Holding

A conviction under Section 149 IPC is valid if the prosecution proves a common unlawful object and the accused’s participation, even without specific role attribution, and the testimony of interested witnesses can be relied upon if found credible.

Summary

The case arose from a violent clash over the construction of a shed that resulted in the death of a man. The prosecution alleged that a group of accused formed an unlawful assembly, assaulted the victims and caused the murder. The trial court convicted fifteen accused under Sections 302, 148, 149 and 307 IPC; the High Court later upheld the conviction of ten and acquitted the rest. On appeal, the accused challenged the credibility of eyewitnesses who were relatives of the deceased and members of the same political party, argued that Section 149 could not apply because no specific role was assigned to each accused, and invoked the doctrine of falsus in uno falsus in omnibus. The Supreme Court held that a witness’s relationship does not automatically vitiate his testimony, that Section 149 is attracted if a common object of the unlawful assembly is proved even without pinpointing each accused’s exact act, and that the doctrine of falsus in uno has no application in Indian law. Consequently, the convictions of the appellants were upheld and the appeal dismissed.

Issues considered

The credibility of eyewitnesses who are relatives or politically aligned with the victim
Whether Section 149 IPC applies when specific roles of each accused are not identified
Whether the doctrine of falsus in uno falsus in omnibus can defeat the prosecution case
Whether the benefit of doubt should be extended because some co‑accused were acquitted
The proper interpretation of the two limbs of Section 149 and the requirement of a common object

Legislation cited

Indian Evidence Act, 1872
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 302, s. 307, s. 324

Subjects

Unlawful assemblySection 149 IPCCommon objectWitness credibilityInterested witnessFalsus in uno falsus in omnibusBenefit of doubtMurderEvidence evaluation

Judgment

GANGADHAR BEHERA AND ORS. A
v.
STATE OF ORI SSA

OCTOBER I 0, 2002

[ARIJIT PASA YAT AND S.B. SINHA, JJ.] B

Penal Code, 1860; Sections 141, 148, 149 and 302:

Murder-Unlawful assembly-Conviciion-Jngredients of-Held. a
member of the assembly if understood the object and unlawful acts ·likely to C
be committed by it, then such member would be held liable as member of
unlawful assembly-Proof of overt act is not necessary.

Common object and commcn il'lention-Distinction between-Discussed

Evidence Act, 1872: D

Testimony of interested witnesses-reliance thereupon-Held, relationship
does not affect credibility of the witnesses-Cou: 'to adopt a careful approach
in such cases and analyze evidence to find out whether it is cogent and
credible.
E
Maxim:

'Falsus in uno-falsus in om1Jibus'-Meaning and applicability of

According to prosecution, on the fateful day, there was a quarrel
between the deceased and DWI in connection with construction of a shed F
in a market. The deceased and PWs. were chased by the accused persons.
Two of the accused (Appellant Nos. 7 & 10) dragged the deceased and
others and assaulted them. When police came on the spot, these accused
persons fled away. PWS, one of the eyewitnesses, lodged an FIR.

Trial Court conducted trial of 21 accused persons and convicted 15
G
of them under Section 302 read with Section 149 and Section 148 as well
as Section 307 read with Section 149 IPC and sentenced them accordingly.
However, it acquitted remaining accused persons. Convicted accused
unsuccessfully filed an appeal before High Court. On appeal, this Court

183
H
184 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A remitted the matter to the High Court to dispose it of by carefully
analyzing the evidence. High Court reheard the matter and upheld
conviction of 10 accused persons and acquitted other accused persons.
Hence this appeal.

It was contended for the appellants that the main eyewitnesses were
B relatives ofihe deceased and belonged to the sam1e i;olitical party to which
deceased belonged; that witnesses did not attribute any definite role to
accused .persons and Section 149 was not applicable; that grounds on which
some of the accused persons acquitted were also logically applicable to
accused appellants; that other independent eyewitnesses were not
C examined; and that there was discrepancy between evidence of
eyewitnesses and medical evidence.

·On behalf of the State, it was submitted that the evidence of
eyewitnesses was clear, cogent and credible; that no foundation for false
implication of accused was established; that non-examination of an
D independent witness did riot dilute. the evidence of eyewitnesses; that the
common intention to commit the crime was established; and that some of
the accused were acquitted, did not render the evidence of eyewitnesses
suspect.·

Dismissing the appeal, the Court
E
HELD: 1.1. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person. Foundation has
to be laid if plea of false implication is made. In such cases, the Court has
to adopt a careful approach and analyse evidence to find out whether it
F is cogent and credible. The ground that the witness being a close relative
and consequently being a partisan witness, should not be relied upon, has
no substance. (191-E; 192-C(

Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; Guli
G Chand and Ors. v. State of Rajasthan, 119741 3 SCC 698; Vadive/11 Thevar
v. State of Madras, AIR (1957) SC 614; Masalti and Ors. v. State of U.P.,
AIR (1965) SC 202; State of Punjab v. Jagir Singh, AIR (1973) SC 2407
and Lehna v. State of Haryana, 120021 3 SCC 76, relied on.

