Supreme Court of India
MARANADU AND ANR.versusSTATE BY INSPECTOR OF POLICE, TAMIL NADU
- Citation
- 2008 INSC 1034
- Decided
- 15 September 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that credible testimony of relatives cannot be per se discarded and that the prosecution had proved a common object, making Section 149 IPC applicable, thereby upholding the convictions.
Summary
The case involved six accused who, armed with weapons and bombs, formed an unlawful assembly and murdered Sundaram. The trial court convicted them under Sections 147, 148, 149, 302, 307 IPC and Section 9(b)(1)(b) of the Indian Explosives Act, relying heavily on the testimony of two eyewitnesses who were close relatives of the deceased. On appeal, the accused argued that the relatives' evidence should be excluded as interested and that Section 149 IPC was inapplicable. The Supreme Court rejected these contentions, holding that a witness’s relationship to the victim does not automatically render the testimony unreliable if it is cogent and credible, and that the prosecution had established a common object sufficient to invoke Section 149. Consequently, the Court affirmed the trial court’s convictions and sentences, dismissing the appeal.
Issues considered
- The admissibility and credibility of testimony from witnesses who are relatives of the deceased.
- Whether Section 149 of the Indian Penal Code applies to the accused in the present facts.
- Whether the presence in an unlawful assembly without proof of a common object suffices for conviction under Section 149.
Legislation cited
- Explosives Act, 1884s. 9(b)(1)(b)
- Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302, s. 307, s. 34
Subjects
unlawful assemblycommon objectsection 149 IPCeyewitness testimonyinterested witnessIndian Explosives Actmurder convictionevidence credibility
Judgment
[2008] 13 S.C.R. 487
J..
MARANADU AND ANR. A
v.
STATE BY INSPECTOR OF POLICE, TAMIL NADU
(Criminal Appeal No. 494 of 2001)
SEPTEMBER 15, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.]
·Penal Code, 1860; Ss. 141, 147, 148, 149, 302 and 3071
Indian Explosive Act; S.9(b)(1)(b): c
Unlawful assembly - Assault and murder - Conviction
of six accused persons fo[ committing murder of deceased
relying upon testimony of relative eye-witnesses - Correct-
ness of-Held: Merely because eyewitnesses are family mem-
bers!relatives of deceased, their evidence cannot per se be D
discarded, if found cogent and credible - It would be
unpragmatic to ignore the evidence of such natural witnesses
- On facts, in the light of evidence of witnesses and in terms of
settled law/principles set out by the Supreme Court in various
decisions, trial Court rightly convicted and sentenced the ac- E
cused persons.
'Common Object' and 'Common intention' - Distinction
between - Discuss.ed.
'"i Words and Phrases: F
'Common Object' and 'Common intention' - Meaning of
in the context of Ss. 141, 148 and 149 /PC.
According to the Prosecution, on the fateful day, ac-
cused persons six in number armed with deadly weap- G
ons and also carrying bombs assembled unlawfully and
attacked the deceased and others with the common in-
tention of committing the murder and injured him. The
deceased succumbed to the injuries. Police registered the
487 'H
488 SUPREME COURT REPORTS [2008] 13 S.C.R.
A case against the accused persons for committing the of-
fences of assault, murder by forming unlawful assembly
and for keeping explosives. Trial Court found the accused,
including appellants A5 and AG guilty of committing the
offences punishable u/ss. 147, 148, 302 r/w s. 149 IPC and
B also U/s.307 IPC and sentenced them accordingly. Ap-
peals preferred thereagainst by appellants A5 and AG were
dismissed by the High Court. Hence the present appeal.
Accused-appellants contended that the evidence of
PWs 1 and 2 should not have been relied on because they
C are interested witnesses being related to the deceased;
that even if the evidence of PWs 1 and 2 is accepted they
cannot be related to the fatal injuries and the injuries were
not caused to the deceased; and that A-5 i.e. appellant
No.1 in the present case had only thrown a bomb at PW-
D 2 who sustained injuries on his cheek and left chest and
A-G i.e. appellant No.2 in the present appeal threw a bomb
which did not explode; and that in the facts and circum-
stances of the case, s.149 IPC has no application.
