Supreme Court of India
SANTOSH DEVIDAS BEHADE AND ORS.versusSTATE OF MAHARASHTRA
- Citation
- 2009 INSC 343
- Decided
- 6 March 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The conviction under Sections 147, 148, 302 read with Section 149 IPC is upheld as the prosecution established a common object and the evidence of the relatives and identification is admissible.
Summary
The Supreme Court dismissed the appeal of Santosh Devidas Behade and others, upholding their conviction under Sections 147, 148, 302 read with Section 149 of the IPC for the murder of Bharat Kharat. The Court held that the prosecution had proved a common object of the unlawful assembly, satisfying the requirements of Section 149, and that mere presence in such an assembly can attract liability. It rejected the contention that the testimony of the deceased's wife and son should be discarded merely because of familial relationship, emphasizing that credibility must be assessed on the basis of cogency, not relationship. The Court also clarified that a test identification parade, while useful, is not mandatory for admissibility of eyewitness identification, and the absence of such a parade does not vitiate the evidence. Consequently, the convictions were affirmed and the appeal dismissed.
Issues considered
- Whether Section 149 IPC applies when the common object of an unlawful assembly is not expressly proved.
- Whether mere presence in an unlawful assembly suffices for criminal liability under Section 149.
- Whether the testimony of witnesses who are relatives of the deceased can be disregarded as per se interested.
- Whether the absence of a test identification parade renders eyewitness identification inadmissible.
- Whether the evidence of PW-2 and PW-6 can be relied upon to sustain conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 162
- Indian Evidence Act, 1872s. 3, s. 9
- Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 302
Subjects
Section 149 IPCunlawful assemblycommon objecteyewitness testimonyidentification paradeIndian Evidence Actcriminal liabilitymurder conviction
Judgment
[2009] 4 S.C.R. 83
SANTOSH DEVIDAS BEHADE AND ORS. A
v
STATE OF MAHARASHTRA
Criminal Appeal No. 445 of 2009
....
MARCH 6, 2009 ·
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
JJ.]
Penal Code, 1860:
s.302 r!w 149- Conviction under- Upheld by High Court c
- Justification of - Held: On facts, justified.
ss.149 and 141 - Unlawful assembly- Common object
- Determination of - Relevant considerations - Discussed.
Evidence - Witness - Related witnesses - Appreciation
0
of - Held: Merely because the eye-witnesses were family
members their evidence could not be per se discarded -
When there is allegation of interestedness, the same has to
be established - Mere statement that being relatives of the
deceased they are likely to falsely implicate the accused
cannot be a ground to discard the evidence which is otherwise E
cogent and credible - Evidence Act, 1872 - s.3
Evidence Act, 1872 - s.9 - Evidence of identification -
Identification parade - Object of - Held: Is to test the memory
of the witnesses based upon first impression and also to enable F
the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime - It is desirable that a test
identification parade be conducted soon after arrest of the
accused - Code of Criminal Procedure, 1973 - s.162.
Challenge in the present appeal is to the judgment G
of the High Court upholding the conviction of the
appellants under s.302 rlw s.149 IPC.
The conviction of the appellants was challenged
83 H
84 SUPREME COURT REPORTS [2009] 4 S.C.R.
A before this Court on grounds that the evidence of PWs 2
and 6 should not have been acted upon by the Courts
below as they were wife and son of the deceased; that in
the Test Identification Parade only two accused appellants
were identified and that s.149 IPC was not applicable in
B the facts and circumstances of the case.
Dismissing the appeal, the Court
HELD:1.1. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common
c object and he was actuated by that common object and
that object is one of those set out in Section 141 IPC.
Where common object of an unlawful assembly is not
proved, the accused persons cannot be convicted with
the help of Section 149 IPC. [Para 5] [94-G-H]
D 1.2. The word 'object' means the purpose or design
and, in order to make it 'comm.,n', it must be shared by
all. In other words, the object should be common to the
persons, who compose the assembly, that is to say, they
should all be aware of it and concur in 1t. A common object
E may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may
be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt
it. Once formed, it need not continue to be the same. It
F may be modified or altered or abandoned at any stage.