L2. In essence prayer for non-acceptance of evidence tendered by
H some witnesses to throw out entire prosecution case is to apply the
GANGA DHAR BEHERA v. STATE OF ORI SSA 185
principle of "falsus in uno falsus in omnibus" (false in one thing, false in A
everything). This plea is clearly untenable. Even if major portion of
evidence is found to be deficient, in case residue is sufficient to prove guilt
of an accused, notwithstanding acquittal .-Of number of. other co-accused
persons, his conviction can be maintained. Falsity of particular material
witness or material particular would not ruin it from the beginning to end. B
This maxim has no application in India and the witness cannot be branded
as liar. It is merely a rule of caution. The doctrine merely involves the
question of weight of evidence which a Court may apply in a given set of
circumstances, but it is not a mandatory rule of evidence.
j193-B-C-D-El

Nisar Ali v. The State of Uuar Pradesh, AIR (1957) SC 366, relied on.
c
1.3. The doctrine 'falsus in uno falsus in omnibus' is a dangerous
one specially in India for if a whole body of the testimony were to be
rejected, because witness was evidently speaking an untruth in some aspect,
it is to be feared that administration of criminal justice would come to a D
dead-stop. Witnesses just cannot help in giving embroidery to a story,
however, true in the main. Therefore, it has to be appraised in each case
as to what extent the evidence is worthy of acceptance, and merely because
in some respects the Court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not necessarily follow as a
matter of law that it must be disregarded in all respects as well. An attempt E
has to be made to separate truth from falsehood. Where it is not feasible
to separate truth from falsehood, and in the process of separation an
absolutely news_;ise has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context and the
background against which they are made, the only available course to be p
made is to discard the evidence in toto. 1193-F-G-H; 194-A-B-CI

Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh, 11972)
2 SCC 751; Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) SC 277;
Zwinglee Ariel v. State of Madhya Pradesh, AIR (1954) SC 15 and Ba/aka
Singh and Ors. v. The State of Punjab, AIR (1975) SC 1962, referred to. G
1.4. Merely because some of the accused persons have been acquitted,
though evidence against all of them, so far as direct testimony went, was
the same does not lead as a necessary corollary that those who have been
convicted must also be acquitted. It is always open to a Court to
differentiate the accused who had been acquitted from those who were H
186 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A convicted. I 193-FI

Gurucharan Singh and Anr. v. State of Punjab, AIR 1956 SC 460, relied
on.

1.5. Normal discrepancies do not corrode the credibility of a party's
B case, material discrepancies do so. In the instant case, accusations have
been clearly established against accused-appellants. The Courts below have
categorically indicated the distinguishing features in evidence so far as
acquitted···and convicted accused are concerned. (194-E(

1.6. Exaggerated devotion to the rule of benefit of doubt must not
C nurture fanciful doubts or lingering suspicion and thereby destroy social
defence. Justice cannot be made sterile on the plea that it is better to let
hundred.guilty escape than punish an innocent Letting guilty escape is
not doing· justice according to law. (194-G)

D Shivaji Sahebrao Bobade v. State of Maharasthra, (19741 I SCR 489
and State of U.P. v. Krishna Gopa/, AIR 2988 SC 2154, relied on.

Gurbachan Singh v. Satpal Singh and Ors., AIR (1990) SC 209; State
of UP. v. Ashok Kumar Srivastava, AIR (1992) SC 840; lnder Singh and
Anr. v. State (Delhi Admn.), AIR (1978) SC 1091 and State of U.P. v. Anil ·
E Singh, AIR (1988) SC 1998, referred to.

2.1. Mere presence in an unlawful assembly cannot render a person
liable unless there was a common object and he was actuated by that
common object and that object is one of those set out in Section 141. Where
common object of an unlawful assembly is not proved, the accused persons
}t canriot::be,convicted with the help of Section 149. 1197-H; 198-A)
r:r fl l,·'....i:i J1··~·
2.2. It cannot be laid down as a general proposition of law that unless
atfover,t;act,is.pro:V.ed againsfa;person,· who is alleged to be a member of
llilli1Wfil_l:assembly1,it•cliiihot· becsitid.that he is •a member of an assembly.
T.be· .onty;ithing\reqiliredlis,1that 'he·, should have understood that the
G assemblyJvas,llillaWfilltilild!M1ll' Jikely•to ·.commit an')' of the acts whiCh
fall within the purview of Section 141. The word 'object' means the
pllrjlose'-Or' t1digil arit1Vin"6rde'r folm~k.e•'W'coin·mori';- if.In list· be shared
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,,. 11 2,3, A \!Omrp,c;in o~j.ect·.mayrl>e1forcn1e~J.,by express ag.ree111entafter
H .mu(ua,l.~11on.sul~!lti1m,·b!1~¢h;i!.i~. byioo means :necessary: It ·lnay ,be formed
GANGADHAR BEHERA v. STA TE OF ORISSA 187
at any stage by all or a few members of the assembly and the other A
members may just join and adopt it. On~e formed, it need not continue
to be the same. It may be modified or altered or abandoned at any stage.
Though no hard and fast rule can be laid down under the circumstances
from which the common object can be called out, it may reasonably be
collected from the nature of the assembly, arms it carries and behaviour B
at or before or after the scene of incident. [197-D-E; 199-E)

