Akramul has been
H
· AKBAR SHEIKH & ORS. V. 529
STATE OF WEST BENGAL [S.B. SINHA, J.]
attributed to Buddik, Ruli, Sadek and Kabir. Buddik had also A
been attributed with the act of assault on Akramul on his back
with the axe. Sadek injured Latifa (PW-6) on her forearm.
The summary of the evidences of PW-1 and PW-9,
therefore, demonstrates that whereas Akbar, Gado, Monir had
been named by PW-1, they had not been named by PW;9. Only B
Kanku has been named as a miscreant person in the assembly
by both PW-1 and PW-9.
The core question which arises for consideration is as to
whether some· of the appellants who had not committed any c
overt act must be held to be a part of the unlawful assembly or
shared the common object with the main accused.
Chapter VIII of the Indian Penal Code provides for the
offenc~s against the public tranquility. Section 141 defines
'Unlawful Assembly' to be an assembly of five or more persons. D
They must have a common object inter alia to commit any
mischief or criminal trespass or other offence.
Section 142 of the Indian Penal Code postulates that
whoever, being aware of facts which render any assembly an
unlawful one, intentionally joins the same would be a member E
thereof.
Section 143 of the Indian Penal Code provides for
punishment of being a member of unlawful assembly. Section
149 provides for constructive liability on every person of an F
unlawful assembly if an offence is committed by any member
thereof in prosecution of the common object of that assembly
or such of the members of that assembly knew to be likely to be
committed in prosecution of that object.
14. Whether an assembly is unlawful one or not, thus, would G
depend on various factors, the principal amongst them being a
common object formed by the members thereof to commit an
offence specified in one or the other clauses contained in
Section 141 of the Indian Penal Code. Constructive liability on
a person on the ground of being a member of unlawful assembly H
530 SUPREME COURT REPORTS [2009] 7 S.C.R.
A can be fa$tened for an act of offence created by one or more
members of that assembly if they had formed a common object.
The distinction between a common object and common intention
is well-known.
15. In Munna Chanda v. State of Assam [(2006) 3 SCC
8 752], this Court held as under: -
"10. The concept of common object, it is well known, is
different from common intention. It is true that so far as
common object is concerned no prior concert is required.
c Common object can be formed on the spur of the moment.
Course of conduct adopted by the members of the
assembly, however, is a relevant factor. At what point of
time the common object of the unlawful assembly was
formed would depend upon the .facts and circumstances
of each case.
D
11. Section 149 IPC creates a specific and distinct offence.
There are two essential ingredients thereof:
(1) commission of an offence by any member of an unlawful
assembly, and
E
(ii) such offence must have been committed in prosecution
of the common object of th~t assembly or must be such as
the members of that assembly knew to be likely to be
committed. .. .
F 12. It is, thus, essential to prove that the person sought to
be charged with an offence with the aid of Section 149
was a member of the unlawful assembly at the time the
offence was committed.
13. The appellants herein were not armed with weapons.
G
They except Bhuttu were not parties to all the three stages
of the dispute. At the third stage of the quarrel, they wanted
to teach the deceased and others a lesson. For picking
up quarrel with Bhuttu, they might have become agitated
and asked for apologies from Moti. Admittedly, it was so
H
AKBAR SHEIKH & ORS. V. 531
STATE OF WEST BENGAL [S.B. SINHA, J.]
