Holding

The Supreme Court held that the prosecution evidence was sufficient, a common object existed, s.149 IPC attracted, and none of the alleged procedural defects warranted overturning the convictions.

Summary

The case arose from a political mob attack on 29 January 2000 in which a group of accused assaulted two houses, resulting in the deaths of D‑1 and D‑2. The trial court convicted several accused under s.302 IPC and s.302 r.w. s.149 IPC; the High Court upheld the s.302 convictions but acquitted on s.149, holding that no common object existed. On appeal, the Supreme Court examined issues of FIR omissions, delay in witness examination, the applicability of s.149 IPC, the doctrine of falsus in uno falsus omnibus, and the need to explain injuries on the accused. It held that the FIR need not enumerate every detail or witness name, that the delay in examining witnesses was not fatal, that a common object was established and s.149 therefore attracted, and that the falsus doctrine does not mandate wholesale rejection of evidence. Consequently, the appeal was dismissed and the convictions affirmed.

Issues considered

The non‑mention of details or witness names in the FIR is fatal to the prosecution case
Whether delay in examination of eye‑witnesses vitiates the prosecution case
Whether Section 149 IPC applies – i.e., whether a common object of the unlawful assembly was proved
The applicability of the doctrine "falsus in uno falsus in omnibus" to reject the entire prosecution case
Whether the prosecution must explain injuries sustained by the accused

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 302, s. 323, s. 325, s. 452

Subjects

Section 302 IPCSection 149 IPCCommon objectUnlawful assemblyFalsus in uno falsus omnibusFIR omissionsWitness credibilityDelay in witness examinationInjuries to accused

Judgment

[2008] 12 S.C.R. 342

i: ,...,.
A GUNNANA PENTAYYA @ PENTADU & ORS.
V.
STATE OF A.P.
(Criminal Appeal No.292 of 2006)
AUGUST 20, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 4:-
SHARMA, JJ.]

Penal Code, 1860:
c s:302 r.w. s.149 - Conviction under - High Court
confirmed conviction under s. 302 however held that s. 149
not attracted - On appeal, Held: No infirmity in High Court.s
order - Conviction was based on evidence of wife and son
of deceased - They were natural witnesses and their presence
D in the house in the morning when incident took place cannot
be doubted.
f
s. 149 - Common object - Connotation of +
Common object and common intention - Distinction
E between.
Witness Eye-witnesses - Presence of Incident of murder
.._
took place in morning - Presence of wife/son of deceased r-

in the house - Held: Is natural and cannot be doubted.

F FIR : Non-mention of details in - Effect of - Held: Not '
fatal on prosecution case. -~-

Non-mention of name of eye-witness in - Effect on
prosecution case· - Held: Not fatal.

G Criminal trial:
Delay in examination of eye-witnesses - No question 4-
put to Investigating Officer regarding reason for delay-; Held:
Defence cannot take advantage therefrom - Delayllaches.

H 342
GUNNANA PENTAYYA@ PENTADU & ORS. v. 343
STATE OF A.P.
~ t Non-explanation of injuries on accused - Effect on A
prosecution case - Held: Not fatal when injuries sustained
by accused were minor or superficial.
Doctrines/Principle: "falsus in uno falsus in omnibus" -
Applicability of
B
Prosecution case was that on the day of incident at
~
~
6.30 A.M., all the accused persons A1 to A57 belonging
to a political party came in a mob to the house of D-2
and attacked him with dangerous weapons. Thereafter
they went to the house of D-1 and attacked him. c
Thereupon they went round the village and attacked the
Congress supporters P.W.4 to P.W.33.
P.W.1, wife and P.W.2 son of D-2, were eyewitnesses
for the attack on 0-2. P.W.3 wife of D-1, was the
eyewitness to the death of D-1. All the injured persons 0
were taken to hospital where Police recorded statement
of P.W.1. Charge-sheet was filed against A-1 to A-57 for
"" various offences including s.302 IPC. Trial Court
--' acquitted some of the accused persons and convicted
A-1 to A-7 under s.302 IPC and some other under s.302 E
r.w. s.149 IPC. On appeal, High Court acquitted the
accused persons in respect of s.302 read with s.149 IPC
holding that there was no common object, and
confirmed conviction under s.302 IPC as against Al to
A7 for causing death of D-2 and as against Al, AS, A12, F
A21 and A24 in respect of death of D-1. Hence the
.... present appeal by these 11 appellants.
Appellants contended that evidence of PW-1 was
unreliable because the complaint Ex.P1 was contrary to
what she deposed in Court and that details were not G
mentioned in the Ex.P-1; that the presence of PW 1 at
.-;. the place of incident was doubtful; that the statement of
PW1 that the accused persons told her that they will not
harm her is not believable; that the presence of PW 2
was not stated in Ex.P1 by. PW1 and also not stated in H
344 SUPREME COURT REPORTS [2008) 12 S.C.R.