3.1. The distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue.to be determined,
whether the offence committed falls within the first part or it was an
offence such as the members of the assembly knew to be likely to be C
,committed in prosecution of the common object and falls within the second
;p~rt. However, there may be cases which would be within first offences
> ~_,. :
•.J { ! < ,1

,f!>W'rm~~,l~,prosecution of the common object would be generally, if n(lt
always, with the second, namely, offences which the parties knew to be
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.i•;:;v.Jananinjap Das;··Gi>Bisw.akand ·S; Mishra,•fo(;the··Respondentv '·' 1:1
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188 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A ARIJIT PASAYAT, J. This is the second journey of the accused-
appellants to this Court questioning their conviction on being found guilty of
offences punishable under Section 302 read with Section 149 and Section
148 of the Indian Penal Code, 1860 (in short the 'IPC').

On the first occasion apart from the conviction for the aforesaid offences,
B the appellants were also convicted under Section 307 read with Section 149
IPC. However, in the second instance, the said conviction has been altered
to one under Section 324 read with Section 149 !PC .
. ·~

Filtering out unnecessa~y details, the prosecution version as unfolded
C during trial is as follows:

On 31.12.1988, there was an altercation between Jairam Das and
Sadananda (hereinafter referred to as the deceased) on one hand and
Jagabandhu Sama! (D.W.I) on the other near Motto Hat in connection with
occupation/construction of a shed in a market area. When Jagabandhu suddenly
D got up his head struck against a bamboo protruding into the thatch and he
sustained some injury. Subsequently, when Jairam Das (PW-I), Gagan Das
(PW-5) and the deceased proceeded towards their village near Balabhadrapur
Sasan, they found that the accused persons armed with lathi, tentas etc. were
coming. Being afraid, the deceased and his companions ran towards to the
village. Gagan Das (P.W. 5) went inside the house of Sikhar Bal whereas the
E other three concealed themse!ves inside the house of Nilakantha Rath (P. W.
8): The house was surrounded by the accused persons who dealt blows on the
door and walls of the house and some of them entered inside the house.
Accused Panchanan (appellant I0 in the present appeal) and Su bash Sam al
(appellant 7 in the present appeal) dragged the three persons and assaulted
F them. At that time, one of the accused persons shouted that police personnel
were coming and subsequently all the accused persons fled away. PW-5 who
saw .the incident through an opening in the door leaf of the house of Sikhar
Bal lodged the report before the Police which was treated as the First
Information Report. Apart from PW-I who was injured in the incident and
PW-5, the informant, the occurrence was seen by some either persons including
G PWs. 2, 3, 4, 7 and 8. The last two witnesses are the owners of the house
wherein the deceased and his companions had taken refuge and also spoke
about the occurrence but except a few they were not able to name the other
ac~tsed persons. Investigation was undertaken and on completion thereof,
charge sheet was placed.

H The accused persons gave a different version of the incident. According
GANGADHAR BEHERA v. STATE OF ORJSSA [ARIJIT PASA YAT, J.j 189

to them, the allegation that the accused persons being armed followed the A
deceased and his companions to Balabhadrapur Sasan is incorrect. In fact,
some incident took place in the Motto Hat itself where DW-1 was assaulted
and in order to save himself, he had brandished a 'Bahunga'. As a result, the
deceased, PW-I and Sanatan we~e injured. To substantiate their plea, they
examined DW-1 and nine others. It was indicated that.the appellant-Subash B
Samal is the son of DW-1. It was claimed by them that since they belonged
to Communist Party and the deceased belonged to Congress Party, they were
falsely implicated.