The expression 'in prosecution of common object' as
appearing in Section 149 IPC have to be strictly construed
as equivalent to 'in order to attain the common object'. It
must be immediately connected with the common object
G 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
H and the knowledge, possessed by each member of what
SANTOSH DEVIDAS BEHADE AND ORS. V 85
STATE OF MAHARASHTRA
is likely to be committed in prosecution of their common A
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, IPC may be different on
different members of the same assembly. [Para 5] [95-C-H] B
1.3. '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 C
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 of conduct adopted by the members of the D
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, are some of the
relevant considerations. What the common object of the E
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 incident. It is not necessary under law F
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 was
assembled, may subsequently become unlawful. It is not G
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 for some time thereafter, is lawful,
H
86 SUPREME COURT REPORTS [2009] 4 S.C.R.
A may subsequently become unlawful. In other words it can
develop during the course of incident at the spot co
instanti. [Para 6] [95-G-H; 96-A-E]
1.4. Section 149, IPC consists of two parts. The first
part of the section means that the offence to be committed
8 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 of the unlawful assembly of which the
C 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
D 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
E general agreement as to how it is to be achieved and that
is now the common object of the assembly. An object is
entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available and,
--
like intention, has generally to be gathered from the act
F 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 from the nature
of the assembly, arms it carries and behaviour at or before
G 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
H of the common object, it would generally be an offence
SANTOSH DEVIDAS BEHADE AND ORS. V 87
STATE OF MAHARASHTRA
which the members of the unlawful assembly knew was A
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. [Para
7] [96-F-H; 97-A-E] B
1.5. The distinction between the two parts of Section
149 IPC 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 c
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 always, be within the second part, namely, offences D
t- which the parties knew to be likely committed in the
prosecution of the common object. [Para 7) [97-E-G)
Chikkarange Gowda and others v. State of Mysore AIR
(1956) SC 731; State of UP v. Dan Singh and Ors. 1997 (3)
SCC 747; Lalji v. State of UP 1989 (1) SCC 437; Gangadhar E
Behera and Ors. v. State of Orissa (2002 (8) SCC 381 and
Shivjee Singh and Ors. v. State of Bihar SLP (Crl.) No.1494/
~ 2004 disposed of on 30.7.2008 - relied on.
2.1. Merely because the eye-witnesses are family F
members their evidence cannot per se be discarded.
When there is allegation of interestedness, the same has
to be established. Mere statement that being relatives of
the deceased they are likely to falsely implicate the
accused cannot be a ground to discard the evidence
G
t which is otherwise cogent and credible. [Para 1O] [98-D-E]
2.2. 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 H
88 SUPREME COURT REPORTS [2009] 4 S.C.R.
A false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find •
out whether it is cogent and credible. [Para 10] [98-E-F]
Dalip Singh and Ors. v. The State of Punjab AIR 1953
SC 364: Guli Chand and Ors. v. State of Rajasthan 1974 (3)
B SCC 698; Vadivelu 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. State of
Haryana 2002 (3) SCC 76; Gangadhar Behera and Ors. v.
~
State of Orissa 2002 (8) SCC 381; Babula! Bhagwan Khandare
c and Anr. v. State of Maharashtra 2005(10) SCC 404; Salim
Saheb v. State of M.P 2007(1) SCC 699; Sane/al v. State of
M.P (SLP (Cr/.) No.3220 of 2007 disposed of on 22. 7.2008)
and Mohabbat and Ors. v. State of M.P (SLP (Crl.) No. 3251
of 2008) - relied on.
D
3.1. Identification tests do not constitute substantive
-I
evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that
their progress with the investigation into the offence is
proceeding on the right lines. The identification can only
E be used as corroborative of the statement in court. The
necessity for holding an identification parade can arise
only when the accused are not previously known to the
witnesses. The whole idea of a test identification parade
is that witnesses who claim to have seen the culprits at
F the time of occurrence are to identify them from the midst
of other persons without any aid or any other source. The
test is done to check upon their veracity. In other words,
the main object of holding an identification parade, during
the investigation stage, is to test the memory of the
G witnesses based upon first impression and also to enable
the prosecution to decide whether all or any of them could
..
be cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the CrPC and
H Indian Evidence Act, 1872. It is desirable that a test
SANTOSH DEVIDAS BEHADE AND ORS. V. 89
STATE OF MAHARASHTRA
identification parade should be conducted as soon as A
after the arrest of the accused. This becomes necessary
to eliminate the possibility of the accused being shown
to the witnesses prior to the test identification parade.