Dismissing the appeal, the Court
E
HELD: 1.1 Merely because the eye-witnesses are
family members their evidence cannot per se be dis-
carded. When there is allegation of interestedness, the
same has to be established. Mere statement that being
F relatives of the deceased they are likely to falsely impli-
cate the accused cannot be a ground to discard the evi-
dence which is otherwise cogent and credible. (Para - 7)
(494-H; 495-A]
1.2 Relationship is not a factor to affect credibility of a
G witness. It is more often than not that a relation would not
conceal actual culprit and make allegations against an in-
nocent 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
H whether it is cogent and credible. (Para - 7) (495-8 & C]
MARANADU & ANR. v. STATE BY INSPECTOR 489
"" ~ OF POLICE, TAMIL NADU
Dalip Singh and Ors. v. The State of Punjab AIR (1953) A
SC 364; Guli Chand and Ors. v. State of Rajasthan (197 4) 3
SCC 698; Vadive/u Thevar v. State of Madras AIR (1957) SC
614; Masalti and Ors. v. State of UP. AIR (1965) SC 202;
State of Punjab v. Jagir Singh AIR (1973) SC 2407; Lehna v.
,.J State of Haryana (2002) 3 SCC 76; Gangadhar Behera and B
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 -
relied on.
1.3 The over insistence on witnesses having no rela- c
tion with the victims often results in criminal justice going
away. When any incident hap~ens in a dwelling house the
most natural witnesses would be the inmates of that house.
It is unpragmatic to ignore such natural witnesses and in-
~
sist on outsiders who would not have even seen any thing. D
Merely on surmises the Court should not castigate a pros-
ecution for not examining other persons of the locality as
prosecution witnesses. (Para-14) [497-B,C & E]
State of Rajasthan v. Teja Ram and Ors. AIR (1999) SC
1776 - relied on. E
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 ob-
..., ject is one of those set out in s.141 IPC. Where common F
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 assem-
bly consisted of five or more persons and whether the said
persons entertained one or more of the common objects,
G
as specified in Section 141. It cannot be laid down as a
general proposition of law that unless an overt act is
'ii proved against a person, who is alleged to be a member of
unlawful assembly, it cannot be said that he is a member
of an assembly. (Para - 16) [4'97-G-H; 498-A-B]
H
490 SUPREME COURT REPORTS [2008] 13 S.C.R.
A 2.2 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 agree-
ment after mutual consultation, but that is by no means
necessary. It may be formed at any stage by all or a few
8 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. (Para - 16) [498-C-E]
2.3 'Common object' is different from 'common in-
c tention' as it does not require a prior concert and a com-
mon meeting of minds before the attack. (Para-17) [498-
H; 499-A]
2.4 Under the Explanation to Section 141, an assem-
bly which was not unlawful when it was assembled, may
D subsequently become unlawful. It is not necessary that
the intention or the purpose, which is necessary to ren-
der 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
E 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 co instanti. (Para-17)
[499-D,E & F]
2.5 Section 149 IPC consists of two parts. The first
F part of the section means that the offence to be commit-
ted in prosecution of the common object must be one
which is committed with a view to accomplish the com-
mon 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
G 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 members knew was
likely to be committed and this is what is required in the
H second part of the section. The purpose for which the
MARANADU & ANR. v. STATE BY INSPECTOR 491
OF POLICE, TAMIL NADU
members of the assembly set out or desired to achieve is A
the object. (Para - 18) [499·G-H; 500-A·B]
2.6 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
.J.
committed falls within the first part or it was an offence B
such as the members of the assembly knew to be likely
to be committed :n 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 commit·
ted in prosecution of the common object would be gener- C
ally, if not always, be within the second part, namely, offences
. which the parties knew likely to be committed in the ptos·
ecution of the common object. (Para-18) (500-F-H]
Chikkarange Gowda and others v. State of Mysore AIR D
(1956) SC 731; State of UP v. Dan Singh and Ors. (1997) 3
SCC 747 and Gangadhar Behera and Ors. v. State of Orissa
(2002) 8 sec 381- relied on.
3. When the factual scenario is considered in the
background of the principles as set out, the inevitable con- E
clusion is that Section 149 IPC is clearly applicable, as
has been rightly held by the trial Court and the High Court.