Originally, there were 21 accused persons. The Additional Session Judge,
Bhadrak acquitted six of them and convicted the other 15 under Section 302 C
read with Section 149 !PC and Section 148, !PC as well as under Section 307
read with Section 149 !PC and sentenced them to suffer imprisonment for life
for the conviction and sentence under Section 302 read with Section 149 IPC,
and three years rigorous imprisonment on each count i.e. for offences
punishable under Section 148 and under Section 307 read with Section 149
!PC. The sentences were directed to run concurrently. D

The 15 accused persons who had been convicted preferred an appeal
before the Orissa High Court. A Division Bench by its judgment dated
18.4.1995 dismissed the appeal i.e. Criminal Appeal No.133/90. The said
judgment of the High Court was assailed before this Comt in appeal arising E
out of Special Leave Petition No.417011995. This Court noticed that the High
Court had disposed of the appeal in a very casual manner without even
analyzing the evidence and there was no proper application of mind. The
matter was, therefore, remitted back to the High Court. That is how the High
Court heard the appeal again and by the impugned judgment has upheld the
conviction of I 0 and acquitted the rest of the accused. It is to be noted that F
in respect of Krishna Mohanty (accused No.17) the High Court noticed that
there was no finding recorded by the Trial Court either finding him guilty or
otherwise, and, therefore, it was observed that it must be deemed that the said
Krishna Mohanty had been acquitted by the Trial Court. The High Court by
its impugned judgment specifically directed acquittal of four of the accused G
persons i.e. appellants 1, 2, 3 and 15 before it. The judgment of the High
Court dated 16.7.1999 is the subject matter of challenge in this appeal.

At the Special Leave Petition stage because of non-surrender of accused
I
appellant No.7, Subash Sama!, the petition was dismissed by order dated
18.7.2000, so far as he is concerned. H
190 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A In support of the appeal, Mr. S. Misra, learned counsel has submitted
that ~hough by its previous judgment this Court had required the High Court
to analyse the evidence vis-a-vis every accused, it has not been done. In fact,
as was done previously, the High Cou1t has proceeded on generalized basis.
The main eye witnesses PWs. 1 and 5 are relatives of the deceased and the
B other eye-witnesses are members of the sami~ political party to which the
deceased and PWs. I and 5 belonged. The witnesses have not specifically
attributed any definite role to the accused persons. In fact they have in an
omnibus manner stated that accused persons had assaulted. It is improbable
that PW-5 could have seen the occurrence, through a small hole as claimed
by him. The four accused persons who have been acquitted by the Trial
C Court stood on similar footing and the logic for their acquittal is equally
applicable to the present appellants. Sikhar Bal in whose house PW 5 claimed
to have taken shelter, has not been examined and PWs. 7 and 8 who are the
independent witnesses have also not identified all the accused persons and
only identified few of them. Sanatan who, the prosecution claimed, was
injured has also not been examined. Overt act, if the prosecution .version is
D to be accepted, has been attributed to accused Katia, Subash Sama!, Hemant
Nayak and Panchanan Bal (appellants 4, 7, 8 and 10 respectively). There is
no reason as to why the others should have been convicted. The ingredients
of Section 149 are not present oecause the witnesses have not said about the
specific roles, if any, played by the accused and mere omnibus statement is
E not sufficient to bring in application of Section 149. The defence version is
more probable and should have been accepted. There was a discrepancy
between the evidence of the so-called eye-witnesses and the medical evidence
on record. With reference to Bolineedi Venkataramaiah and Ors. v. State of
Andhra Pradesh, AIR (1994) SC 76 it has been stated that before the
application of Section 149 the evidence of interested witnesses has to be
F carefully analysed and according to learned counsel the said has not been
done in the present case. With reference to Kamaksha Rai and Ors. v. State
of UP., AIR (2000) SC 53 it has been submitted that omnibus statements are
not sufficient to bring in application of Section 149. It was also submitted
that si~ce some of the accused persons have been acquitted either by the Trial
G Court and the High Court and discarding of evidence of the so-called eye
witnesses, a different yardstick should not have been applied so far as the
appellants are concerned.

In response, Mr. J.R. Das, learned counsel for the State submitted that
the evidence of the eye-witnesses is clear, cogent and credible. Merely because
H they belonged to a particular political party there is no reason as to why they
GAN GAD HAR BEHERA v. STATE OF OR ISSA [ARI.HT PASA YAT . .I.] I 91

would falsely implicate the accused persons. No foundation for falsely A
implicating them has been established. All the accused persons have been
named. It has been clearly brought on evidence that they were armed while
chasing deceased and the injured witnesses and were shouting to bring them
out when they had taken shelter in the house of Sikhar Bal. Merely because
Sikhar Bal has not been examined, that does not in any way dilute the evidence B
of eye witnesses. Further, much has been made out of the non-examination
of Sanatan. It has been clearly brought on record that his whereabouts are not
known and, therefore, he could not be examined. Further, PW 7 has not
stated that except two accused persons whom he had named and identified,
others were not present. He has never stated that the others were not there,
and only stated that he knew the name of two persons. The common intention C
has been clearly established. Merely because some of the accused persons
have been acquitted, that does not render the evidence of the eye-witnesses
suspect. Two Courts have categorically found that the accused persons were
armed while chasing the deceased and the others, entered into the house
where they were taking shelter and brought them out, and one of the witnesses
had sustained injuries in the occurrence, while deceased lost his life. These D
findings of fact are conclusive in nature 2.nd there is no scope for any
interference.