This is a very common plea of the accused and, therefore,
the prosecution has to be cautious to ensure that there is B
no scope for making such allegation. If, however,
circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution. [Para
17] [100-G-H; 101-A-D]
3.2. The facts, which establish the identity of the C
accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence
of a witness is the statement made in Court. The evidence
of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak D
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in Court as to the identity of the E
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the
Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other F
corroboration. [Para 18] [101-F-H; 102-A-B]
3.3. The identification parades belong to the stage of
investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right
upon the accused to claim, a test identification parade. G
They do not constitute substantive evidence and these
parades are essentially governed by Section 162 CrPC.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The
weight to be attached to such identification should be a H
90 SUPREME COURT REPORTS [2009] 4 S.C.R.
A matter for the Courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. [ Para 18] [102-B-D]
Matru v. State of UP 1971 (2) SCC 75; Santokh Singh
v. lzhar Hussain (1973 (2) SCC 406; Kanta Prashad v. Delhi
B Administration AIR 1958 SC 350; Vaikuntam Chandrappa and
others v. State of Andhra Pradesh AIR 1960 SC 1340; Budhsen
and another v. State of UP AIR 1970 SC 1321; Rameshwar
Singh v. State of Jammu and Kashmir AIR 1972 SC 102;
Jadunath Singh and another v. The State of Uttar Pradesh )
(1970) 3 SCC 518; Harbhajan Singh v. State of Jammu and
c Kashmir (1975) 4 SCC 480; Ram Nath Mahto v. State of Bihar
(1996) 8 SCC 630; Suresh Chandra Bahri v. State of Bihar
(1995) Supp (1)SCC 80; State of Uttar Pradesh v. Boota Singh
and others (1979) 1 SCC 31; Ramanbhai Naranbhai Patel
and others v. State of Gujarat (2000 (1) SCC 358;
D Malkhansingh and Others v. State of M.P 2003 (5) SCC 746
and Munshi Singh Gautam (dead) and Ors. v. State of MP
2005 (9) sec 631 - relied on.
Case Law Reference
AIR (1956) SC 731 relied on Para 7
E
1997 (3) sec 747 relied on Para 8
1989 (1) sec 437 relied on Para 8
2002 (8) sec 381 relied on Para 9
•
AIR 1953 SC 364 relied on Para 11
F
1974 (3) sec 698 relied on Para 12
AIR 1957 SC 614 relied on Para 12
AIR 1965 SC 202 relied on Para 14
AIR 1973 SC 2407 relied on Para 15
G
2002 (3) sec 76 relied on Para 15
2002 (8) sec 381 relied on Para 15
2005(1 O) sec 404 relied on Para 16
2001(1) sec 699 relied on Para 16
H
SANTOSH DEVIDAS BEHADE AND ORS. V. 91
STATE OF MAHARASHTRA
1971 (2) sec 75 relied on Para 17 A
1973 (2) sec 406 relied on Para 17
AIR 1958 SC 350 relied on Para 18
AIR 1960 SC 1340 relied on Para 18
AIR 1970 SC 1321 relied on Para 18 B
AIR 1972 SC 102 relied on Para 18
1970) 3 sec 518 relied on Para 19
1975) 4 sec 480 relied on Para 21
1996 8 sec 630 relied on Para 23 c
1995 Supp (1) sec 80 relied on Para 24
1979) 1 sec 31 relied on Para 25
2000 (1) sec 358 relied on Para 26
D
2003 (5) sec 746 relied on Para 27
,..
2005 (9) sec 631 relied on Para 27
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 445 of 2009
From the Judgement and Order dated 26.04.2005 of the E
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur in Criminal Appeal No. 314 of2001 with Criminal Appeal
No. 346 of 2001 .
..
Vijay Kumar (SCI, SC), for the Appellant.
F
Ravindra Keshavrao Adsure, for the Respondents.
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J!