done at the instance of Nirmal, Moti was assaulted by A
Bhuttu at the instance of Ratan. However, it cannot be
said that they had common object of intentional killing of
"• the deceased. Moti, however, while being assaulted could
free himself from the grip of the appellants and fled from
the scene. The deceased was being chased not only by B
the appellants herein but by many others. He was found
dead the next morning. There is, however, nothing to show
as to what role the appellants either conjointly or separately
played. It is also not known as to whether if one or all of the
appellants were present, when the last blow was given. c
Who are those who had a$saulted the deceased is also
not known. At whose hands he received injuries is again
a mystery. Neither Section 34 nor Section 149 of the Penal
Code is, therefore, attracted. (See Dharam Pal v. State of
Haryana and Shambhu Kuer v. State of Bihar)"
D
16. The question came up for consideration before this
Court in Ba Jadin & Others v. State of Uttar Pradesh [Al R 1956
SC 181] wherein B.P. Sinha, J., as the learned Chief Justice
then was, opined that with a view to invoke the provisions of
Section 149 of the Indian Penal Code, "it was necessary E
therefore for the prosecution to lead evidence pointing to the
conclusio.n that all the appellants before us had done or been
committing some overt act in prosecution of the common object
~ of the unlawful assembly". ltwas furthermore stated:
"... The evidence as recorded is in general terms to the F
effect that all these persons and many more were the
miscreants and were armed with deadly weapons, like
·guns, spears, pharsa.s, axes, lathis, etc. This kind of
omnibus evidence naturally. has to be very closely
scrutinised in order to eliminate all chances of false or G
mistaken implication. That feelings were running high on
both sides is beyond question. That the six male members
who were done to death that morning found themselves
trapped in the house of Mangat Singh has been found by
the courts below on good evidence. We have therefore to H
532 SUPREME COURT REPORTS (2009] 7 S.C.R.
A examine the case of each individual accused to satisfy
ourselves that mere spectators who had not joined the
assembly and who were unaware of its motive had not
been branded as members of the unlawful assembly which ,,
•
committed the dastardly crimes that morning. It has been
8 found that the common object of the unlawful assembly
was not only to kill the male members of the refugee
families but also to destroy all evidence of those crimes.
Thus even those who did something in connection with the ,
carrying of the dead bodies or disposal of them by burning ·
c them as aforesaid must be taken to have been actuated
by the common objective."
The aforementioned observation was, however, not
accepted later by this Court as an absolute proposition 9f law
and was held to be limited to the peculiar fact of the case in
D Masalti v. State of U.P. [(1964) 8 SCR 133] in the following terms:
"... What has to be proved against a person who is alleged ...
to be a member of an unlawful assembly is that he was
one of the persons constituting the assembly and he
entertained long with the other members of the assembly
the common object as defined by Section 141 IPC Section
142 provides that however, being aware of facts which
render any assembly an unlawful assembly intentionally
joins that assembly, or continue in it, is said to be a member ·..
F of an unlawful assembly. In other words, an assembly of
five or more persons actuated by, and entertaining one or
more of the common object specified by the five clauses
of Section 141, is an unlawful assembly. The crucial
question to determine in such a case is whether the
G assembly consisted of five or more persons and whether
the said persons entertained one or more of the common
objects as specified by Section 141. While determining
this question, it becomes relevant to consider whether the
assembly consisted of some persons who were merely
H passive witnesses and had joined the assembly as a
· AKBAR SHEIKH & ORS. V. 533
STATE OF WEST BENGAL [S.B. SINHA, J.)
.
matter of idle curiosity without intending to entertain fhe A
common object of the ass~mbly ... " .
17. We may, however, notice that whereas th~ principle of·
law laid down in Masa/ti (supra) is beyond any doubt or dispute,
its application in the later cases has not been strictly adhered
to. This Court, as would appear from the dJscussions made B ·
hereinafter, in some of its decisions had proceeded to
determine the issue in the factual. matrix obtaining therein
although some observations of general nature had been made.