A statement recorded under Section 161 Cr.P.C.; that the
evidence of PW2 was unreliable as his presence was
impossible and PW3 is also unreliable; that section 149
IPC was not attracted and that it was obligatory on the
part of High Court to convict the appellants according
B to their role and the injuries inflicted by them individually;
that evidence tendered by PW1 to a large extent was
not accepted and that would throw out entire
prosecution case and thus principle of "falsus in uno
falsus in omnibus" was applicable; and that there was
c a counter case and the injuries on the accused h~d not
been explained.
Dismissing the appeal, the Court
HELD: 1.1. So far as the non-mention of details in
Ex;P-1 is concerned, the first information report is not
0
encyclopedia of all details. In the instant case, all relevant
details have been indicated in the first information
report. High Court categorically held that the presence
of PW4 to 33 because of receipt of injuries by them was
established beyond all reasonable doubt. Therefore,
E there was no serious doubt about the evidence of PWs.
4 to 33. [Para 6] [353-CD]
Gauri Shanker Sharma v. State of UP AIR (1990) SC '
709 - relied on.
F 1.2. The incident in question took place on 29.1.2000
in the morning in the house of 02. Therefore, the
presence of PW1 who was his wife is natural. So far as
the evidence of PW3 is concerned, she stated that A1,
AB, A12, A21 and A24 came to her house. A1 hit her
G husband with a stout stick on his head. A24 beat with
him the stick and AB, A12 and A21 beat with sticks
indiscriminately on his body as a result of which 01
sustained grievous injuries. Except suggesting that A1,
AS, A12, A21 and A24 did not beat her husband, nothing
H has been elicited to discard her testimony. Her presence
GUNNANA PENTAYYA@ PENTADU & ORS. v. 345
STATE OF AP.
> -r--
\
~
also cannot be doubted because it was morning time A
' and the incident took place when 01 came out from his
house. Therefore, the evidence of PWs1 and 3 cannot
be doubted and discarded merely because 38 persons
have been named in the first information report. [Para 8]
[353-F-H, 354-A] B
t-
·•' 2. Mere non-mention of name of witness in Ex.P-1
does not render the prosecution version fragile. There
can be no hard and fast rule that names of witnesses,
more particularly, eye witnesses should be indicated in
the FIR. Even otherwise, though name of PW2 has not c
been specifically mentioned in the first information report,
it cannot be lost sight that he is the son of the deceased
and the incident took place in his house. His presence is
natural considering the time when the incident took place.
Though it was contended that there was delay in D
examination of PW2, the same is without substance.
~ Unless the investigating officer is categorically asked as
A to why there was delay in examination of the witness, the
defence cannot take advantage therefrom. In the instant
case, no question has been asked to the investigating E
officer PW53 regarding the reason for delay. There was
even no suggestion that PW2 was not present in the
house when the incident took place. [Para 9] [354-C-F]
State of Madhya Pradesh v. Mansingh (2003) 10 SCC
414; State of UP v. Satish (2005) AIR SCW 905 - relied on. F
-r
3.1. 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 s.141. Where common
G
object of an unlawful assembly is not proved, the
-J.e
accused persons cannot be convicted with the help of
s.149. It cannot be laid down as a general proposition of
law that unless an overt act is proved against a person,
who is alleged to be a member of unlawful assembly, it
H
346 SUPREME COURT REPORTS [2008] 12 S.C.R.

