BHARAT SONI ETC.versusSTATE OF CHHATISGARH

                    [2012] 13 S.C.R. 541


                    BHARAT SONI ETC.                             A
                              v.
                STATE OF CHHATISGARH
      (Criminal Appeal Nos. 1262-1264 of 2010 etc.)
                   NOVEMBER 22, 2012
                                                                 B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

    Penal Code, 1860:

     ss. 147, 148 and 3021149 - Murder by seven accused -        c
Conviction by courts below - Held: Evidence of one eye-
witness was self-contradictory and also at variance with the
evidence of the other eye-witness - No convincing and
consistent evidence regarding individual overt act - Recovery
of weapons and fleeing of the accused from the place of          0
occurrence would not be determinative of the liability of the
accused uls. 3021149 - It cannot be infe"ed that the accused
had common object to murder - Thus, accused-appellants
acquitted of offences punishable uls. 3021149 - However,
conviction uls. 147 and 148 maintained.
                                                                 E
     s. 149 - Common object - Determination of - Held: It is a
question of fact - Has to be determined keeping in view nature
of assembly, arms carried, behaviour of the members etc.

     Words and Phrases - 'Common Object' - Meaning of, in        F
the context of s. 149 /PC.

     The appellants (4 accused) and 3 other accused
allegedly caused death of one person. The prosecution
case was that two of the accused picked up quarrel with
the deceased, PW-4 and PW 13, at which the deceased              G
and PW 4 slapped one of the accused. Both the accused
went away, threatening them. After an hour they came
back with other accused and assaulted the deceased and
his companions. The deceased succumbed to the
                             541                                 H
    542      SUPREME COURT REPORTS            [2012] 13 S.C.R.


A injuries. The trial court convicted all the accused u/ss.
  147, 148 and 302/149 IPC. The High Court affirmed the
  judgment of the trial court.

          Partly allowing the appeals, the Court
B     HELD: 1. Determination of the common object of an
  unlawful assembly or the determination of the question
  whether a member of the unlawful assembly knew that
  the offence that was committed was likely to be
  committed is essentially a question of fact that has to be
C made 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 and a host of similar or
  connected facts and circumstances that cannot be
  entrapped by any attempt at an exhaustive enumeration.
D [Para 15) [549-H; 550-A-B]
        Dani Singh vs. State of Bihar (2004) 13 SCC; Ku/dip
    Yadav vs. State of Bihar (2011) 5 SCC 324: 2011 (5) SCR
    186; Rajendra Shantaram Todankar vs. State of Maharashtra
E (2003) 2 sec 257: 2003 (1) SCR 10 - relied on.

       2.1 The versions of the two eye-witnesses i.e. PW 4
  and PW 13 in so far as the involvement of the accused-
  appellants is concerned, are at variance with each other.
  Besides the testimony of PW-4 is self-contradictory.
F Insofar as accused 'R' is concerned, he has hardly been
  implicated and the prosecution evidence, properly read,
  would seem to show that he was a mere passive
  onlooker. Also, PW-13 is wholly silent with regard to the
  involvement of any of the four accused-appellants before
G this Court. [Para 22) [553-B-C)
       2.2 If the oral evidence of PW-4 and PW-13 is to be
  excluded, the recovery of the alleged weapons at the
  instance of the accused, and the incident of the accused
H fleeing away from the place of occurrence, will not be
  BHARAT SONI ETC. v. STATE OF CHHATISGARH               543

conclusive and determinative of the liability of the            A
accused for the substantive offence under Section 302
IPC with the aid of Section 149 IPC. [Para 22] [553-D-E]