18. In Sherey and Others v. State ofU.P[1991 Supp (2)- c
sec 437] involved a case where there was a dispute between
Hindus and Muslims of a village ·regarding a grove. Whereas
the Hindus were claiming that it was a grove, the Muslims were
clai.ming it to be a graveyard. A large number of Muslims, about
25 in number, came out with lethal weapons and killed three
0
persons and injured others. Before this Court an argument was
advanced that the appellants against whom no overt act was
attributed but were part of the unlawful assembly should be held
to be not guilty was accepted, stating:
"... Therefore, it is difficult to accept the prosecution case E
that the other appellants were·--members of the unlawful
assembly with the object of committing the offences with
which they are charged. We feel it is highly unsafe to apply
Section 149 IPC and make everyone of them constructively
liable. But so far as the above nine accused are concerned F
the prosecution version is consistent namely that they were
armed with lethal weapons like swords ·and axes and
attacked the deceased and others.· This strong
circumstance against them establishes their presence as
well as their membership of the unlawful assembly. The G
learned counsel appearing for the State vehemently
contended that the fact that the Muslims as a body came
to the scene of occurrence would show that they were
members of an unlawful assembly with the common object
of committing various offences including that of murder. H
534 SUPREME COURT REPORTS [2009] 7 S.C.R.
J
A Therefore all of them should be made constructively liable.
-
But when there is a general allegation against a large
number of persons the Court naturally hesitates to convict
all of them on such vague evidence. Therefore we have to
find some reasonable circumstance which lends
B assurance. From that point of view it is safe only to convict
the abovementioned nine accused whose presence is
not only consistently mentioned from the stage of FIR but
also to whom overt acts are attributed ... "
19. Similarly, in Musa Khan and Others v. State of
c Maharashtra [(1977) 1 SCC 733], it was opined:
" ... It is well settled that a mere innocent presence in an
assembly of persons, as for example a bystander, does
not make the accused a member of an unlawful assembly,
D unless it is shown by direct or circumstantial evidence that
_.;
the accused shared the common object of the assembly.
'
Thus a court is not entitled to presume that any and every
person who is proved to have been present near a riotous
mob at any time or to have joined or left it at any stage
E during its activities is in law guilty of every act committed
by it from the beginning to the end, or that each member
of such a crowd must from the beginning have anticipated
and contemplated the nature of the illegal activities in which
the assembly would subsequently indulge. In other words,
. '
it must be proved in each case that the person concerned
F
was not only a member of the unlawful assembly at some
stage, but at all the crucial stages and shared the common
object of the assembly at all these stages ... "
.
It was opined therein that as evidence was wholly lacking
G that all of them had taken part at all stages of the commission of
offence, they.were held to be not guilty of the charges levelled
against them.
20. Yet again in Nagarjit Ahir v. State of Bihar [(2005) 10
sec 369], it was opined:
H
AKBAR SHEIKH & ORS. V. 535
STATE OF WEST BENGAL [S.S. SINHA, J.]
" ... Moreover, in such situations though many people may A
have seen the occurrence, it may not be possible for the
prosecution to examine each one of them. In fact, there is
evidence on record to suggest that when the occurrence
• took place, people started running helter-skelter. In such a
situation it would be indeed difficult to find out the other s
persons who had witnessed the occur~ence ... "
It was furthermore observed:
" ... In such a case, it may be safe to convict only those
persons against whom overt act is alleged with the aid of c
Section 149 IPC, lest some innocent spectators may get
involved. This is only a rule of caution and not a rule of
law: .. "
21. Almost a similar view has been taken in Hori Lal and
Another v State of U. P. [(2006) 13 SCC 79] wherein this Court D
noticed both Baladin (supra) and lvJasa/ti (supra) as also other
;.. decisions to opine:
"23. Common object would mean the purpose or design
shared by all the members of such assembly. It may be E
formed at any stage.
24. Whether in a given case the accused persons shared
common object or not, must be ascertained from the acts
and conduct of the accused persons. The surrounding
circumstances are also relevant and may be taken into F
consideration in arriving at a conclusion in this behalf.
25. It is in two parts. The first part would be attracted when
the offence is committed in furtherance of the common
object. The offence, even if is not committed in direct
prosecution of the common object of the assembly, Section G
149 IPC may still be attracted."
What was, therefore, emphasized was that not only the
acts but also the conduct and surrounding circumstances would
be the guiding factors.