A cannot be said that he is a member of an assembly. The
word 'object' means the purpose or design and, in order
to make it 'common', it must be shared by all. A common
object may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may be
B 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 s~ge. The
expression 'in prosecution of common object' as appearing
C in s.149 have to be strictly construed as equivalent to 'in
order to attain the common object'. It must be immediately
connected with the common object by virtue of 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. [Para 10] [354-G H, 355-A-F]
0
3.2. '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. For determination of the common object of ~-

the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the
time of attack and thereafter, the motive for the crime,
G are some of the relevant considerations. What the
common object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to
be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
H
GUNl'JANA PENTAYYA@ PENTADU & ORS. v. 347
STATE OF A.P.

incident. Under the Explanation to Section 141, an A
assembly which was not unlawful when it was
assembled, may subsequently become unlawful. It is not
necessary that the intention or the purpose, which is
. necessary to render an assembly an unlawful one comes
into existence at the outset. The time of forming an B
unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is
lawful, may subsequently become unlawful. [Para 11]
[355-H, 356-A-E]
·Chikkarange Gowda and Ors. v. State of Mysore AIR 1956 C
SC 731; State of UP v. Dan Singh and Ors. 1997 (3) SCC
747; Lalji v. State of UP (1989) 1 SCC 437; Gangadhar Behera
and Ors. v. State of Orissa (2002) 8 SCC 381; Shivjee Singh
and Ors. v. State of Bihar 2008 (11) SCR 548 - relied on.
D
4.1. The plea of applicability of the principle of ''falsus
in uno falsus in omnibus" (false in one thing, false in
everything) 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, his conviction can
be maintained. Falsity of material particular would not ruin E
it from the beginning to end. The maxim "falsus in uno
falsus in omnibus" has no application in India and the
witness cannot be branded as liar. 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 F
disregarded. 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 what may be called 'a
mandatory rule of evidence. [Para 15] [358-F-H, 359-A B]
G
Nisar Alli v. The State of Uttar Pradesh AIR (1957) SC
366; Gurucharan Singh and Anr v. State of Punjab AIR (1956)
SC 460 - relied on.
4.2. The doctrine is a dangerous one specially in
India for if a whole body of the testimony were to be H
348 SUPREME COURT REPORTS [2008) 12 S.C.R.

A 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. Therefore, it has to be appraised in each case as
to what extent the evidence is worthy of acceptance,
B 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 respect as well. [Para 15] [359-C-E]
C Sohrab slo Beli Nayata and Anr. v. The State of Madhya
Pradesh (1972) 3 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; Ba/aka Singh and Ors. v. The
State of Punjab (1975) 4 SCC 511; State of Rajasthan v.
D Smt Kalki and Anr. (1981) 2 sec 752 - relie~ on.
I
4.3. Normal discrepancies in evidence are those ~
which are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
E occurrence and those are always there however honest
and truthful a witness may be. Material discrepancies
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
F discrepancies do not corrode the credibility of a party's
case, material discrepancies do so. [Para 15] [360-8-D]
5. Non-explanation of injuries by the prosecution
will not affect prosecution case where injurie~ sustained
G by the accused are minor and superficial or where the
evidence is· so clear and cogent, so independent and
dis·interested, so probable, consistent and creditworthy,
~
that it outweighs the effect of the omission on the part
of prosecution to explain the injuries. Prosecution is not ,
~

)
called upon in all casas to explain the injuries received
H
..
'
GUNNANA PENTAYYA@ PENTADU & ORS. v. 349
STATE OF A.P.