1. Leave granted.
G
- t 2. Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court, Nagpur Bench, upholding the
conviction of the appellants for offences punishable under
Sections 147, 148, 302 read with Section 149 of the Indian Penal
Code, 1860 (in short the 'IPC'). By the impugned order two
H
92 SUPREME COURT REPORTS [2009] 4 S.C.R.
A Criminal Appeals i.e. Criminal Appeal Nos. 314/2001 and 346/
2001 were disposed of Accused persons are Namdev (A-1 ),
Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6).
The High Court by the impugned judgment dismissed the
appeals.
B 3. Background facts in a nutshell are as follows:
The Complainant-Chandrakalabai widow of Bharat Kharat
was a resident of Village Dharkanha. At the time of incident,
she was residing with her husband Bharat Mukinda Kharat
c (hereinafter referred to as the 'deceased') and two sons in the
house situated in the village Dharkanha. It is the case of the
prosecution that Shivcharan (PW6), son of the Complainant
Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai,
the keep of deceased Bharat and Shakuntalabai were residing
in the said house. On the day of incident, Shakuntala was not
D
present as she had gone to Pusad. At that time, work of uprooting
the groundnut crop was in progress in the field of deceased ...
Bharat and several persons from village Londhari were working
in his field. There was a pit dug in front of the house of Bharat
for construction of one room.
E th
On 7 June, 1998, at about 1.00 p.m., deceased Bharat
and one Tulshiram Vadar had gone to Pusad and returned home
at about 7 .00 p.m. After that, deceased Bharat was taking meal
in his house and Tulshiram went to sleep in front of the house. •
F After some time, at about 8.00 p.m. accused Namdev Tarpe
came to the house of the complainant and told Bharat that
persons from village Yehala were coming to beat him and he
should run away from the spot, or release the dogs. When Bharat
came out of the house, five to six persons encircled Bharat in
the courtyard of his house and started beating him. They were
G
armed with axes, sticks, crowbars and beat Bharat with the said ~
'
weapons. When Bharat was being assaulted, he shouted for
help loudly saying "Chandrakala, I am dying." The complainant-
Chandrakala went to Tulsiram and awakened him. Tulshiram
tried to rescue Bharat from the clutches of the accused; but the
H
SANTOSH DEVIDAS BEHADE AND ORS. V 93
. STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
accused did not allow him to help the deceased. The A
+ complainant Chandrakala thereafter went towards the persons
of village Londhari and stayed there along with her sons. The
assailants also came there and threatened them not to disclose
the incident and asked them to leave. The persons from village
Londhari thereafter left the place. The accused persons also B
left the place.
The complainant Chandrakala along with her sons went
near her husband deceased Bharat and noticed injuries on his
" person, who had already succumbed to those injuries on the
spot. The complainant asked her son Shivcharan (PW-6) the c
names of the assailants. Shivcharan told her that the assailants
were from village Yehala and gave their names as "Namdeo
Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade,
Sahebrao and one unknown person to whom he knew by face."
D
The complainant along with her sons thereafter went to
-'t'
the house of Police Patil of village Dharkanha and narrated the
incident. The complainant stayed there for the night and on the
next day, she went to Police Station, Pusad (Rural) and lodged
a report. In the report, she mentioned the names of five accused
persons and one unknown person. She also stated in the report E
that accused persons assaulted her husband because one year
before the incident, there were murders of one Atmaram and
• Laxman of village Yehala and in the said crime, her husband
deceased Bharat was arrested and, therefore, the assailants
for taking revenge of the said murders, and had assaulted Bharat F
in the incident in question. On the basis of the report lodged by
.the complainant investigation was undertaken. After completion
of investigation charge sheet was filed and as the accused
persons i.e. seven in number in two Criminal Appeals before
High Court pleaded innocence, trial was held. G
-1
It is to be noted that A-1 was absconding and therefore
separate charge sheet was filed against him. The trial Court
placed reliance on the evidence of Chandrakala (PW-2) and
Shivcharan (PW-6) and found the accused persons guilty.
H
94 SUPREME COURT REPORTS (2009) 4 S.C.R.
A In appeal, the primary stand of the accused persons was
~
that PWs 2 and 6 being related to the deceased their evidence
should not be acted upon particularly when Tulshiram and the
younger son of the deceased were not examined. Additionally,
it was submitted that in the Test Identification Parade (in short
8 the 'Tl Parade') held on 3.8.1998 only two accused persons
Sudam and Mangal were identified. Further, the evidence of
Shivcharan (PW-6) only relates to accused Shamrao and,
therefore, Section 149 has no application. It was also submitted
that PW-2 cannot be believed as she did not know the names l
c of the accused persons and the names were told to her by PW-
6. The trial Court did not analyse their evidence and held that
merely because PWs 2 and 6 were the wife and son of the
deceased that did not render their evidence suspect.