(Para .. 21) (501-D]
Case Law Reference
F
AIR (1953) SC 364 Relied on Para.;... 8
(1974) 3 sec 698 Relied on Para - 9
AIR (1957) SC 614 Relied on Para - 9
AIR (1953) SC 364 Relied on Para - 8
G
AIR (1965) SC 202 Relied on Para-11
AIR (1973) SC 2407 Relied on Para-12
(2002) 3 sec 16 Relied on Para-12
(2002) s sec 381 Relied on Para - 12 H
492 SUPREME COURT REPORTS [2008] 13 $.C.R.
A (2005) 1o sec 404 Relied on Para~ 13
(2001) 1 sec 699 Relied on Para -13
AIR (1999) SC 1776 Relied on Para -14
AIR (1956) SC 731 Relied on Para - 18
B (1997) 3 sec 747 Relied on Para -19 -\.,
(2002) 8 sec 381 Relied on Para - 20
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 494 of 2001
c From the final Judgment and Order 28.8.2000 of the High
Court of Judicature at Madras in Crl. Appeal No. 822 of 1990
S. Nanda Kumar, S. Lakshmi, S. Babu and L.K. Pandey
for the Appellants.
D V. Kanagaraj, R. Nedumaran, Anukul Raj and V.G.
Pragasam for the Respondent.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. In this appeal challenge is to
E the judgment of a Division Bench of the Madras High Court dis-
missing the appeal filed by the appellants who were appellant
nos. 5 and 6 before it and before the trial Court they were ac-
cused Nos. 5 and 6. Before the trial Court there were six ac-
cused persons. After finding them guilty of various offences the
F trial Court recorded the conviction and imposed sentences in r
the following manner:
"A-1 is found guilty of charges under Section 147 IPC and
sentenced to 2 years rigorous imprisonment. A-2 to A-6
are found guilty of charge under Section 148 IPC and
G
each one of them is sentenced to 2 years RI. A 1, A-2 and
A-4 are found guilty of the charge under Section 302 IPC
read with Section 34 and each one of them is sentenced
to life imprisonment. A3, A5 and A6 are found guilty of the
charge under Section 302 IPC read with Section 149 and
H
MARANADU & ANR. v. STATE BY INSPECTOR 493
OF POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
each one of them is sentenced to life imprisonment. A3 is A
found guilty of the charge under Section 307 IPC and
sentenced to 5 years RI. A5 is found guilty of the charge
under Section 307 IPC and sentenced to 5 years RI. A6
is found guilty of the charge under Section 307 IPC and
,f sentenced to 5 years RI. A3, A5 and A6 are found guilty of B
the charge under Section 9(b)(1 (b) of the Indian Explosives
'
i Act and each one of them is sentenced to 2 years RI. The
above sentences shall run concurrently."
2. Background facts as highlighted by the prosecution are
as follows: c
The Inspector of Police; Usilampatti filed the charge sheet
l against the accused stating that due to previous enmity A1 to
A6 with common motive to commit murder of Sundaram (here-
inafter referred to as 'deceased') and the witnesses Annakodi
,. _., (PW-1), Ayyar (PW-2) and Mokkai, assembled unlawfully at
D
about 10.45 a.m. on 11.10.89 in front of the tea shop of Raju@
Raja opposite to Malayandi Theatre Usilampatti on Madurai-
Usilampatti main road. A2 to A6 were in possession of the dan-
gerous weapon Aruval and A3, A5 and A6 were in possession
of country made bombs and committed commotion along with E
A 1. Charges were framed against A1 under Section 147 IPC
and against A2 to A6 under Section 148 IPC and that in con-
tinuance of the commission of the said offence, A 1 caught hold
of the right hand of Sundaram and said "cut and kill him" and A4
~.
1 inflicted cut on the right hand of Sundaram with the aruval and F
further A2 to A4 inflicted cuts on neck of Sundaram indiscrimi-
nately and hence Sundaram died and charges were framed
against A1, A2 and A4 under Section 302 IPC and against A3,
A5 and A6 under Section 302 IPC read with Section 149 IPC.
When the witnesses Annakodi (PW-1 ), Ayyar (PW-2) and G
Mokkai who saw the falling down of Sundaram, A3, A5 and A6
ran away and with the motive of committing the murder, threw
..,.. the country bombs on them and hence the witnesses Annakodi
and Ayyar sustained injuries and charges were framed against
A3, A5 and A6 under Section 307 IPC and against A1, A2 and H
494 SUPREME COURT REPORTS (2008] 13 S.C.R.
....
A A4 under Section 307 IPC read with Section 149 and during
investigation it came to light that A3, AS and A6 were in pos-
session of country bombs without any valid license and hence r
charges were framed against A3, AS and A6 under Section
9(b)1 (b) of the Indian Explosives Act,1884 (in short the 'Explo-
B sives Act'). ..\'
On perusal of the records and documents in the case and
upon hearing the arguments of the Public Prosecutor and de-
fence counsel, trial court came to hold that there was sufficient
evidence to hold that the accused had committed the offences
c and the charges were framed.