by the accused persons. It is for the defence to put A
questions to the prosecution witnesses regarding the
injuries of the accused persons. When that is not done,
there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. The
obligation of the prosecution to explain the injuries B
sustained by the accused in the same occurrence may
not arise in each and every case. If the witnesses
examined on behalf of the prosecution are believed by
the Court in proof of guilt of the accused beyond
reasonable doubt, question of obligation of prosecution c
to explain injuries sustained by the accused will not
arise. When the prosecution comes with a definite case
that the offence has been committed by the accused
and proves its case beyond any reasonable doubt, it
becomes hardly necessary for the prosecution to again
0
explain how and under what circumstances injuries have
been inflicted on the person of the accused. [Para 16]
[360-F,H, 361-A-E]
Krishna Machi and Ors. v. State of Bihar etc. (2002) 6
SCC 81; Sucha Singh v. State of Punjab (2003) 7 SCC E
643; Zahira H. Sheikh v. State of Gujarat (2004) 4 SCC
158; Ram Udgar Singh v. State of Bihar (2004) 10 SCC
443; Gorle S. Naidu v. State of Andhra Pradesh (2003) 12
SCC 449; Gubbala Venugopalswamy v. State of Andhra
Pradesh (2004) 10 SCC 120; Anil Kumar v. State of UP F
(2004) 13 sec 257 - relied on.
Case Law Reference
AIR (1990) SC 709 relied on Para 6
(2005) AIR sew 905 relied on Para 9 G
AIR 1956 SC 731 relied on Para 12
(1989) 1 sec 437 relied on Para 12
1997 (3) sec 147 relied on Para 12
(2002) 8 sec 381 relied on Para 12 H
350 SUPREME COURT REPORTS [2008] 12 S.C.R.

-t '-
A 2008 (11) SCR 548 relied on Para 12
AIR (1957) SC 366 relied on Para 15
AIR (1954) SC 15 relied on Para 15
AIR (1956) SC 460 relied on Para 15
B AIR 1965 SC 277 relied on Para 15
(1972) 3 sec 751 relied on Para 15 +
(1975) 4 sec 511 relied on Para 15
(1981) 2 sec 752 relied on Para 15
c (2002) 6 sec 81 relied on Para 16
(2003) 1 sec 643 relied on Para 16
(2003) 12 sec 449 relied on Para 16
(2004) 4 sec 158 relied on Para 16
D
(2004) 10 sec 120 relied on Para 16
(2004) 10 sec 443 relied on Para 16 f

(2004) 13 sec 2s1 relied on Para 16 ~

E CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 292 of 2006
From the final Judgment and Order dated 11.8.2005 of
the High Court of Judicature of Andhra Pradesh at Hyderabad
in Criminal Appeal No. 382 of 2003
F
M. Karpaga Vinayagam, Rajnish, A. Vinayagam Balan
and Dr. Kailash Chand for the Appellants.
1-

U.U. Lalit, A. Fatima and D. Bharathi Reddy for the
Respondents.
G
The Judgment of the Court was delivered by
~
DR.. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of the Division Bench of the A.ndhra Pradesh
High Court confirming the conviction of the dppellant punishable
t
H under Section 302 of the Indian Penal Code, 1860 (for short tI
t
GUNNANA PENTAYYA@ PENTADU & ORS. v. 351
STATE OF A.P. [DR.. ARIJIT PASAYAT, J.]