Additionally, the Tl parade was held only in respect of two
accused appellants Sudam and Mangal and not in respect of
D
other accused persons as they were allegedly known to the
prosecution witnesses.
...
Stand of State was that as others were known, there was
no need for Tl Parade. The fact situation clearly shows that
E Section 149 IPC has application.
4. In support of the appeal the stands taken before the
High Court are re-iterated by learned counsel for the appellants
and for the State.
F 5. A plea which was emphasized by the appellant 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 object and
not on common intention. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common object
G
and he was actuated by that common object and that object is
one of those set out in Section 141. Where common object of
an unlawful assembly is not proved, the accused persons cannot
be convicted with the help of Section 149. The crucial question
to determine is whether the assembly consisted of five or more
H
SANTOSH DEVIDAS BEHADE AND ORS. V. 95
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
persons and whether the said persons entertained one or more A
•- 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 assembly, it cannot be said that he is a member of
an assembly. The only thing required is that he should have s
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
order to make it 'common', it must be shared by all. In other
words, the object should be common to the persons, who c
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 by all or a few
members of the assembly and the other members may just join D
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 object'. It must be immediately
connected with the common object by virtue of the nature of the E
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 F
be committed in prosecution of their common 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,
IPC may be different on different members of the same assembly. G
6. 'Common object' is different from a 'common infention'
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
H
96 SUPREME COURT REPORTS (2009] 4 S.C.R.
A 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
of conduct adopted by the members of the assembly. For
B 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, are some of the relevant considerations. What the
common object of the unlawful assembly is at a particular stage
c 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 be successful. Under
0
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 forming an unlawful intent
E is not material. An assembly which, at its commencement or
even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the course
of incident at the spot co instanti.
F 7. Section 149, IPC 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 object. In
order that the offence may fall within the first part, the offence
G 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 members knew was
H likely to be committed and this is what is required in the second
SANTOSH DEVIDAS BEHADE AND ORS. V. 97
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
part of the section. The purpose for which the members of the A
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 is to be achieved
and that is now the commo.n object of the assembly. An object B
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 c
common object can be called out, it may reasonably be collected
from the nature of the assembly, arms it carries arid 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
0
'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 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· E
come within the second part but not withi_n fhe first part. The
distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue to be
determined, whether the offence committed falls within the first
part or it was an offence such as the members of the assembly F
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
always, be within the second part, namely, offences which the G
parties knew to be likely committed in the prosecution .of the
common object. (See Chikkarange Gowda and others v, State
of Mysore: AIR 1956 SC 731.)
8. In State of UP v Dan Singh and Ors. (1997 (3} SCC H
-
98 SUPREME COURT REPORTS [2009] 4 S.C.R.
A 74 7) 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 UP
( 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".
9. This position has been elaborately stated by this Court
c in Gangadhar Behera and Ors. v. State of Orissa (2002 (8)
SCC 381 and Shivjee Singh and Ors. v. State of Bihar (SLP
(Crl.) No.1494/2004 disposed of on 30.7 .2008)
10. Merely because the eye-witnesses are family members
their evidence cannot per se be discarded. When there is
D allegation of interestedness, the same has to be established.
Mere statement that being relatives of the deceased they are ,_
likely to falsely implicate the accused cannot be a ground to
discard the evidence which is otherwise cogent and credible.
We shall also deal with the contention regarding interestedness
E of the witnesses for furthering prosecution version. Relationship
is not a factor to affect credibility of a witness. It is more often
than not that a relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be
laid if plea of false implication is made. In such cases, the court
F has to adopt a careful approach and analyse evidence to find
out whether it is cogent and credible .
.11. In Dalip Singh and Ors. v. The State of Punjab (Al R
1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless
G
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
H
SANTOSH DEVIDAS BEHADE AND ORS. V. 99
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
innocent person. It is true, when feelings run high and there A
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
for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of truth. B
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 must c
be limited to and be governed by its own facts."
