Supreme Court of India
BHUPENDRA SINGH & ORS.versusSTATE OF U.P.
- Citation
- 2009 INSC 536
- Decided
- 16 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Court held that the prosecution had established a common object of the unlawful assembly, s.149 IPC applied, and the convictions under sections 147, 148, 149 and 307 IPC were upheld.
Summary
The appellants were members of a large group that attacked the complainant and his relatives with lathis, a gun, and other weapons, resulting in the death of Jugendra Pal Singh and injuries to others. They were convicted under IPC sections 147, 148, 149 and 307. On appeal they argued that the assault was a spur‑of‑the‑moment act, that the weapons were not used, and that the testimony of family witnesses should be disregarded as partisan. The Supreme Court held that the credibility of eyewitnesses cannot be dismissed merely because they are relatives and that the prosecution had proved a common object of the unlawful assembly, making section 149 applicable. Consequently, the convictions were upheld and the appeal dismissed.
Issues considered
- The applicability of Section 149 IPC where the common object of an unlawful assembly is alleged but not expressly proved.
- Whether testimony of relatives of the deceased can be excluded as biased.
- Whether the mere presence of weapons, without proof of their use, defeats conviction under sections 147, 148, 149 and 307 IPC.
Legislation cited
- Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 307, s. 366, s. 376
Subjects
unlawful assemblysection 149 IPCcommon objectwitness credibilitypartisan witnessmurderassaultIndian Penal Code
Judgment
[2009] 6 S.C.R. 262
A BHUPENDRA SINGH & ORS.
v.
STATE OF U.P.
(Criminal Appeal No. 743 of 2009)
APRIL 16, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
c
Penal Code, 1860:
ss.307, 147, 148, 149-Accused party armed with /athis,
-
gun, tamancha and farsa - Assaulted deceased and others
- Death of deceased and injuries to others - Conviction under
ss.147, 148 and 307 by courts below - Applicability of s.149
D challenged -· Held: Question as to what was common object
at particular stage of incident is essentially a question of fact
..
to be deten11ined, keeping in view nature of assembly, arms
carried by members and behaviour of members at the scene
of occurrence - On facts, s. 149 applicable - Conviction
E upheld.
s. 149 - Common object - Meaning of - Discussed.
Evidence: Testimony of related witness - Evidentiary ...
value of.
F
Prosecution case was that a case of abduction and
rape was registered against the accused and others on
the complaint of deceased and his brothel'S~ On the fateful
day, when deceased, complainant and others were going
G to fields, the accused persons came from the other side,
armed with lathis, tamancha and farsa. One accused
armed with gun exhorted to kill deceased. Other accused
persons started assaulting deceased with lathis and
others weapons. On seeing this, complainant and his
H 262
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 263
• brother ran towards the village. On hearing hue and cry, A
' sister, mother and nieces of complainant came to the
place of incident and tried to save the deceased. Accused
persons started assaulting them due to which they
sustained injuries. Thereafter accused persons ran away. ·
Trial court convicted the accused persons under ss.147, B
148, 149 and 307. High Court affirmed the conviction.
:.\:
In appeal to this Court, appellant contended that the
alleged act was done on the spur of the moment and
though it was stated that some of the accused persons
were holding deadly weapons, they were not used and
c
therefore the conviction as recorded cannot be
maintained and that s.149 IPC was not applicable.
Dismissing the appeal, the Court
-~
D
HELD: 1. 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 E
implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent a.nd credible.
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 F
innocent person. Foundation has to be led if plea of false
implication is made. In such cases, the court has to adopt
a careful approach and analyse evidence to find out
whether it is cogent and credible. [Para 8] (271-D-F]
__..... G
Dalip Singh and Ors. v. The State of Punjab AIR (1953)
SC 364; Guli Chand and Ors. v. State of Rajasthan (1974) 3
SCC 698; Vadivelu Thevar v. State of Madras AIR (1957) SC
614; Masa/ti and Ors. v. State of U.P. AIR (1965) SC 202;
H
264 SUPHEME COURT REPORTS (2009] 6 S.C.R.
A State of Punjab v. Jagir Singh AIR (1973) SC 2407; Lehna
v. State of Haryana (2002) 3 SCC 76; Gangadhar Behera and
Ors. v. State of Orissa (2002) 8 SCC 381; Babula/ Bhagwan
Khandare and Anr. v. State of Maharashtra (2005) 10 SCC
404 and Salim Saheb v. State of M.P. (2007) 1 SCC 699,
B relied on.