    2.3 There is no convincing and consistent evidence
of any individual overt act on the part of any of the           8
accused-appellants to implicate any or all of them for
causing the fatal injuries on the body of the deceased.
In view of the prosecution evidence, it cannot be
reasonably inferred that the accused- appellants, as
members of an unlawful assembly, had any common
object to commit the offence of murder of the deceased.         C
Neither, the accused can be attributed with the
knowledge that the offence of murder was likely to be
caused or to occur in prosecution of the common object.
[Para 22] [553-E-G]
                                                                D
     2.4 At best what can be held is that the common
object of the assembly of the accused was to teach P\'V-
4 and the deceased a lesson on account of the previous
altercation that had taken place in the course of which
PW-4 and the deceased had slapped one of the accused.           E
The accused persons, including the appellants, as
members of the unlawful assembly, had, in fact, indulged
in the use of force in prosecution of the said common
object. The same would, however, render the accused
appellants liable only for the offence under Section 147
                                                                F
and 148 IPC for which they had already been convicted
by the trial court as also by the High Court. [Para 22] [553-
G-H; 554-A-B]
    2.5 Conviction of the appellants under Section 147
and 148 IPC is maintained. They are acquitted of the            G
offences punishable under Section 302 read with Section
149 IPC. [Para 23] [554-C]
                    Case Law Reference:
    (2004) 13 sec            Relied on            Para 16       H
    544      SUPREME COURT REPORTS               [2012] 13 S.C.R.

A         2011 (5) SCR 186         Relied on             Para 17
          2003 (1) SCR 10          Relied on             Para 18
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1262-1264 of 2012.
B
        From the Judgment & Order dated 30.11.2009 of the High
    Court of Chhatisgarh, at Bilaspur in Criminal Appeals No. 574,
    614 & 577 of 2003.
                                   WITH
c Criminal Appeal No. 1873 of 2011.
          Wills Mathews, R.P.S. Sirohi, Robin Raju, Rajinder Singh,
    Shree Pal Singh, Vikas Upadhyay, B.S. Banthia, Arjun Garg
    for the Appellant.
D
          Apoorv Kurup, Aniruddha P. Mayee for the Respondent.
          The Judgment of the Court was delivered by
      RANJAN GOGOi, J. 1. Four of the seven accused
E persons whose conviction under Section 302 IPC and the
  sentence of life imprisonment has been affirmed by the High
  Court of Chhattisgarh have filed the instant appeals challenging
  Judgment and Order dated 30th November, 2009 of the High
  Court. We have heard the learned counsels for the appellants
F as well as the learned counsel for the State.

       2. The short case of the prosecution is that on 05.12.2000
  at about 8.55 p.m., Santosh {PW-4} lodged a FIR in the
  Ambikapur Police Station stating that a short while ago i.e. at
G about 8.40 p.m. while he was standing in front of his house
  alongwith deceased Vinod and Amit {PW-13), accused Gopi
  Ghasia(A-6) and Ranu(A-5) had come there in a state of
  intoxication. According to the first informant, an altercation took
  place in the course of which he as well as Vinod had slapped
  accused Gopi. Enraged, the accused persons went away
H threatening to kill them. According to the first informant, after
  BHARAT SONI ETC. v. STATE OF CHHATISGARH                    545
             [RANJAN GOGOi, J.]
about an hour, the four accused appellants. i.e. Bharat, Dhruv,       A
Sanjay and Rupesh accompanied by accused Ranu, Gopi and
Jitender came to the place armed with different kinds of
dangerous weapons. Specifically it was mentioned that accused
Gopi had come armed with a Nepali Khukhri; accused Ranu
had a knife with him whereas accused Jitender was armed with          B
a Nan Chaku. In so far as accused Bharat and Dhruv are
concerned, it was claimed by the first informant that while the
former was armed with an iron rod, accused Dhruv had carried
a leather belt in his hand. In the FIR it was farther alleged that
accused Ranu had assaulted the first informant Sanjay (PW-            c
4) with a knife but he had escaped without any serious injuries.
However, accused Gopi and Ranu gave knife blows to the
deceased Vinod on his chest and stomach whereas accused
Dhruv and Bharat had assaulted Amit Kashyap (PW-13) with
the belt and iron rod that they had carried. According to the first   0
informant, accused Rupesh and Sanjay had instigated the other
accused to kill the deceased Vinod. Due to the assault
committed on Vinod, he had sustained injuries for which reason
he had to be taken to the hospital.