12. 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. D
13. 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 Oa/ip Singh's case
(supra) in which surprise was expressed over the impression E
which prevailed in the minds of the Members of the Bar that
rel"!tives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the F
High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an
.
-~
observat10.i is based on the fact that the witnesses are
women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded on the
G
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 another Bench of this Court
endeavoured to dispel ih - 'Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however,
H
100 SUPREME COURT REPORTS [2009] 4 S.C.R
A that it unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel."
14. Again in Masalti and Ors. v. State of UP (AIR 1965
SC 202) this Court observed: (p. 209-210 para 14):
B "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
on the sole ground that it is partisan would invariably lead
•
c 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
it 'is partisan cannot be accepted as correct."
D 15. To the same effect is the decisions in State of Punjab
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).
16. The above position was also highlighted in Babula/
E
Bhagwan Khandare and Anr. v. State of Maharashtra [2005(10)
SCC 404), Salim Saheb v. State of M.P (2007(1) SCC 699),
Sane/al v. State of M.P (SLP (Crl.) No.3220 of 2007 disposed
of on 22.7.2008) and Mohabbat and Ors. v. State of M.P (SLP
(Crl.) No. 3251 of 2008)
F
17. As was observed by this Court in Matru v. State of
UP (1971 (2) SCC 75) identification tests do not constitute
substantive evidence. They are primarily meant for the purpose
of helping the investigating agency with an assurance that their
progress with the investigation into the offence is proceeding
G
on the right lines. The identification can only be used as ~
corroborative of the statement in court. (See Santokh Singh v.
lzhar Hussain (1973 (2) sec 406). The necessity for holding
an identification parade can arise only when the accused are
not previously known to the witnesses. The whole idea of a test
H
SANTOSH DEVIDAS BEHADE AND ORS. V. 101
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
identification parade is that witnesses who claim to have seen A
the culprits at the time of occurrence are to identify them from
the midst of other persons without any aid or any other source.
The test is done to check upon their veracity. In other words, the
main object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses based B
upon first impression and also to enable the prosecution to
-Jecide whether all or any of them could be cited as eyewitnesses
of the crime. The identification proceedings are in the nature of
tests and significantly, therefore, there is no provision for it in
the Code of Criminal Procedure, 1973 (in short the 'Code') and c
Indian Evidence Act, 1872 (in short 'Evidence Act'). It is desirable
that a test identification parade should be conducted as soon
as after the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown to the
witnesses prior to the test identification parade. This is a very
0
common plea of the accused and, therefore, the prosecution
has to be cautious to ensure that there is no scope for making
such allegation. If, however, circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the
prosecution.
E
18. It is trite to say that the substantive evidence is the
evidence of identification in Court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in law
is well settled by a catena of decisions of this Court. The facts,
which establish the identity of the accused persons, are relevant F
under Section 9 of the Evidence Act. As a general rule, the
substantive evidence of a witness is the statement made in Court.
The evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of a
weak character. The purpose of a prior test identification, G
the efore. is to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence
to generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are
strangers to them, in the form of earlier identification
H
102 SUPREME COURT REPORTS [2009] 4 S.C.R.
A proceedings. This ru!e of prudence. however. is subject to
exceptions, when, for example, the Court is impressed by a
particular witness on whose testimony It can safely rely, without
such or other corroboration. The identification parades belong
to the stage of investigation, and there is no provision in the
B Code which obliges the investigating agency to hold or confers
a right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these parades
are essentially governed by Section 162 of the Code. Failure to
hold a test identification parade would not make inadmissible
c the evidence of identification in Court. The weight to be attached
to such identification should be a matter for the Courts of fact. In
appropriate cases it may accept the evidence of identification
even without insisting on corroboration. (See Kanta Prashad v.
Delhi Administration (AIR 1958 SC 350), Vaikuntam
Chandrappa and others v. State of Andhra Pradesh (AIR 1960
0
SC 1340). Budhsen and another v. State of UP (AIR 1970 SC
1321) and Rameshwa1 Singh v. State of Jamm,1 :ind Kashmir
(AIR 1972 SC 102).