2.1. The emphasis in Section 149 IPC is on the
common object and not on common intention. Mere
presence in an unlawful assembly cannot render a
C person liable unless there was a common object and he
was actuated by that common object and that object is
one of thoi;e 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. It cannot be laid down as a general
D proposition of law that unless an overt act is proved
against a person, who is alleged to be a member of an
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
E 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,
F that is to say, they should all be aware of it and concur
with 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
G 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
H
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 265
L-
149 has to be strictly construed as equivalent to "in order A
to attain the common object". It must be immediately
connected with the common object by virtue of the .
nature of the object. There must be community of object
and the object may exist only up to a particular stage, and
not thereafter. Members of an unlawful assembly may 8
have community of object up to a certain point beyond
which they may differ in their objects and their
• knowledge, possessed by each member of what is likely
to be committed in prosecution of their common object
which may vary not only according to the information at C
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.
[Para 16) (273-H; 274-A; 274-C-H; 275-A] D
2.2.·"Common object" is different from a "common
intention" as it does not require a prior concert and a
common meeting of minds before the attack. It is enough
if each has the same object in view and their number is E
five or more and that they act as an assembly to achieve
that object. The "common object" of an assembly is to
. be ascertained from the acts and language of the
,.. members composing it, and from a consideration of all
the surrounding circumstances. It may be gathered from F
the course of conduct adopted by the members of the
assembly. What the common object of the unlawful
assembly is at a particular stage of the incident is
essentially a question of fact to be determined, keeping
in view the nature of the assembly, the arms carried by G
.-- 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 H
266 SUPREME COURT REPORTS [2009] 6 S.C.R.
.,.
\
A 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
B forming an unlawful intent is not material. An assembly
which, at its commencement or even for some time
thereafter, is lawful, may subsequently become unlawful.
In other words it can develop during the course of
incident at the spot eo instanti. Section 149 IPC consists
c 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
o connected immediately with the common object of the
unlawful assembly of which the accused was a 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
E 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
unlawful assembly set out or desired to achieve is the
object. If the object desired by all the members is the
F 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
G mental attitude, no direct evidence can be available and,
like intention, has generally to be gathet ed from the act
which the person commits and the r~sult therefrom.
Though no hard-and-fast rule can be laid down under the
circumstances from which the common object can be
H culled out, it may reasonably be collected from the nature
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 267
1 of the assembly, arms it carries and behaviour at or A
before or after the scene of incident. The word "knew"
used in the second branch of the section implies
something more than a possibility and it cannot be made
to bear the sense of "might have been known". Positive
knowledge is necessary. When an offence is committed B
in prosecution of the common object, it would generally
be an offence which the members of the unlawful
assembly knew was likely to be committed in prosecution
of the common object. That, however, does not make the
converse proposition true; there may be case·s which c
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 o
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 E
be generally, if not always, be within the second part,
namely, offences w:iich the parties knew to be likely to
,be committed in the prosecution of the common object.
The trial court and the High Court were justified in holding
the appellant guilty. [Paras 17 and 18] [275-B-F; 275-G-H; F
276-A-H; 277-A-B]
Case Law Reference:
AIR (1953) SC 364 relied .on Para 9
G
(1974) 3 sec 698 relied on Para 10
AIR (1957} SC 614 relied on Para 10
AIR (1965) SC 202 relied on Para 12
H
268 SUPREME COURT REPORTS [2009] 6 S.C.R.
>
A AIR {1973) SC 2407 relied on Para 13 •
(2002) 3. sec 76 relied on Para 13
(2002) s sec 381 relied on Para 13
B (2005) 10 sec 404 relied on Para 14
(2001) 1 sec 699 relied on Para 14
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 743 of 2009.
c
From the Judgment & Order dated 22.06.2007 of the High
Court of Judicature at Allahabad in Criminal Appeal No. 239
of 1982.
D N. Rai, Shantanu Sagar, Avinash Shanna and T. Mahipal
for the Appellants.
R. Dash, Shail Kumar Dwivedi, Rashmi Singh and Anuvrat
Shanna for the Respondents.
E The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
F Bench of the Allahabad High Court dismissing the appeal filed
by the appellants. Seventeen persons had filed the appeal
questioning their conviction for offence punishable under
Sections 147, 302 read with Sections 149, 307 read with
Section 149 of the Indian Penal Code, 1860 (in short the 'IPC').