H
536 SUPREME COURT REPORTS [2009] 7 S.C.R.
A 22. In Shankaraya Naik & Ors. v. State ofKamataka [2008
(12) SCALE 742], this Court held: 1
"5 ... It is clear from the record that the accused had come
to the place of incident duly armed and had immediately
proceeded with the attack on the opposite party and had
B caused serious injuries to the deceased and to as many
as eight witnesses. It is also clear from the facts preceding
the attack that there was great animosity between the
parties and it must, therefore, be inferred that when the
accused had come armed with lethal weapons, the chance
c that somebody might be killed was a real possibility."
23. In Maranadu and Anr. v. State By Inspector of Police,
Tamil Nadu [2008 (12) SCALE 420], this Court stated the law,
thus:
D "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
E 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 ~athered from the
course of conduct adopted by the members of the
F assembly. For determination of the comm.oo 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
G
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
H
AKBAR SHEIKH & ORS. V. 537
STATE OF WEST BENGAL [S.B. SINHA, ~.]
object, the same must be translated into action or be A
successful. Under the Explanation to Section 141, an
assembly which was not uoJawful 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 B
· atthe 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 inciqent at the spot co instanti." c
24. We may, however, notice that therein this Court had
taken note of an earlier decision of this Court in State of UP. v.
Dan Singh and Ors. [(1997) 3 sec 747] wherein it was held:
"34. Mr Lalitis right in submitting that the witnesses would
0
be revengeful as a large-scale violence had taken place .
where the party, to which the eyewitnesses belonged, had
suffered and it is, therefore, necessary to fix the identity
and participation of each accused with reasonable
certainty. Dealing with a similar case of riot where a'large E
number of assailants who were members of an unlawful
assembly committed an offence of murder in pursuance
of a common object, the manner in which the evidence
should be appreciated was adverted to by this Court in
Masalti case at p. 210 as follows:
F
"Then it is urged that the evidence given by the witnesses
conforms to the same uniform pattern and since no specific
· part is assigned to all the assailants, that evidence should
not have been accepted. This criticism again is not well-
founded. Where a crowd of assailants who are members G
of an unlawful assembly proceeds to commit an offence of
murder in pursuance of the common object of the unlawful
assembly, it is often not possible forwitnesses to describe
accurately the part played by each one of the assailants.
Besides, if a large crowd of persons armed with weapons H
538 SUPREME COURT REPORTS [2009] 7 S.C.R.
A assaults the intended victims, it may not be necessary 1
that all of them have to take part in the actual assault. In the
present case, for instance, several weapons were carried
by different members of the unlawful assembly, but it
appears that the guns were used and that was enough to
B kill 5 persons. In such a case, it would be unreasonable to
contend that because the other weapons carried by the
members of the unlawful assembly were not used, the
story in regard to the said weapons itself should be •
rejected. Appreciation of evidence in such a complex case
c is no doubt a difficulttask; but criminal courts have to do
their best in dealing with such cases and it is their duty to
sift the evidence carefully and decide which part of it is
true and which is hot."
25. The decisions of this Court in Shankaraya Naik (supra)
D and Maranadu (supra), therefore, do not militate against the
proposition of law in regard to appreciation of evidence, which ~
we have to apply herein.
26. The pr:osecution in a case of this nature was required
to establish (i) whether the appellants were present; and (ii)
E whether they shared a common object.
The mob indisputably raided the house of the first
informant. Most of the members thereof were armed with deadly .,,
weapons. They not only committed gruesome acts but also when
F their attempt to assault others was frustrated as the prosecution
witnesses bolted themselves in a room, set the two portions of
the house on fire, as a result whereof they had to come out. It
had not been denied or disputed that they were inimically
disposed of towards the family.
G We have been taken through the evidences of PWs 1 and
9 almost in their entirety. We did not find even a suggestion
having been thrown at them that their story that the sister of the
appellant Kazem was married twice to two sons of PW-1 as a
result whereof Kazem bore a grudge against them is incorrect.