19. In Jadunath Singh and another v. The State of Uttar
E Pradesh (1970) 3 SCC 518), the submission that absence of
test identification parade in all cases is fatal, was repelled by
this Court after exhaustive considerations of the authorities on
the subject. That was a case where the witnesses had seen the
accused over a period of time. The High Court had found that
F the witnesses were independent witnesses having no affinity
with deceased and entertained no animosity towards the
appellant. They had claimed to have known the appellants for
the last 6-7 years as they had been frequently visiting the town
of Bewar. This Court noticed the observations in an earlier
G unreported decision of this Court in Parkash Chand Sogani v.
The State of Rajasthan (Criminal Appeal No. 92 of 1956
decided on January 15, 1957), wherein it was observed ·
"It is also the defence case that Shiv Lal did not know the
appellant. But on a reading of the evidence of P.W. 7 it
H seems to us clear that Shiv Lal knew the appellant by
I
_,
SANTOSH DEVIOAS BEHADE AND ORS. V. 103
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
sight. Though he made a mistake about his name by A
referring to him as Kailash Chandra, it was within the
knowledge of Shiv Lal that the appellant was a brother of
Manak Chand and he identified him as such. These
circumstances are quite enough to show that the absence
of the identification parade would not vitiate the evidence. B
A person who is well-known by sight as the brother of
Manak Chand, even before the commission of the
occurrence, need not be put before an identification
parade in order to be marked out. We do not think that
there is any justification for the contention that the absence c
of the identification parade or a mistake made as to his
name, would be necessarily fatal to the prosecution case
in the circumstances."
20. The Court concluded:
D
"It seems to us that it has been clearly laid down by this
Court, in Parkash Chand Sogani v. The State of Rajasthan
(supra) (Al R Cri LJ), that the absence of test identification
in all cases is not fatal and if the accused person is well-
known by sight it would be waste of time to put him up for
identification. Of course if the prosecution fails to hold an E
identification on the plea that the witnesses already knew
the accused well and it transpires in the course of the trial
that the witnesses did not know the accused previously,
the prosecution would run the risk of losing its case."
F
21. In Harbhajan Singh v. State of Jammu and Kashmir
(1975) 4 sec 480), though a test identification parade was not
held, this Court upheld the conviction on the basis of the
identification in Court corroborated by other circumstantial
evidence. In that case it was found that the appellant and one
G
-t Gurmukh Singh were absent at the time of roll call and when
they were arrested on the night of 16th December, 1971 their
rifles smelt of fresh gunpowder and that the empty cartridge case
which was found at the scene of offence bore distinctive
markings showing that the bullet which killed the deceased was
H
104 SUPREME COURT REPORTS [2009] 4 S.C.R.
A fired from the rifle of the appellant. Noticing these circumstances
this Court held:-
"In view of this corroborative evidence we find no substance
in the argument urged on behalf of the appellant that the
Investigating Officer ought to have held an identification
B parade and that the failure of Munshi Ram to mention the
names of the two accused to the neighbours who came to
the scene immediately after the occurrence shows that
his story cannot be true. As observed by this Court in
Jadunath Singh v. State of UP (AIR 1971 SC 363)
c absence of test identification is not necessarily fatal. The
fact that Munshi Ram did not disclose the names of the
two accused to the villages only shows that the accused
were not previously known to him and the story that the
accused referred to each other by their respective names
D during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence-of
Munshi Ram alone and the corroborative circumstances
to which we have referred to above lend enough assurance
to the implication of the appellant."
E 22. It is no doubt true that much evidentiary value cannot
be attached to the identification of the accused in Court where
identifying witness is a total stranger who had just a fleeting
glimpse of the person identified or who had no particular reason
to remember the person concerned, if the identification is made
F for the first time in Court.
23. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC
630) this Court upheld the conviction of the appellant even when
the witness while deposing in Court did not identify the accused
G out of fear, though he had identified him in the test identification
parade. This Court noticed the observations of the trial Judge
who had recorded his remarks about the demeanour that the
witness perhaps was afraid of the accused as he was trembling
at the stare of Ram Nath -accused. This Court also relied upon
H the evidence of the Magistrate, PW-7 who had conducted the
SANTOSH DEVIDAS BEHADE AND ORS. V. 105
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
test identification parade in which the witness had identified A
the appellant. This Court found, that in the circumstances if the
Courts below had convicted the appellant, there was no reason
to interfere.