.. t 'IPC'),· so far as the appellants 1 to 7 are concerned. The A
others have been convicted for offence punishable under
Section 302 IPC.
2. Originally, there were 57 accused persons. Some of
them were acquitted by learned Sessions Judge, ,
Vizianagaram. The present appeal is filed by accused nos. 1 8
+ to 7, 8, 12, 21 and 24, A1, AB, A12, A21 and A24 were
~ convicted for homicidal death of Appalasamy (hereinafter
referred to as '01'). A1 and A7 were convicted for causing
death of Appallanaidu (02).
c
3. Prosecution version as unfolded during trial is as
follows:
Accused party belongs to a particular political party.
Prosecution party belonged to another political party. On
29.1.2000 around 6.30 A.M., all the accused persons Al to D
A57 came in a mob to the house of D-2 Appalanaidu and
attacked him with dangerous weapons. Then they went to D-
1's house and attacked him. Thereupon they went round the
village and attacked the Congress supporters P.W.4 to P.W.33.
P.W.1 Potnuru Laxminarayana the wife and P.W.2 son of D-2, E
are eyewitness for the attack on D-2. P.W.3 wife of D-1, is the
eyewitness to the death of D-1 .
The motive for the attack is that a love letter was sent by
son of A-47 to a girl, who was a relative of D-2. Due to this
there was a clash between the two groups. A case and counter F
cases were registered as Crime No.11 and 12 of.2000. Both
the parties were arrested. Thereafter there was rumour that
one person of the accused group was killed. So the entire
mob of the accused group came and attacked D-1, D-2 and
others. All the injured persons were taken to Hospital at G
Gajapathipuram.
P.W.53 Sub-Inspector of Police went to the hospital and
recorded the statement from P. W.1. The case was registered
as crime No.13 of 2000 for various offences including Section H
352 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 307 of IPC. On 31.1,2000, D-1 died. On 10.2.2000, D-2 died.
Case was altered to Section 302 IPC. P.W.53 Inspector of
Police took up the investigation. After investigation, charge
t
-
sheet was filed against Al to A57 for various offences including
Section 302 IPC. The Trial Court acquitted some of the
B accused persons and convicted Al to A7 for offence punishable
under Section 302 IPC and some other accused for the offence
punishable under Section 302 read with Section 149 for +
causing death to D-2 Appalanaidu. Trial Court convicted A-1,
A-8, A-12, A-21 and A-24 for offence punishable under Section
c 302 IPC and some other accused for offence under Section
302 read with Section 149 for causing death of D-1
Appalasamy. Other accused were convicted for the offences
punishable under Section 148, 325, 323, 452 for the individual
offences in respect of the injuries inflicted on the witnesses.
However, in appeal the High Court acquitted the accused
D
persons in respect of Section 302 read with Section 149
holding that there was no common object. The High Court .
confirmed the conviction for the offence under Section 302 (
IPC as against Al to A7 for causing death of D-2 and as
~
against Al, A8, A12, A21 and A24 in respect of death of D-1.
E Hence the appeal by these 11 appellants.

4. In support of the appeal, learned counsel for the
appellant submitted that PW's 1 evidence is unreliable
because the complaint Ex.P1 is contrary to what she deposed
F in Court. It was submitted that the overt acts individually for
the first time stated in court. Secondly, it is submitted that the
weapons purportedly used are not correctly stated by PW1.
Presence of PW 2 is not stated in Ex.P1 by PW1 and also
+
not stated in statement recorded under Section 161 of the
Code of Criminal Procedure, 1973 (in short the 'Code'). It is
G
further submitted that the statement of PW1 that the accused
persons told her that they will not harm her is not believable.
-:\.-
Since the prosecution case was that the people belonging to
a particular political party were to be attacked, there is no
reason as to why PWs 1, 2 and 3 were not attacked. Since
H
GUNNANA PENTAYYA@ PENTADU & ORS. v. 353
STATE OF A.P. [DR .. ARIJIT PASAYAT, J.]
' t the Trial Court and the High Court have found that the A
allegations were not fully established because some of the
accused persons were falsely implicated, the evidence of
witnesses is suspect. The evidence of PW2 is unreliable as
his presence is impossible and PW3 is also unreliable. There
was a counter case and the injuries on the accused had not B
been explained.
5. ~earned counsel for the .respondent-State on the other
hand supported the judgments of the courts below.
6. So far as the non-mention of the details in Ex.P1 is c
, concerned, the first information report is not supposed to be
encyclopedia of all details. In the instant case, all relevant
details have been indicated in the first information report. It is
to be noted that the High Court categorically held that the
presence of PW4 to 33 because of receipt of injuries by them
0
was established beyond all reasonable doubt. Therefore, there
was no serious doubt about the evidence of PWs. 4 to 33.
7. Learned counsel for the appellants submitted that
because of the admitted political rivalry and the relationship
of the PWs 1, 2 and 3 their evidence should have been E
rejected. This Court in Gauri Shanker Sharma v. State of
UP. (AIR 1990 SC 709) observed that unless there are sound
grounds to reject evidence of the so called interested witness
it would not be proper to hold that they are interested
witnesses. F
t B. As rightly noted by the High Court the incident in
question took place on 29.1.2000 in the morning in the house
of 02. Therefore, the presence of PW1 who was his wife is
natural. So far as the evidence of PW3 is concerned, she
stated thatA1, AB, A12, A21 and A24 came to her house. A1 G
hit her husband with a stout stick on his head. A24 beat with
him the stick and AB, A 12 and A21 beat with sticks
indiscriminately on his body as a result of which 01 sustained
grievous injuries. Except suggesting that A1, A8, A12, A21
and A24 did not beat her husband, nothing has been elicited H
354 SUPREME COURT REPORTS [2008] 12 S.C.R.