     3. On receipt of the FIR a case under Sections 147,148,          E
149 and 307 of the IPC was registered. However as the injured
Vinod died at about 9.15 p.m. on the same night, the offence
under Section 302 was added in the FIR. The crime alleged
was duly investigated and on completion thereof all the seven
accused were charge sheeted under Section 147, 148, 302/              F
149 of IPC. Thereafter, the case was committed for trial to the
court of sessions and charges under Sections 147, 148, 302/
149 IPC were framed against the accused persons. As the
accused claimed innocence a regular trial was held, at the
conclusion of which all the seven accused were found guilty of        G
the charge under Section 147, 148, 302/149 IPC. They were
accordingly sentenced. The separate appeals filed by the
seven accused before the High Court having been dismissed
by the impugned order dated 30.11.2009, the accused Bharat,
Dhruv, Sanjay and Rupesh have challenged the aforesaid order          H
    546      SUPREME COURT REPORTS                (2012] 13 S.C.R.


A   of the High Court in the appeals filed by them before this Court.

       4. Before adverting to the core legal issue arising in the
  present appeals, namely, the liability of the accused appellants
  for the offence under Section 302 IPC on the basis of their
B constructive liability, if any, under Section 149 IPC, it will be
  necessary to notice, though very briefly, the salient part of the
  evidence adduced by the prosecution in support of the charges
  levelled.

       5. Of the fifteen witnesses examined by the prosecution,
C the evidence of Sonu Kewat (PW-1), Suraj Dass (PW-2),
  (though declared hostile), Ram Naresh (PW-3), Prakash
  Suryavanshi (PW-5), lmtiaz Ali (PW-6) and Dr. S.K. Sinha (PW-
  7) would be relevant. Equally, the evidence of (PW-4) and PW-
  13 who had been examined as the eye-witnesses to the
D incident will have to be noticed in some details.

        6. From the deposition of PW-1, PW-2, PW-3 and PW-5,
  it transpires that the aforesaid witnesses had come to the place
  of occurrence on hearing the commotion that had taken place.
E The said witnesses, without any major discrepancies or
  contradictions, have narrated that on reaching the place of
  occurrence they could see the deceased Vinod lying injured and
  all the seven accused fleeing away therefrom. However, two of
  the accused, namely, Dhruv and Bharat were apprehended by
  the persons who had gathered at the place of occurrence,
F having come there on hearing the commotion that had taken
  place. It may be noticed, at this stage, that in so far as the
  identity of the accused is concerned, no issue has been raised
  on behalf of the accused at any point of time.

G      7. lmtiyaz Ali (PW-6) is a witness to the recovery of the
  alleged weapons of assault. All such recoveries were made at
  the instance of the accused persons. Specifically, PW-6 has
  deposed that on the basis of the statement of accused Jitender
  a Nan Chaku (Ex.P-7) was recovered. At the instance of
H accused Gopi and Ranu a Nepali Khukri and a Gupti (Ex.P-8
  BHARAT SONI ETC. v. STATE OF CHHATISGARH                   547
             [RANJAN GOGOi, J.]

and Ex.P-11 respectively) was recovered. Similarly, on the          A
basis of the statement of accused Dhruv and Bharat a leather
belt and an iron rod (Ex.P-14 and Ex.P-15) were recovered.

     8. Dr. S.K. Sinha (PW-7) M.O. District Hospital, Ambikapur
who had conducted the post mortem of the deceased Vinod             B
had proved the report of post-mortem (Ex.P-26). This witness
had deposed that corresponding to one of the external injuries
found i.e. an incised wound over the abdominal wall below the
umbilicus, internal injuries cutting the diaphragm and lower lobe
of the right and left lung were found by him on the person of       C
the deceased.