3. The accused denied the accusations and were put on
trial.
4. The trial Court recorded the conviction and imposed
D sentences primarily placing reliance on the evidence of PW-1,
son of the deceased and PW-2 the brother-in-law of PW-1. The r-
conviction and the consequential sentences were challenged
before the High Court which as noted above dismissed the
appeal.
E S. In support of the appeal, learned counsel for the appel-
lants submitted that the evidence of PWs 1 and 2 should not
have been relied on because they are interested witnesses
being related to the deceased. In any event, Section 149 has
no application. It is further submitted that even if the evidence of
F PWs 1 and 2 is accepted they cannot be related to the fatal )"
1-
injuries and the injuries were not caused to the deceased. In
fact it is stated that A-5 i.e. appellant No.1 in the present case
had only thrown a bomb at PW-2 who sustained injuries on his
cheek and left chest and A-6 i.e. appellant No.2 in the present
G appeal threw a bomb which did not explode.
6. Learned counsel for the respondent-State on the other
hand supported the judgments of the trial Court and the High
r
Court.
H 7. Merely because the eye-witnesses are family members
MARANADU & ANR. v. STATE BY INSPECTOR 495
~
OF POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
their evidence cannot per se _be discarded. When there is alle- A
gation 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 cog~nt and credible. We shall also
~J
deal with the contention regarding interestedness of the wit- B
nesses 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 make alle-
gations against an innocent person. Foundation has to pe laid
if plea of false implication is made. In such cases, the court hasc
to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible.
8. In Dalip Singh and Ors. v. The State of Punjab (AIR
1953 SC 364) it has been laid down as under:-
D
"A witness is normally to be considered independentunless
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
implicate him falsely. Ordinarily a close relation would be
the last to screen the real culprit and falsely implicate an E
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 foundation must be laid
'\ r
for such a criticism and the mere fact of relationship far F
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 G
prudence. There is no such general rule. Each case must
be limited to and be governed by its own facts."
' 9. The above decision has since been followed in Guli
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
H
496 SUPREME COURT REPORTS [2008) 13 S.C.R.
A which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
was also relied upon.
10. We may also observe that the ground that the witness
being a close relative and consequently being a partisan wit-
ness, should not be relied upon, has no substance. This theory
B was repelled by this Court as early as in Oalip 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 not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
c
"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
D
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 ona which another Bench of this Court
endeavoured to dispel in - 'Rameshwar v. State of
E 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."
11. Again in Masalti and Ors. v. State of U.P (AIR 1965
F SC 202) this Court observed: (p. 209-210 para 14):
r
"But it would, we think, be unreasonable to contend that
evidence 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
G 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
approach has to be cautious in dealing with such evidence;
but the plea that such evidence should be rejected because
H it is partisan cannot be accepted as correct."
MARANADU & ANR. v. STATE BY INSPECTOR 497
-..,- OF POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
12. To the same effect is the decisions in State of Punjab A
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 ).
13. The above position was also highlighted in Babula/
Bhagwan Khandare and Anr. v. State of Maharashtra [2005(10) B
'
,_>
SCC 404] and in Salim Saheb v. ·state of MP. (2007(1) SCC 699).
14. The over insistence on witnesses having no relation
with the victims often results in criminal justice going awry. When
any incident happens in a dwelling house the most natural wit- c
nesses would be the inmates of that house. It is unpragmatic to
ignore such natural witnesses and insist on outsiders who would
not have even seen any thing. If the Court has discerned from
the evidence or even from the investigation records that some
other independent person has witnessed any event connecting
D
-· the incident in question then there is justification for making
adverse comments against non-examination of such person as
prosecution witness. Otherwise, merely on surmises the Court
should not castigate a prosecution for not examining other per-
sons of the locality as prosecution witnesses. Prosecution can
be expected to examine only those who have witnessed the E
events and not those who have not seen it though the neighbor-
hood may be replete with other residents also. [See: State of·
Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)].