We shall first deal with the contention regarding interestedness of the
witnesses for furthering prosecution version. Relationship is not a factor to E
affect credibility of a witness. It is more often than not that a relation would
not conceal actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In such cases,
the court has to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible.
F
In Da/ip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364
it has been laid down as under:-

"A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually G
means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily a close relation would be
the last to screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal cause
for enmity, that there is a tendency to drag in an innocent person
against whom a witness has a grudge along with the guilty, but H
192 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A foundation must be laid for such a criticism and the mere fact of
·relationship far from being a foundation is often a sure guarantee of
truth. However, we are not attempting any sweeping generalization.
Each case must be judged on its own facts. Our observations are only
made to combat what is so often put forward in cases before us as a
general rule of prudence. There is no such general rule. Each case
B ·,must be limited to and be governed by its own facts."

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.

c We may also observe that the ground that the witness being a close
relative and consequently being a partisan witness, should not be relied upon,
has no substance. This theory was repelled by this Court as early as in Dalip
Singh 's case (supra) in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that relatives were
D not independent witnesses. Speaking through Vivian Bose, J. it was observed:

"We are unable to agree with the learned Judges of the High Court
that the testimony of the two eyewitnesses requires corroboration. If
the foundation for such an observation is based on the fact that the
witnesses are women and that the fate of seven men hangs on their
E testimony, we know of no such rule. If it is grounded on the reason
that they are closely related to the deceased we are unable to concur.
This is a fallacy common to many criminal cases and one which
anot11er Bench of this Court endeavoured to dispel in 'Rameshwar v.
State ofRajasthan' AIR(1952) SC 54 at p.59. We find, however, that
it unfortunately still persists, if not in the judgments of the Courts, at
F any rate in the arguments of counsel."

Again in Masalti and Ors. v. State of U.P., AIR (1965) SC 202 this
Court observed: (p, 209-210 para 14):

;,But it would, we think, be unreasonable to contend that evidence
G given by witnesses should be discarded only on the ground that it is
evidence of partisan or interested witnesses ....... The mechanical
rejection of such evidence on the sole ground that it is partisan would
invariably lead to failure of justice. No hard and fast rule can be laid
down as to how much evidence should be appreciated. Judicial
H approach has to be cautious in dealing with such evidence; but the
GANGADHAR BEHERA v. STATE OF ORISSA [ARIJIT PASAYAT, J.] 193

plea that such evidence should be rejected because it is partisan cannot A
be accepted as correct."

To the same effect is the decision• in State of Punjab v. Jagir Singh,
AIR (1973) SC 2407 and Lehna v. State of Haryana, (2002] 3 SCC 76. Stress
was laid by the accused-appellants on the non-acceptance of evidence tendered
by some witnesses to contend about desirability to throw out entire prosecution B
case. In essence prayer is to apply the principle of "falsus in uno falsus in
omnibus" (false in one thing, false in everything). This plea is clearly
untenable. Even if major portion of evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, notwithstanding acquittal of
number of other co-accused persons, his conviction can be maintained. It is C
the duty of Court to separate grain from chaff. Where chaff can be separated
from grain, it would be open to the Court to convict an accused notwithstanding
the fact that evidence has been found to be deficient to prove guilt of other
accused persons. Falsity of particular material witness or material particular
would not ruin it from the beginning to end. The maxim "falsus in uno falsus
in omnibus" has no application in India and the witnesses cannot be branded D
as liar. The maxim "falsus in uno falsus in omnibus" has not received general
acceptance nor has this maxim come to occupy the status of rule of law. It
is merely a rule of caution. All that it amounts to, is that in such cases
testimony may be disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence which a Court E
may apply in a given set of circumstances, but it is not what may be called
'a mandatory rule of evidence'. See Nisar Alli v. The State of Uttar Pradesh,
AIR (1957) SC 366. Merely because some of the accused persons have been
acquitted, though evidence against all of them, so far as direct testimony
went, was the same does not lead as a necessary corollary that those who
have been convicted must also be acquitted. It is always open to a Court to F
differentiate accused who had been acquitted from those who were convicted.
See Gurucharan Singh and Anr. v. State of Punjab, AIR (I 956) SC 460. The
doctrine is a dangerous one specially in India for if a whole body of the
testimony were to be rejected, because witness was evidently speaking an
untruth in some aspect, it is to be feared that administration of criminal
justice would come to a dead-stop. Witnesses just cannot help in giving G
embroidery to a story, however, true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence is worthy of acceptance,
and merely because in some respects the Court considers the same to be
insufficient for placing reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be disregarded in all respects H
194 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A as well. The evidence has to be shifted with care. The aforesaid dictum is not
a sound rule for the reason that one hardly comes across a witness whose
evidence does not contain a grain of untruth or at any rate exaggeration,
embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The
State of Madhya Pradesh, (1972] 3 SCC 751 and Ugar Ahir and Ors. v. The
B State of Rihar, AIR (1965) SC 277. An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate grain from the chaff, truth
from falsehood. Where it is not feasible to separate truth from falsehood,
J
because grain and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed by divorcing essential
details· presented by the prosecution completely from the context and the
C background asainst which they are made, the only available course to be
made is to discard the evidence in tGto. See Zwinglee Ariel v. State ofMadhya,
Pradesh, AIR (1954) SC 15 and Ba/aka Singh and Ors. v. The State of
Punjab, AIR (I 975) SC 1962. As observed by this Court in State ofRajasthan
v. Smt. Kalki and Anr., AIR (1981) SC 1390, nonnal discrepancies in evidence
are those which are due to normal errors of observation, iiormal errors of
D memory due to lapse of time, due to mental disposition such as shock and
horror at the time of occurrence and those are always there however honest
and truthful a witness may be. Material discrepa111cies are those which are not
normal, and not expected of a normal person. Courts have to label the category
to which a discrepancy may be categorized. While normal discrepancies do
E not corrode the credibility of a party's case, material discrepancies do so.
These aspects were highlighted recently in Krishna Mochi and Ors. v. State
of Bihar etc., JT (2002] 4 SC 186. Accusations have been clearly established
against accused-appellants in the case at hand. The Courts below have
categorically indicated the distinguishing features in evidence so far as
acquitted and convicted accused are concerned.
F
It is submitted that benefit of doubt should be given on account of co-
accused's acquittal. It was submitted that the evidence is inadequate to fasten
guilt, and therefore prosecution cannot be said to have established its case
beyond doubt.