       9. PW-4 who was examined as an eye-witness had
deposed that all the seven accused persons, including the four
appellants, had come together to the place of occurrence at
about 8.40 pm on 05.12.2000. This witness had specifically D
deposed that accused Bharat, who was armed with a Gupti,
had assaulted the deceased in the stomach with the said
weapon. However, in the FIR filed by him, he had stated that
accused Bharat was armed with an iron rod. Similarly in his
deposition, PW-4 had stated that accused Dhruv was also E
holding a Gupti whereas in the FIR it had been mentioned that
the said accused was armed with a leather belt. In a similar
manner, though in the FIR accused Sanjay and Rupesh had
been alleged to be the persons who were instigating the others
to kill Vinod, in his deposition in court PW-4 had stated that he F
had seen the accused Sanjay assaulting the deceased in the
thigh with a Gupti. In so far as accused Rupesh is concerned
PW-4 had not implicated the said accused in any manner at
all while deposing in court. Similarly, PW-4 had not implicated
accused Jitender his evidence in court though in the FIR filed G
he had specifically mentioned that accused Jitender was
armed with a Nan Chaku. In so far as the accused Gopi and
Ranu is concerned PW-4 has, however, been consistent in the
alleged involvement of the said two accused both in the Fl R as
well as in the deposition tendered in Court.
                                                                  H
    548      SUPREME COURT REPORTS               [2012) 13 S.C.R.


A      10. On the other hand, Amit Kashyap (PW 13), had
  deposed that the accused persons, including the present
  appellants, were assaulting (beating) Vinod with hands and fists
  and were also kicking him. However, when he (PW-13) along
  with others had rushed towards Vinod to save him, the accused
B persons took out the Guptis that they were carrying and started
  assaulting the deceased with the said weapons. Specifically,
  PW-13 had stated that accused Ranu had stabbed the
  deceased with a dagger on the stomach and the accused
  Jitender had also inflicted a Gupti blow though he could not see
c the particular part of the body of the deceased on which the
  Gupti blow was inflicted by the accused Jitender.

        11. Furthermore, reading the evidence of PW-13 it is
  clearly discernible that the said witness has tried not to involve
  the accused Bharat in the incident. The motive for the same,
D as evident from the cross-examination of PW-13, is some
  relationship between the two i.e. PW-13 and accused Bharat.
  Specifically, PW-13 had stated that he had not seen Bharat
  committing any assault on the deceased and that he was also
  not sure as to whether Bharat had accompanied the other
E accused persons and also whether he was holding any weapon
  at all. PW-13 has also given a different sequence of the arrival
  of the seven accused persons at the place of occurrence. In
  this regard he had stated that while five accused had arrived
  together, accused Bharat arrived at the place of occurrence
F thereafter and the last to arrive was the accused Sanjay.

       12. Having noticed the essential features of the evidence
  tendered by the prosecution witnesses we may now proceed
  to examine the liability of the accused appellants, all or any of
G them, on the principle of vicarious or constructive liability under
  Section 149 of the IPC. The aforesaid provision of the IPC is
  in the following terms:

          "149. Every member of unlawful assembly guilty of offence
          committed in prosecution of common object - If an offence
H         is committed by any member of an unlawful assembly in
  BHARAT SONI ETC. v. STATE OF CHHATISGARH                   549
             [RANJAN GOGOi, J.]
     prosecution of the common object of that assembly, or such      A
     as the members of that assembly knew to be likely to be
     committed in prosecution of that object, every person who,
     at the time of the committing of that offence, is a member
     of the same assembly, is guilty of that offence."
                                                                     B
     13. An assembly of five or more persons having as its
common object any of the five objects enumerated under
Section 141 of the IPC is deemed to be an unlawful assembly.
Membership of an unlawful assembly is itself an offence
punishable under Section 143 whereas other species of the            C
said offence are dealt with under Sections 143 to 145 of the
IPC. Similarly, Sections 146 to 148 of the IPC deals with the
offence of rioting which is defined to be use of force or violence
by any member thereof. Section 149 makes every member of
an unlawful assembly liable for offence that may be committed
by any member of the unlawful assembly in prosecution of the         D
common object of that assembly or for commission of any
offence that the members of the assembly knew to be likely to
be committed in prosecution of the common object of the
assembly.
                                                                     E
      14. Section 149 IPC, therefore, engrafts a principle of
vicarious or constructive liability inasmuch as a person would
be guilty of an offence, though he may not have directly
committed the same if as a member of an unlawful assembly
he had shared a common object with the other members to              F
commit such an offence or if he knew that such offence was
likely to be committed in prosecution of the common object of
the assembly of which he was a member.