24. In Suresh Chandra Bahri v. State of Bihar (1995 Supp
(1) SCC 80), this Court held that it is well settled that substantive B
evidence of the witness is his evidence in the Court but when
the accused person is not previously known to the witness
concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an
assurance that the investigation is proceeding on right lines in C
addition to furnishing corroboration of the evidence to be given
by the witness later in Court at the trial. From this point of view it
is a matter of great importance, both for the investigating agency
and for the accused and a fortiori for the proper administration
of justice that such identification is held without avoidable and D
unreasonable delay after the arrest of the accused. It is in
adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution.
Thereafter this Court observed:-
"But the position may be different when the accused or a E
culprit who stands trial had been seen not once but for
quite a number of times at different point of time and places
which fact may do away with the necessity of a Tl parade."
25. In State of Uttar Pradesh v. Boota Singh and others F
(1979 (1) SCC 31), this Court observed that the evidence of
identification becomes stronger if the witness has an opportunity
of seeing the accused not for a few minutes but for some length
of ti_me, in broad daylight, when he would be able to note the
features of the accused more carefully than on seeing the G
accused in a dark night for a few minutes.
26. In Ramanbhai Naranb,hai Patel and others v. State of
Gujarat (2000 (1) sec 358) after considering the earlier
decisions this Court observed:-
H
106 SUPRE\~E:. COURT REPORTS [2009] 4 S.C.R.
A "It becomes at once clear that the aforesaid observations
were made in the light of the peculiar facts and
circumstances wherein the police is said to have given
the names of the accused to the witnesses. Under these
circumstances, identification of such a named accused
8 only in the Court when the accused was not known earlier
to the witness had to be treated as valueless. The said
decision, in turn, relied upon an earlier decision of this
Court in the case of State (Delhi Admn.) v. V C. Shukla
(AIR 1980 SC 1382) wherein also Fazal Ali, J. speaking
c for a three-Judge Bench made similar observations in
this regard. In th~t case the evidence of the witness in the
Court and his identifying the accused only in the Court
without previous ident:fication parade was found to be a
valueless exercise. The observations made therein were
confined to the nature of the evidence deposed to by the
D
said eye-witnesses. It, therefore. cannot be held, as tried
to be submitted by learned Counsel for the appellants,
that in the absence of a test identification parade, the
evidence of an eye-witness identifying the accused would
become inadmissible or totally useless; whether the
E evidence deserves any credence or not would always
depend on the facts and circumstances of each case. It is,
of course, true as submitted by learned Counsel for the
appellants that the later decisions of this Court in the case
of Rajesh Govind Jagesha v. State of Maharashtra (AIR
F 2000 SC 160) and State of H.P v. Lekh Raj (AIR 1999
SC 3916), had not considered the aforesaid three-Judge
Bench decisions of this Court. However, in our view, the
ratio of the aforesaid later decisions of this Court cannot
be said to be running counter to what is decided by the
G earlier three-Judge Bench judgments on the facts and
circumstances examined by the Court while rendering
these decisions. But even assuming as submitted by
learned Counsel for the appellants that the evidence of,
these two injured witnesses i.e. Bhogilal Ranchhodbhai
H and Karsanbhai Vallabhbhai identifying the accused in
SANTOSH DEVIDAS BEHADE AND ORS. V. 107
STATE OF MAHARASHTRA [DR. ARIJIT PASAY/-\T J.]
the Court may be treated to be of no assistance to the A
prosecution, the fact remains that these eye-witnesses
were seriously injured and they could have easily seen the
faces of the persons assaulting them and their appearance
and identiiy would well within imprinted in their minds
especially when they were assaulted in broad daylight. s
They could not be said to be interested in roping in
innocent persons by shielding the real accused who had
assaulted them."
27. These aspects were recently highlighted in
Malkhansingh and Others v. State of M.P (2003 (5) SCC 746) C
and Munshi Singh Gautam (dead) and Ors. v. State of M.P. (2005
(9) sec 631)
28. If the background facts are considered in the light of
the legal principles set out above, the inevitable conclusion is
0
that the appeal is without merit, deserves dismissal which we
direct.
B.B.B. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 149 IPC"Sign in to search