G Exaggerated devotion to the rule of benefit of doubt must not nurture
fanciful doubts or lingering suspicion and thereby destroy social defence.
Justice cannot be made sterile on the plea that it is better to let hundred guilty
escape than punish an innocent. Letting guilty escape is not doing justice
according to law. See: Gurbachan Singh v. Satpal Singh and Ors., AIR
H (1990) SC 209. Prosecution is not required to meet any and every hypothesis
GANGADHAR BEHERA v. STAT£0F ORISSA [ARIJITPASAYAT, J.] 195

put forward by the accused. See State of UP. v. Ashok Kumar Srivastava, A
AIR (1992) SC 840. A reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt based upon reason and common sense. It
must grow out of the evidence in the case. If a case is proved perfectly, it is
• argued that it is artificial; if a case has some flaws inevitable because human
beings are prone to err, it is argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to eliminate a rare innocent from B
being punished, many guilty persons must be allowed to escape. Proof beyond
reasonable doubt is a guideline, not a fetish. See Jnder Singh and Anr. v.
State (Delhi Admn.), AIR (1978) SC 1091. Vague hunches cannot take place
of judicial evaluation. "A judge does not preside over a criminal trial, merely
to see that no innocent man is punished. A judge also presides to see that a C
guilty man does not escape. Both are public duties." (Per Viscount Simon in
Stir/and v. Director of Public Prosecution, (1944) AC (PC) 315) quoted in
State of UP. v. Anil Singh, AIR (1988) SC 1998. Doubts would be called
reasonable if they are free from a zest for abstract speculation. Law cannot
afford any favourite other than truth.
D
In matters such as this, it is appropriate to recall the observations of this
Court in Shivaji Sahebrao Bobade v. State of Maharashtra, [1974] I SCR
489 (492-493 )] :

" ..... .The dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence and to the soothing sentiment E
that all acquittals are always good regardless of justice to the victim
and the community, demand especial emphasis in the contemporary
context of excalating crime and escape. The judicial instrument has
a public accountability. The cherished principles or golden thread of
proof beyond reasonable doubt which runs through the web of our F
law should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt... .... "

" ..... The evil of acquitting a guilty person light-heartedly as a
learned author Glanville Williams in 'Proof of Guilt' has sapiently
observed, goes much beyond the simple fact that, just one guilty G
person has gone unpunished. If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against
indicted 'persons' and more severe punishment of those who are
found guilty. Thus too frequent acquittals of the guilty may lead to
a ferociou penal law, eventually eroding the judicial protection of the H
196 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A guiltness ..... "

" ....... a miscarriage of justice may arise from the acquittal of the
guilty no less than from the conviction of the innocent... .. "

The position was again illuminatingly highlighted in State of UP. v. •
B Krishna Gopa/, AIR (I 988) SC 2154.
At this juncture, it would be appropriate to deal with the plea that
ocular evidence and medical evidence are at variance. It would be erroneous
ll accord undue primacy to the hypothetical answers of medical witnesses .to
exllude the eye-witnesses' account which had to be tested independently and
C not t:eated as the "variable" keeping the medical evidence as the "constant".