G Four of the accused persons namely Bishin Singh, Nathu Singh,
Yatinder Singh and Kundan Singh were separately convicted
for offence punishable under Section 14«3 IPC. During the
pendency of the appeal eight of the accused persons died and
their appeal was held to have abetted so far as they are
H
BHUPENORA SINGH & ORS. v. STATE OF U.P. 269
1 [DR. ARIJIT PASAYAT, J.]
concerned. A
3. Prosecution versions as unfolded during trial is as
follows:
On 13.4.1981 at about 7 a.m. in the Khlihan near village
B
Hasanpur under Soron' Police Station of District Etah, the
incident resulting in the death of Jugendra Pal Singh (hereinafter
• referred to as the 'deceased') was occurred. A case under
Section 366/376 IPC regarding abduction and rape of Kumari
Asha and Munniboth nieces (sister's daughters) of complainant
... was registered agairtstthe accused Yatendra Singh and others
c
on )0.04.1981 at_P:s. Soron. On 13.04.1981 at about 7:00
a.m., the corripiainant Suresh Pal Singh, his brothers Jugendra
Pal Singh and Narendra Pal Singh and his nephew (sister's
son) Mahesh Pal Singh, who was residing with him, were going
0
··- to see their Khilihan. When ·they reached near the Khalihan, the
accused Bishan Singh, Jangi Singh, Gajju @ Gajraj Singh,
Yatendra Singh sons of Pyare Singh, Natthu Singh S/o Sahib
Singh, Bhupendra Singh s/o Natthu Singh, Ombvir Singh @
Munna S/o UdaivirSingh, Udai Pratap S/o Gajju Singh, Suraj
Pal Singh S/o Amir Singh, Dhoom Singh, Munendra Singh @ E
Ram Singh, Ram Vir Singh sons of Mkut Singh Thakur,
Bhoodev, Man Singh sons of )hamman, Mahendra Pal S/o
~
Bhoodev, Ram Nath S/o Hardev and Lalau S/o Shivan Mallah
.' all residents of Village Hasanpur P.S. Soron District Etah and
Kundan Singh Tahkur Rio Village Kachhla, District Budaun, who F
was Samdhi of Natthu Singh, came out from the side of
Khalihand having lathies, tamancha and Farsa. The accused
Natthu Singh who-was armed with his licensed gun, exhorted
saying, "Jugendra Pal Singh Ko Pakad lo tatha jan se mar do,
J-
Kyunki hamare khilaf jhutha mukadam darj karaya hai." On this G
exhortation, the accused persons with intention to cause the
death of Jugendra Pal Singh began to assault him by lathi and
other weapons. Somehow the complainant Suresh Pal Singh,
his bother Narendra Pal Singh and his sister's Son Mahesh Pal
H
270 SUPREME COURT REPORTS (2009) 6 S.C.R.
\
+
A Singh escaped and rushed towards village raising alarm. On
hearing hue and cry, Smt. Ramwati sister of the complainant
and his mother Smt. Ketuki, his nieces Munni and Asha and
other village people came to the place of occurrence and saw
the incident. When Smt. Ramwati and Smt. Ketuki tried to save
B Jugendra Pal Singh, they were also assaulted by the accused
persons, due to which they sustained injuries. Thereafter, the
accused persons considE)ring the injured Jugendra Pal Singh
to have died, fled away towards Ganga Ji. The complainant
carried his brother Jugendra Pal Singh, sister and mother by
c bullock cart to P.S. Soron, where he made over the their written
report on the basis of which chik FIR Exh. Ka4 was prepared
by Gurudutt (PW 4), who registered a case under Sections 147,
148, 149 and 307 IPC at Crime No. 97/81 against above
named accused persons on 13.4.1981 at 9.05 a.m. entry of
D which was made in the GD No. 12.
--·
4. After completion of investigation chargesheet was filed.
As accused persons pleaded innocence, trial was held. The
trial court as noted above found the accused persons guilty and
E convicted and sentenced them. In appeal the primary stand
taken before the High Court was that evidence of the so called
witnesses are of no consequence. It was also submitted that
Section 149 has no application to the facts of the case. It was
also submitted that the prosecution did not lead specific ...
evidence as to which member of the alleged unlawful assembly & '
F
did which or what act. The High Court found no substance in
the plea and upheld the conviction.
5. In support of the appeal learned counsei for the appellant
submitted that the alleged act was done on the spur of the
G moment and though it was stated that some of the accused
persons were holding deadly weapons, they were not used and
.
therefore the conviction as recorded cannot be maintained.
6. Learned counsel for the respondent-State on the other
H
_,,
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 271
[DR. ARIJIT PASAYAT, J.]
i
hand supported the judgment. A
7. In the instant case the prosecution version as noted
above is to the following effect:
The accused Natthu Singh who-was armed with his
B
licensed gun, exhorted saying, "Jugendra Pal Singh Ko Pakad
lo tatha jan se mar do, Kyunki hamare khilaf jhutha mukadam
~ darj karaya hai." On this exhortation, the accused persons with
intention to cause the death of Jugendra Pal Singh began to
assault him by lathies etc. Somehow the complainant Suresh
Pal Singh, his bother Narendra Pal Singh and his sister's Son
c
_,,..
Mahesh Pal Singh escaped and rushed towards village raising
alarm.