A to discard her testimony. Her presence also cannot be doubted i ~

because it was morning time and the incident took place when
01 came out from his house. Therefore, the evidence of PWs1
and 3 cannot be doubted and discarded merely because 38
persons have been named in the first information report.
B 9. So far as non-mention of name of PW2 is concerned,
in State of Madhya Pradesh v. Mansingh (2003 (10) SCC t
414) it was observed that mere non-mention of name of
witness does not render the prosecution version fragile. There
can be no hard and fast rule that names of witnesses, more
c particularly, eye witnesses should be indicated in the FIR. Even
otherwise, though name of PW2 has not been specifically
mentioned in the first information report, it cannot be lost sight
that he is the son of the deceased and the incident took place
in his house. His presence is natural considering the time
D when the incident took place. Though it was raised that there
was delay in examination of PW2, the same is without '
substance in view of what has been stated by this Court in <(
State of UP v. Satish (2005 AIR SCW 905). It was observed
that this Court in several decisions has held that unless the +
E investigating officer is categorically asked as to why there
was delay in examination of the witness, the defence cannot
take advantage therefrom. In the instant case, no question
has been asked to the investigating officer PW53 regarding
the reason for delay. There was even no suggestion that PW2
F was not present in the house when the incident took place.
10. A plea which was emphasized by the appellants -t
relates to the question whether Section 149, IPC has any
application for fastening the constructive liability which is the
sine qua non for its operation. The emphasis is on the common
G object and not on common intention. Mere presence in an
unlawful assembly cannot render a person liable unless there
was a common object and he was actuated by that common ~t-

object and that object is one of those set out in Section 141.
Where common object of an unlawful assembly is not proved,
H the accused persons cannot be convicted with the help of
•·•"jw~'~'· .~• -- •·- .. '
GUNNANA PENTAYYA@ PENTADU & ORS. v. 355
STATE OF AP. [DR.. ARIJIT PASAYAT, J.]
t Section 149. The crucial question to determine is whether the A
assembly consisted of five or more persons and whether the
said persons entertained one or more of the common objects,
as specified in Section 141. It cannot be laid down as a
general proposition of law that unless an overt act is proved
against a person, who is alleged to be a member of unlawful B
assembly, it cannot be said that he is a member of an
_;
assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to
commit any of the acts which fall within the purview of Section
141. The word 'object' means the purpose or design and, in c
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
D
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
-t
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 E
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 of an unlawful assembly may have F
-f· community of object up to certain point beyond which they
may differ in their objects and the knowledge, possessed by
each member of what is likely to be committed in prosecution
of their common object may vary not only according to the
r•
information at his command, but also according to the extent l..;J
,,'
to which he shares the community of object, and as a
'4~- consequence of this the effect of Section 149, IPC may be
different on different members of the same assembly.

11. 'Common object' is different from a 'common
H
356 SUPREME COURT REPORTS [2008] 12 S.C.R.