' Krishna Gopal's case (supra), the position has been succinctly stated
as follows:

"It is trite that where the eye-witnesses' account is found credible
D and trustworthy, medical opinion pointing to alternative possibilities
is not accepted as conclusive. Witnesses, as Bantham said, are the
eyes and ears of justice. Hence the importance and primacy of the
quality of the trial process. Eye witnesses' account would require a
careful independent assessment and evaluation for their credibility
which should not be adversely prejudged making any other evidence,
E including medical evidence, as the sole touchstone for the test of such
credibility. The evidence must be tested for its inherent consistency
and the inherent probability of the story; consistency with the account
of other witnesses held to be credit-worthy; consistency with the
undisputed facts the 'credit' of the witnesses; their performance in
F the witness-box; their power of observation etc. Then the probative
value of such evidence becomes eligible to be put into the scales for
a cumulative evaluation.

, A person has, no doubt, a profound right not to be convicted of
an offence which is not established by the evidential standard of
G proof beyond reasonable doubt. Though this standard is a higher
standard, there is, however, no absolute standard. What degree of
probability amounts to 'proof is an exercise particularly to each
case. Referring to of probability amounts to 'proof is an exercise the
inter-dependence of evidence and the confirmation of one piece of
evidence by another a learned author says: (See "The Mathematics of
H
GANGADHAR BEHERA v. STATE OF ORIS SA [ARIJIT PASA YAT, J.] 197

Proof II" : Glanville Williams: Criminal Law Review, 1979 by Sweet A
and Maxwell, p. 340 (342).

"The simple multiplication rule does not apply if the separate
pieces of evidence are dependent. Two events are dependent when
they tend to occur together, and the evidence of such events may also
be said to be dependent. In a criminal case, different pieces of evidence B
directed to establishing that the defendant did the prohibited act with
the specified state of mind are generally dependent. A juror may feel
doubt whether to credit an alieged confession, and doubt whether to
infer guilt from the fact that the defendant fled from justice. But since
it is generally guilty rather than innocent people who make confessions, C
and guilty rather than innocent people who run away, the two doubts
are not to be multiplied together. The one piece of evidence may
confinn the other."

Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth. D
To constitute reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substantial doubts as to the guilt
of the accused person aris!ng from the evidence, or from the lack of
·it, as opposed to mere vague apprehensions. A reasonable doubt is
not an imaginary, trivial or a merely possible doubt; but a fair doubt
based upon reason and commonsense. It must grow out of the evidence E
in the case.

The concepts of probability, and the degrees of it, cannot obviously
be expressed in tenns of units to be mathematically enumerated as to
how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the F
degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and, ultimately
on the trained intuitions of the judge. While the protection given by
the criminal process to the accused persons is not to be eroded, at the
same time, uninformed legitimization of trivialities would make a G
mockery of administration of criminal justice."

Another plea which was emphasized relates to the question whether
Section 149, !PC has any application for fastening the constructivll liability
which is the sine qua non for its operation. The emphasis is on the common
object and not on common intention. Mere presence in an unlawful assembly H
198 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A cannot render a person liable unless there was a common object and he was
actuated by that common object and that object is one of those set out in
Section 14 I. Where common object of an unlawful assembly is not proved,
the accused persons cannot be convicted with the help of Section 149. The
crucial question to determine is whether the assembly consisted of five or
B more persons and whether the said persons entertained one or more of the
common objects, as specified in Section 141. It cannot be laid down as a
general proposition of law that unless an ov.ert act is proved against a person,
who is alleged to be a member of unlawful assembly, it cannot be said that
he is a mem.ber of an assembly. The only thing required is that he should
have understood that the assembly was unlawful and was likely to commit
C any of the acts which fall within the purview of Section 141. The word
'object' means the purpose or design and, in order to make it 'common', it
must be shared by all. In other words, the object should be common to the
persons, who compose the assembly, that is to say, they should all be aware
of it and concur in it. A common object may be formed by express agreement
after mutual consultation, but that is by no means necessary. It may be
D formed at any stage by all or a few members of the assembly and the other
members may just join and adopt it. Once formed, it need not continue to be
the same. It may be modified or altered or abandoned at any stage. The
expression 'in prosecution of common object' as appearing in Section 149
have to be strictly construed as equivalent to 'in order to attain the common
E 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 have community of object up to certain point beyond
which they may differ in their objects and the knowledge, possessed by each
member of what is likely to be committed in prosecution of their common
F object may vary not only according to the information at his command, but
also according to the extent to which he shares the community of object, and
as a consequence of this the effect of Section 149, !PC may be different on
different members of the same assembly.