H
"
r
AKBAR SHEIKH & 'ORS. V 539
_STATE OF WEST BENGAL [S.B. SINHA., J.]
27. We also do not find any ri1aterial'on-record to disbelieve A
that part of the evidences of PWs 1 and 9 that keeping in view
the rein of terror unleashed by Kazem they had'to.Jeave the village
and they came back only after 20 days prior to the occurrence.
In the meanwhile, the sister_Qf Kazem· having com~ to their
residence, she was married to Akramul. · ., ._ . 8
. - .
28. Whereas this part of the _prosecution story, in our
considered opinion, has rightly been relied upC>_n by the learned
Sessions Judge as also the High Court in arriving at their
conclusion, the defence side of the story should also not be
ignored. While saying so, we are not oblivious of the dicta that C
enmity is a two-edged weapon. Whereas it is possible as was
the case in Masalti;J,supra) that the accused-had formed a
common object, the chances of some 'of the accused having
. been falsely implicated for extraneous reasons also cannot be
rul~out. D
29. The discrepancies in the statements of PWs 1 and 9
with regard to the presence of some of the appellants have been
noticed by us hereinbefore. Akhtar, appellant in Criminal Appeal
No. 2041 of 2008 had not been named by any of those
I
witnesses. On what basis, a jud1:1ment of conviction could be E
I
recorded against him is· beyond ourcomprehension. Similarly,
three others had not been named by PW-1 at all. In _the court, _-
PW-1 identified 19 persons. Three were abse_nt. He, therefore,
did not identify the others. According to him, he did not remember
the names of other persons. F
30. Mr. Bhattacharjee would contend that whereas PW-1
was examined ten years after the occurrE)n.ce, ·PW-9 had been
examined C!,ft_er twenty years after the occurrence. This may be
so. It is unfortunate that for one reason or the other the trial was G
not completed for a period of twenty years. Pendency of a
criminal case for a long time, as is evident from the fact noticed
hereinbefore, is extremely hazardous. But, then omission on the
part of a prosecution witness to name and identify an accused
in the dock cannot be held to be wholly insignificant so as to H
540 SUPREME COURT REPORTS (2009] 7 S.C.R.
A record a judgment of conviction.- Presence of an accused while r
the offence was committed is a sine qua non to find him guirty of
being a member of unlawful assembly. If his pres~nce is
doubted, question of finding him guilty does not arise.
31. In a case of this nature, the rule of prudence should be
B applied. Something more than their being cited as an accused
in a witness box would be necessary. The court must have before
it some materials to form an opinion that they had shared a
•
common object. It has not been denied or disputed that whereas
five brothers were implicated as one brother had deposed
c against PW-9 and sons had also been implicated because a
father had deposed against them. Whereas PW-1 in his
deposition denied that the accused deposed in the case in
which a son was_found to be guilty of murder of Doi Gobinda
.Acharya (ex-Pradhan), PW-9 admitted that he committed the
D said murder in broad daylight. The defence that there were other
reasons for their false implication cannot also be ruled out. In
our opinion, there exists absence of any clinching evidence as
against the seven appellants in Criminal Appeal No. 2040 of
2008, particularly when three. of them had not been named at all
E by PW-1 and four of them had not been named by PW-9.
32. We are not unmindful thatAkbar and Kanku have been
named by both the witnesses but even against them no overt
act has been attributed. ..