     15. The purport and effect of the provisions of Section 149
IPC has received the consideration of this court on more than        G
one occasion. Without referring to any particular or specific
precedent available on the point, it would suffice to say that
determination of the common object of an unlawful assembly
or the determination of the question whether a member of the
unlawful assembly knew that the offence that was committed           H
    550        SUPREME COURT REPORTS              [2012] 13 S.C.R.


A was likely to be committed is essentially a question of fact that
  has to be made 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 and a host of similar or
  connected facts and circumstances that cannot be entrapped
B by any attempt at an exhaustive enumeration.

         16. In Dani Singh Vs. State of Bihar1 the meaning of the
    word "common object" had been considered by this Court. The
    relevant part of the discussion may be summarized up below:

c          11 ....... The word "object" means the purpose or design
          and, in order to make it "comm~n", 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.. ....
D
          12 ...... 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
E         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
F         the scene of the incident.. ...

          13...... 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
G         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
H   1.   (2004) 13 sec .
     BHARAT SONI ETC. v. STATE OF CHHATISGARH                    551
                [RANJAN GOGOi, J.)
       or before or after the scene of incident.. ... "                 A
     17. In a recent decision of this court in Ku/dip Yadav Vs.
State of Bihar2 to which one of us (Justice Sathasivam) was a
party, the principle of constructive liability under Section 149
IPC had once again received an elaborate consideration. In
                                                                        B
paragraph 39 of the judgment it was held that:

              "It is not the intention of the legislature in enacting
       Section 149 to render every member of unlawful assembly
       liable to punishment for every offence committed by one
       or more of its members. In order to attract Section 149, it      C
       must be shown that the incriminating act was done to
       accomplish the common object of lawful assembly and it
       must be within the knowledge of other members as one
       likely to be committed in prosecution of the common
       object."                                                         D
       18. In para 40 of the judgment an earlier decision in
Rajendra Shantaram Todankar Vs State of Maharashtra3 was
noticed, particularly, the opinion that .... "It is difficult indeed,
though not impossible, to collect direct evidence of such
                                                                        E
knowledge. An inference may be drawn from circumstances
such as the background of the incident, the motive, the nature
of the assembly, the nature of the arms carried by the members
of the assembly, their common object and the behaviour of the
members soon before, at or after the actual commission of the
crime."                                                                 F

     19. Having enumerated the principles of law governing the
application of the principle of constructive liability under Section
149 IPC, it will now be necessary to apply the said principles
to the facts of the present case as disclosed by the evidence           G
on record.
       20. The presence of the accused appellants along with the
2.    c2011) 5 sec 324.
3.    c2003) 2 sec 257.                                                 H
    552     SUPREME COURT REPORTS               (2012] 13 S.C.R.


A other accused at the place of occurrence and at the time and
  date as claimed by the prosecution is not in dispute. It is also
  not in doubt that the two of the accused i.e. Gopi and Ranu (not
  before us) had an altercation with Santosh (PW-4) and the
  deceased Vined about an hour earlier to the incident and that
B the two accused had left the place threatening that they would
  come back to kill Santosh (PW-4) and Vined. Thereafter, all the
  seven accused had come armed with weapons. From the
  evidence of the prosecution witness it transpires that some of
  the accused had attacked Santosh (PW-4) and Amit (PW-13)
c who were present at the spot besides assaulting the deceased
  Vined in the stomach with sharp weapons resulting in his death.
  From the evidence of PW-1, PW-2, PW-3 and PW-5 it clearly
  transpires that all the seven accused, after the incident, were
  seen trying to flee away from the place of occurrence and, in
  fact, two of the accused i.e. Dhruv and Bharat (Appejlants
0
  before us) were apprehended by the persons present at the
  spot.