G 'Common object' is different from a 'common intention' as it does not
require a prior concert and a common meeting of minds before the attack. It
is enough if each has the same object in view and their number is five or
more and that they act as an assembly to achieve that object. The 'commo~
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
H circumstances. It may be gathered from the course of conduct adopted by the
GANGADHARBEHERA v. STATE OF ORlSSA [ARIJIT PASAYAT,.1.] 199

members of the assembly. What the common object of the unlawfol assembly A
is at a particular stage of the incident is essentially a question of fact to be
determined, keeping in view the nature of the assembly, the arms carried by
the members, and the behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases of unlawful assembly,
with an unlawful common object, the same must be translated into action or B
be successful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful. It
is not necessary that the intention or the purpose, which is necessary to
render an assembly an unlawful one comes into existence at the outset. The
time of fonning an unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful, may subsequently C
become unlawful. In other words it can develop during the course of incident
at the spot co instanti.

Section 149, JPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object
must be one which is committed with a view to accomplish the common D
object. In order that the offence may fall within the first part, the offence
must be connected immediately with the common object of the unlawful
assembly of which the accused was member. Even if the offence committed
is not in direct prosecution of the common object of the assembly, it may yet
fall under Section 141, if it can be held that the offence was such as the E
members knew was likely to be committed and this is what is required in the
second part of the section. The purpose for which the members of the assembly
set out or desired to achieve is the object. If the object desired by all the
members is the same, the knowledge that is the object which is being pursued
is shared by all the members and they are in general agreement as to how it
i~ to be achieved and that is now the common object of the assembly. An F
object is entertained in the human mind, and it being merely a mental attitude,
no direct evidence can be available and, like intention, has generally to be
gathered from the act which the person commits and the result therefrom.
Though no hard and fast rule can be laid down under the circumstances from
which the common object can be called out, it may reasonably be collected G
from the nature of the assembly, arms it carries and behaviour at or before
or after the scene of incident. The word 'knew' used in the second 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
generally be an offence which the members of the unlawful assembly knew H
200 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A was likely to be committed in prosecution 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 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
B offence committed falls within the first part or it was an offence such as the
members ofthe 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 first offences committed in prosecution of
the common object would be generally, if not always, with the second, namely,
offences which the parties knew to be likely committed in the prosecution of
C the common object. See Chikkarange Gowda and Ors. v. State of Mysore,
AIR (1956) SC 731.

The other plea that definite roles have not been ascribed to the accused
and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench
of this Court in Masai ti's case (supra) observed as follows:
D
"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 of an unlawful assembly proceeds to commit an offence
E of murder in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe accurately
the part played by each one of the assailants. Besides, if a large
crowd of persons armed with weapons assaults the intended victims,
it may not be necessary that all of them have to take part in the actual
F 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 kill 5 persons. In such a
case; it would be unreasonable to contend that because the other
weapons carried by the 111embers of the unlawful assembly were not
used, the story in regard to the said weapons itself should be rejected.
G Appreciation of evidence in such a complex case is no doubt a difficult
task; 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 not."

To sirriilar effect is the observation in Lalji v. State of UP., [1989] 1
H
GANGADHAR BEHERA v. STATEOFORISSA [ARl.JITPASAYAT, J.) 201

sec 437. It was observed that : A

"Common object of the unlawful assembly can be gathered from
the nature of the assembly, arms used by them and the behaviour of
the assembly at or before the scene of occurrence. It is an inference
to be deduced from the facts and circumstances of each case."
B
In State of U.P. v. Dan Singh and Ors., [1997] 3 SCC 747 it was
observed that it is not necessary for the prosecution to prove which of the
members of the unlawful assembly did which or what act. Reference was
made to Lalji's case (supra) where it was observed that "while overt act and
active participation may indicate common intention of the person perpetrating C
the crime, the mere presence in the unlawful assembly may fasten vicariously
criminal liability under Section 149".

Above being the position, we find no substance in the plea that evidence
of eye witnesses is not sufficient to fasten guilt by application of Section 149.
So far as the observations made in Kamaksha Rai 's case (supra), it is to be D
noted that the decision in the said case was rendered in a different factual
scenario altogether. There is always peril in treating the words of a judgment
as though they are words in a legislative enactment, and it is to be remembered
that judicial utterances are made in the setting of the facts of a particular
case. Circumstantial flexibility, one additional or different fact may make a E
world of'difference between conclusions in two cases (See Padamasundara
Rao (dead) and Ors. v. State of Tamil Nadu and Ors., JT (2002) 3 SC I). It
is more so in a case where conclusions relate to appreciatlon of evidence in
a criminal trial, as was observed in Krishna Mochi's case (supra).

The inevitable result of this appeal is dismissal which we direct. F
S.K.S. Appeal dismissed.