A intention' as it does not require a prior concert and a common t
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
s 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 assembly. For determination of the common object of
the unlawful assembly, the conduct of each of the members of
c the unlawful assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the relevant
considerations. What the common object of the unlawful
assembly is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in view the nature
of the assembly, the arms carried by the members, and the
D behaviour of the members at or near the scene of the incident.
It is not necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the same must be
translated into action or be successful. Under the Explanation +
to Section 141, an assembly which was not unlawful when it
E was assembled, may subsequently become unlawful. It is not
necessary that the intention or the purpose, which is necessary
to render an assembly an unlawful one comes into existence
at the outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or even
F for some time thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the course of +
incident at the spot co instanti.
12. 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 which is
committed with a view to accomplish the common object. In
order that the offence may fall within the first part, the offence
must be connected immediately with the common object oi
the unlawful assembly of wll!ch the accused was member.
H
GUNNANA PENTAYYA@ PENTADU & ORS. v. 357
STATE OF A.P. [DR.. ARIJIT PASAYAT, J.]
+
Even if the offence committed is not in direct prosecution of A
the common object of the assembly, it may yet fall under
Section 141, if it can be held that the offence was such as the
members knew was likely to be committed and this is what is
required in the second part of the section. The purpose for
which the members of the assembly set out or desired to 8
>- achieve is the object. If the object desired by all the members
1 is the same, the knowledge that is the object which is being
pursued is shared by all the members and they are in general
agreement as to how it is to be achieved and that is now the
common object of the assembly. An object is entertained in c
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
D
common object can be called out, it may reasonably be
., collected from the nature of the assembly, arms it carries and
behaviour at or before or after the scene of incident. The word
--+ 'knew' used in the second 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 E
knowledge is necessary. When an offence is committed in
prosecution of the common object, it would generally be an
offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common
object. That, however, does not make the converse proposition F
+ 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 offence committed falls within- the first part or it was an G
..... offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object
and falls within the second part. However, there may be cases
which would be within first part, but offences committed in
prosecution of the common object would be generally, if not H
358 SUPREME COURT REPORTS [2008) 12 S.C.R.

A always, be within the second part, namely, offences which the
t '
parties knew to be likely comr:nitted in the prosecution of the
common object. (See Chikkarange Gowda and others v. State
of Mysore : AIR 1956 SC 731.)
13. In State of UP v. Dan Singh and Ors. (1997 (3)
B sec 747) it was observed that it is not necessary for the
·--'l
prosecution to prove which of the members of the unlawful
assembly did which or what act. Reference was made to Lalji
v. State of UP (1989 (1) sec 437) where it was observed
that:
c
"while overt act and active participation may indicate
common intention of the person perpetrating the crime,
the mere presence in the unlawful assembly may fasten
vicariously criminal liability under Section 149".
D 14. This position has been elaborately stated by this
Court in Gangadhar Behera and Ors. v. State of Orissa (2002
(8) sec 381 and Shivjee Singh and Ors. v. State of Bihar r
(SLP (Crl.) No.1494/2004 disposed of on 30.7.2008).
+-
15. The next plea as noted above related to the acquittal
E
of number of persons. Stress was .laid by the accused-
appellants on the non-acceptance of evidence tendered by
PW1 to a large extent to contend about desirability to throw
out entire prosecution case. In essence prayer is to apply the
principle of "falsus in uno falsus in omnibus" (false in one
F 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, his conviction
can be maintained. It is the duty of Court to separate grain
from chaff. Where chaff can be separated from grain, it would
G be open to the Court to convict an accused notwithstanding
the fact that evidence has been found to be deficient, or to be
~
not wholly credible. Falsity of 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 witness or
H witnesses cannot be branded as liar(s). The maxim "falsus in
GUNNANA PENTAYYA@ PENTADU & ORS. v. 359
STATE OF AP. [DR.. ARIJIT PASAYAT, J.]
( +
r uno falsus in omnibus" has not received general acceptance A
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 may apply in a given set B
.... .)... of circumstances, but it is not what may be called 'a mandatory
1 rule of evidence. (See Nisar Alli v. The State of Uttar Pradesh
[AIR 1957 SC 366). In a given case, it is always open to a
Court to differentiate accused who had been acquitted from
those who were convicted where there are a number of
c
accused persons. (See Gurucharan Singh and Anr v. State
of Punjab [AIR 1956 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
D
of criminal justice would come to a 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
-t 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 E
of a witness, it does not necessarily follow as a matter of law
that it must be disregarded in all respect as well. The evidence
has to be sifted 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 F