15. We shall next deal with the applicability of Section149 IPC. F
~
16. A plea which· was emphasized by the appellants re-
lates to the question whether Section 149, IPC has any appli-
. cation for fastening the constructive liability which is the sine
qua non for its operation. The emphasis is on the common ob-
ject and not on common intention. Mere presence in an unlaw- G
ful 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 ac-
cused persons cannot be convi9ted with the help of Section H
498 SUPREME COURT REPORTS [2008] 13 S.C.R.
A 149. The crucial question to determine is whether the assem-
bly consisted of five or more persons and whether the said per-
sons entertained one or more of the common objects, as speci-
fied in Section 141. It cannot be laid down as a general propo-
sition of law that unless an overt act is proved against a person,
B who is alleged to be a member of 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 was likely to commit any of the acts which fall
within the purview of Section 141. The word 'object' means the
c 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 formed at any stage
0
by all or a few members of the assembly and the other mem-
bers may just join and adopt it. Once formed, it need not con-
tinue to be the same. It may be modified or altered or aban-
doned at any stage. The expression 'in prosecution of common
object' as appearing in Section 149 have to be strictly construed
E 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 there-
after. Members of an unlawful assembly may have community
T
F 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 com-
mon object may vary not only according to the information at his
command, but also according to the extent to which he shares
G the community of object, and as a consequence of this the ef-
fect of Section 149, IPC may be different on different members
of the same assembly.
. 17. 'Common object' is different from 'common intention'
as it does not require a prior concert and a common meeting of
H
MARANADU & ANR. v. STATE BY INSPECTOR 499
--f·
OF POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
minds before the attack. It is enough if each has the sarne ob- A
ject 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 consideration of all the
_).
surrounding circumstances. It may be gathered from the course B
of conduct adopted by the members of the assembly. For de-
termination of the common object of the unlawful assembly, the
conduct of each of the members of the unlawful assembly, be-
fore and at the time of attack and thereafter, the motive for the
crime, are some of the relevant considerations. What the com- c
mon 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 nearthe
scene of the incident. It is not necessary undE!r law that in all
_..,.. D
cases of unlawful assembly, with an unlawful common objec!,~
the same must be translated into action or be successful. Un-
der 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 E
., .
into'existence at the outset. The time of forming an unlawful in-
tent 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
.-,. F
of incident at the spot co instanti.
18. Section 149, IPC consists of two parts. The first part
bf the section means that the offeljlce to be committed in pros-
ecution of the common object must be one i.:vhich is committed
with a view to accomp~sh the. common object. In order that the
G
offence may fall within the first part, the offence must be con-
nected immediately with the common object of the l.)nlawful as-
"i. sembly of which the accused was member. Even if th.e 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
H
500 SUPREME COURT REPORTS [2008] 13 S.C.R.
A 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 assem-
bly set out or desired to achieve is the object. If the object de-
sired by all the members is the same, the knowledge that is the
B 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 mental
attitude, no direct evidence can be available and, like intention,
C has generally to be gathered from the act which the person com-
mits and the result therefrom. Though no hard and fast rule can
be laid down under the circumstances from which the common
object can be culled out, it may reasonably be collected from
the nature of the assembly, arms it carries and behaviour at or
before or after the scene of incident. The word 'knew' used in ....
0
the second part 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 unlaw-
E ful 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 cases which would come within
the second part but not within the first part. The distinction be-
tween the two parts of Section 149 cannot be ignored or oblit-
F erated. 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 committed in prosecution of the common object and
falls within the second part. However, there may be cases which
G would be within the first part, but offences committed in pros-
ecution of the common object would be generally, if not always,
be within the second part, namely, offences which the parties
knew likely to be committed in the prosecution of the common
object. (See Chikkarange Gowda and others v. State of Mysore
H : AIR 1956 SC 731.)
MARANADU & ANR. v. STATE BY INSPECTOR 501
OF POLICE, TAMIL NADU [DR. ARIJIT PASAYAT, J.]
19. In State of UP. v. Dan Singh and Ors. (1997 (3) SCC A
"' 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 v. State of U.P.
)_ (1989 (1) sec 437) where it was observed that:
"while overt act and active participation may indicate B
common intention of the person perpetrating the crime,
the mere presence in the unlawful assembly may fasten
vicariously criminal liability under Section 149".
20. This position has been elaborately stated by this Court c
in Gangadhar Behera and Ors. v. State of Orissa (2002 (8)
sec 381).
21. When the factual scenario is considered in the back-
ground of the principles set out above the inevitable is that Sec~
tion 149 is clearly applicable as has been rightly held by the D
trial Court arid the High Court. The appeal is without merit, de-
. serves dismissal which we direct.
S.K.S. Appeal dismissed.
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