8. Merely because the eye-witnesses are family members
their evidence cannot per se be discarded. When there is D
A_
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 E
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
tr'
make allegations against an innocent person. Foundation has
to be laid if plea of false implication is made. In such cases, F
the court has to adopt a careful approach and analyse evidence
to find out whether it is cogent and credible.
9. In Dalip Singh and Ors. v. The State of Punjab (AIR
1953 SC 364) it has been laid down as under:- G
.I
"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 H
=-.
272 SUPREME COURT REPORTS [2009] 6 S.C.R.
\
f
A 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
B grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far
from beinn 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.
c 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."
D 10. 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.
11. We may also observe that the ground that the witness
E 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 ....
F 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
G 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
H
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 273
[DR. ARIJIT PASAYAT, J.]
-~
are unable to concur. This is a fallacy common to many A
- 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 unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel." B
12. Again in Masalti and Ors. v. State of U.P. (AIR1965
"'i. 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
c
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 Q_
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."
13. To the same effect is the decisions in State of Punjab E
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).
""
14. The above position was also highlighted in Babula/ F
Bhagwan Khandare and Anr. v. State of Maharashtra
[2005(10) SCC 404) and in Salim Saheb v. State of M.P.
(2001(1) sec 699).
15. However, one plea which was urged with some G
amount of vehemence was the applicability of Section 149 IPC.
16. The emphasis in Section 149 IPC is on the common
object and not on common intention. Mere presence in an
unlawful assembly cannot render a person liable unless there
H
274 SUPREME COURT REPORTS (2009] 6 S.C.R.
•
f
A 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
B assembly consisted of five or more persons and owhether the
said persons entertained one or more of the common objects,
as specified in Section 141. It cannot be laid down as a general
.SI'
proposition of law that unless an overt act is proved against a
person, who is alleged to be a member of an unlawful
c 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
D
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 othe~
-
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 with it. A common object may be formed by
express agreement after mutual consultation, but that is by no
E 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 .,.
F in Section 149 has 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 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
G of an unlawful assembly may have community of object up to a
certain point beyond which they may differ in their objects and
their knowledge, possessed by each member of what is likely
to be committed in prosecution of their common object which
may vary not only according to the information at his command,
H but also according to the extent to which he shares the
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 275
[DR. ARIJIT PASAYAT, J.]
~
community of object, and as a consequence of this the effect A
of Section 149 IPC may be different on different members of
the same assembly.
17. "Common object" is different from a "common
intention" as it does not require a prior concert and a common
B
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
',
c
consideration of all the surrounding circumstances. It may be
gathered from the course of conduct adopted by the members
of the assembly. What th~ common object of the unlawful
,•
assembly is at a particular stage of the incident is essentially
a question of fact to be determined, keepin·g in view the nature
i.__ D
of the assembly, the arms carried by the members, and the
behaviour of the Dmembers 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
E
to Section 141, an assembly which was not unlawful when it was
assembled, may subsequently become unlawful. It is not
necessary that the int13ntion 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
F
material. An assembly which, at its commencement or even for
some time thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the course of
incident at the spot eo instanti.
-18. Section 149 IPC consists of two parts. The first part G
of the section means that the offence to be committed in
prosecution of the common object must be one whi.ch is
committed with a view to accomplish the common object. In·
order that the offence may fall within the first part, the offence
H
276 SUPREME COURT REPORTS [2009] 6 S.C.R.
A must be connected immediately with the common object of the
unlawful assembly of which the accused was a 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
B 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 unlawful assembly set out or desired to achieve
is the object. If the object desired by all the members is the
same, the knowledge that is the object which is being pursued
c 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
0 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, anns it carries and behaviour at or before or after
E the scene of incident. The word "knew" used in the second
branch of the section implies something more than a possibility
and it cannot be made to bear the sense of "might have been
known". Positive knowledge is necessary. When an offence is
committed in prosecution of the common object, it would
F generally be an offence which the members of the' unlawful
assembly knew was likely to be committed in prosec;ution of
the common object. That, however, does not make the converse
proposition true; there may be cases which would come within
the second part but not within the first part. The distinction
G between the two parts of Section 149 cannot be ignored or
obliterated. In every case it would be an issue to be detennined,
whether the offence committed faUs 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
H falls within the second part. However, there may be cases which
BHUPENDRA SINGH & ORS. v. STATE OF U.P. 277
[DR. ARIJIT PASAYAT, J.]
would be within the first part but offences committed in A
prosecution of the common object; would be generally, if not
always, be within the second part, namely, offences which the
parties knew to be likely to be committed in the prosecution of
the common object.
B
19. Above being the position the trial court and the High
Court were justified in holding the appellant guilty. We find no
reason to interfere in the appeal which is accordingly
dismissed.
D.G. Appeal dismissed.
c
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