F 33. We, therefore~ are of the opinion that doubts
legitimately arise as regards their presence and/ or sharing of
common object. While saying so, we are not oblivious of the
fact that the inCident had taken place at the dead oLnight. Enmity
between two groups in the village is admitted. But, we cannot
also lose sight of the fact that a person should not suffer rigorous
G
imprisonment for life although he might have just been a
bystander without anything more. •
34. Submission of Mr. Ghosh that the First Information
Report is ante-timed cannot be accepted. It is possible that PW-
H 1 because of lapse of time has made certain statements which
AKBAR SHEIKH & ORS. V. 541
STATE OF WEST BENGAL [S.B. SINHA, J.]
go beyond the record, viz., holding of inquest before the FIR A
was recorded. The number of accused persons in the First
Information Report might have also been put by the investigating·
officer at a later point of time. The fact that the post mortem
examination had been held on 16.05.1982 itself goes a long
way to establish the genesis of the occurrence. While saying B
so, we are not unmindful of the fact that the First Information
Report was sent to !tieM<!gistrate after 24 hours. But then, in a
case of this nature such a delay may not, by itself, be held to be
• fata( ··
35. We are also unable to accept the submission of Mr: C
Rauf Rahim that Kabir was a juvenile on the date of occurrence..
No such question had ever been raised. Even where a similar
question was raised by five other accused, viz., Jahangir,
. Motahar, Masi, Chosi and Habal, no such plea was raised even
before the High Court. Reliance inter alia has been placed on D
the statement of Kabir under Section 313 of the Code of Criminal
Procedure wherein he stated his age to be 33 years in 2001. ~'.·
Such a statement, in our opinion, is not decisive. Reliance has
also been placed on a voters' list. The said voters' list had been
prepared long after the incident occurred. The same is again E
not decisive.
· 36. In the facts and circumstance of this case and
particularly having regard to the specific role attributed to him,
viz., he was one of the four persons who had taken away Akramul
with Buddik, Ruli and Sadek and the said evidence brought9n F
_ record by the prosecution having been re~ed upon by both the
courts below, we do not see ;;my reason to interfere therewith.
Similarly, not only in the First Information Report but also
the prosecution witnesses, viz., PWs 1 and 9, specifically G
attributed role of Kazem. Kazem took a specific defence of alibi.
It was for him to prove the same .
•
37. The Trial Court noticed that the certificate issued by
Dr. Dula I Chowdhury was issued by him in his private capacity
as Medical Practitioner. The Trial Court noticed: H
542 SUPREME COURT REPORTS [2009] 7 S.C.R.
A "In cross-examination it transpires that he issued the
certificate in the .year 1991 but he cannot recollect the
time and date when Kazem Ali was admitted at Suri
· Hospital and also cannot say also under what condition
he was discharged from Suri Hospital without perusal of
the records."
The Trial Court held:
"Ext. B and C are the certificates dated 7.5.91 and the
discharge certificate issued by Dr. Dula I Chowdhury was
c issued on 7.5.91 and Ext. C was issued on 5.12.81. It is
crystal clear from Ext. C that Kazem Ali was discharged
on 5.12.81 and on the reverse side of this certificate it is
also crystal clear that pt. can resume his usual duty. This
D
shows that on and from 05.12.81 the pt. i.e. Kazem Ali
was fit to resume his normal duty. That Kazem Ali was not --
fit on the date of incident i.e. on 16.05.82 does not arise
at all. The defence lawyer .has failed to establish the fact
that Kazem was under the treatment of Dr. Chowdhury on
the date of occurrence i.e. 16.05.82 does not stand at all.
Therefore, the contention of the defence is that at the time
E of the said occurrence, accused Kazem was under the
treatment of Dr. Dule Chowdhury has not been
established."·
38. The learned Trial Ju~gE;!, jQ_Qur opinion, has for good
F reasons disbelieved the certificate given by Dr. Dulal Chowdhury.
If the appellant could not establish his plea of alibi, in our opinion,
on the face of the records, .
no case has been .
made out.
.to_ .
~
· interfere with the judgment of Trial Court/ High Court.
39. 1.n the result, Criminal Appeal Nos. 2040 and 2041 of .
G · 2008 are allowed and Criminal Appeal Nos_. 2042 of 2008 and
28 of 2009 are dismissed.
G.N. Appeals disposed of.
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