         21. As against the above, what we find is several serious
  contradictions in the evidence of PW-4 and the previous
E statement made by him in the FIR. The discrepancies are too
  significant to be ignored. As the details in this regard have
  already been noticed the same need not be repeated. Suffice
  it will be to say that such discrepancies in the evidence of PW-
  4 relate to vital aspects of the case, namely, the weapons
F carried by the accused persons; who amongst the accused had
  assaulted the deceased and the weapon(s) used. On the other
  hand, from the evidence of PW-13 it transpires that the accused
  persons were initially assaulting the deceased with their hands
  and fists and were giving him blows and kicks. It is only at a
G later stage i.e. when PW-13 and others had rushed to save
  Vined that accused persons are reported to have taken out the
  weapons they were carrying i.e. guptis. Specifically PW-13 had
  implicated only accused Jitender and Ranu (not appellants) as
  the persons who had inflicted knife and gupti blows on the
H deceased though he had stated that he could not see the
  BHARAT SONI ETC. v. STATE OF CHHATISGARH               553
             [RANJAN GOGOi, J.]
specific part(s) of the body of the deceased on which assault   A
was committed by the accused Jitender.

     22. From the above it is clear that not only the testimony
of PW-4 is self contradictory, the versions of the two eye-
witnesses in so far as the involvement of the accused-appellants
is concerned is at variance with each other. Insofar as accused B
Rupesh is concerned he has hardly been implicated and the
prosecution evidence, properly read, would seem to show that
he was a mere passive onlooker. Also, PW-13 is wholly silent
with regard to the involvement of any of the four accused
appellants before this Court. In fact, PW-13 had gone to the C
extent of stating that the accused Bharat may not have
accompanied the other accused to the place of occurrence and
he was in fact not holding any weapon at all. The recovery of
the alleged weapons at the instance of the accused, if the oral
evidence of PW-4 and PW-13 is to be excluded, will not be D
sufficient to convict the accused appellants under Section 149.
The incident of the accused fleeing away from the place of
occurrence, similarly, will not be conclusive and determinative
of the liability of the accused for the substantive offence under
section 302 with the aid of section 149 IPC. There is no E
convincing and consistent evidence of any individual overt act
on the part of any of the accused appellants to implicate any or
all of them for causing the fatal injuries on the body of the
deceased. Having considered the evidence brought by the
prosecution, as discussed above, we are of the view that it F
cannot be reasonably inferred that the accused appellants, as
members of an unlawful assembly, had any common object to
commit the offence of murder of the deceased Vinod. Neither,
the accused can be attributed with the knowledge that the
offence of murder was likely to be caused or to occur in G
prosecution of the common object. At best what can be said
and held is that the common object of the assembly of the
accused was to teach PW-4 and the deceased Vinod a lesson
on account of the previous altercation that had taken place in
the course of which PW-4 and the deceased had slapped one H
   554       SUPREME COURT REPORTS               [2012) 13 S.C.R.


A of the accused, i.e. Gopi. The accused persons, including the
  present appellants, as members of the unlawful assembly were
  committed and in fact had indulged in the use of force in
  prosecution of the aforesaid common object. The same would,
  however, render the accused appellants liable only for the
8 offence  under Section 147 and 148 of the IPC for which they
  have already been convicted by the learned trial court as also
  by the High Court.
       23. We are, therefore, of the view that while maintaining
  the conviction of the appellants under Section 147and 148 of
C the IPC and the sentence imposed they are entitled to be
  acquitted for the offences under Section 302 read with Section
  149 IPC. If the accused appellants have already served the
  sentence for the offences under Section 147 and 148 of the
  IPC we direct that, unless their custody is required in connection
D with any other case, the accused appellants be set at liberty
  forthwith. The Judgment and Order of the High Court is modified
  accordingly and the appeals are partly allowed to the extent
  indicated above.

E K.K.T.                                   Appeals partly allowed.