.+ at any rate exaggeration, embroideries or embellishment. (See
Sohrab slo Beli Nayata and Anr v. The State of Madhya
Pradesh [1972 (3) SCC 751] and Ugar Ahir and Ors. v. The
State of Bihar [AIR 1965 SC 277). An attempt has to be
made to, as noted above, in terms of felicitous metaphor, G
separate grain from the chaff, truth from falsehood. Where it
...+- is not feasible to separate truth from falsehood, 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 H
360 SUPREME COURT REPORTS [2008) 12 S.C.R.

i-
A completely from the context and the background against which
they are made, the only available course to be made is to
discard the evidence in toto. (See Zwinglee Ariel v. State of
Madhya Pradesh [AIR 1954 SC 15] and Ba/aka Singh and
Ors. v. The State of Punjab [1975 (4) SCC 511]. As observed >-
)

B by this Court in State of Rajasthan v. SmL Kalki and Anr.
[1981 (2) sec 752], normal discrepancies in evidence are ~
those which are due to normal errors of observation, normal
r
errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of occurrence
c and those are always there however honest and truthful a
witness may be. Material discrepancies 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 not corrode the
credibility of a party's case, material discrepancies do so.
D
These aspects were highlighted in Krishna Machi and Ors. v.
State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh v. i'
State of Punjab [2003 (7) SCC 643]. It was further illuminated
in the Zahira H. Sheikh v. State of Gujarat [2004 (4) SCC +-
158), Ram Udgar Singh v. State of Bihar [2004(10) SCC
E 443], Gorle S. Naidu v. State of Andhra Pradesh [2003 (12)
SCC 449] and in Gubba/a Venugopa/swamy v. State of
Andhra Pradesh [2004 (10) SCC 120].
16. So far as the non-explanation of injury on the
F accused is concerned, in Anil Kumar v. State of UP (2004
(13) sec 257), it was held as follows:
+
"Non-explanation of injuries by the prosecution will not
affect prosecution case where injuries sustained by the
accused are minor and superficial or where the evidence
G is so clear and cogent, so independent and disinterested,
so probable, consistent and creditworthy, that it outweighs ~~
the effect of the omission on the part of prosecution to
explain the injuries. As observed by this Court in Ram!agan l
Singh v. State of Bihar (AIR 1972 SC 2593) prosecution
H is not called upon in all cases to explain the injuries
GUNNANA PENTAYYA@ PENTADU & ORS. v. 361
STATE OF A.P. [DR. ARIJIT PASAYAT, J.]
t
received by the accused persons. It is for the defence to A
put questions to the prosecution witnesses regarding the
injuries of the accused persons. When that is not done,
--.f. there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. In Hare
krishna Singh and Ors. v. State of Bihar (AIR 1988 SC B
-} 863), it was observed that the obligation of the prosecution
1 to explain the injuries sustained by the accused in the
same occurrence may not arise in each and every case.
--r In other words, it is not an invariable rule thatthe prosecution
has to explain the injuries sustained by the accused in the c
same occurrence. If the witnesses examined on behalf of
the prosecution are believed by the Court in proof of guilt
of the accused beyond reasonable doubt, question of
obligation of prosecution to explain injuries sustained by
the accused will not arise. When the prosecution comes
D
with a definite case that the offence has been committed
by the accused and proves its case beyond any reasonable
~
doubt, it becomes hardly necessary for the prosecution to
-of
again explain how and under what circumstances injuries
have been inflicted on the person of the accused. It is
more so when the injuries are simple or superficial in E
nature. In the case at hand, trifle and superficial injuries on
accused are of little assistance to them to throw doubt on
veracity of prosecution case. (See Surendra Paswan v.
State of Jharkhand (2003) 8 Supreme 476)."
F
-+ 17. The appeal is without merit, deserves dismissal,
which we direct.
D.G. Appeal dismissed.