Holding

The High Court’s acquittal was upheld because the prosecution failed to prove a common object among the accused, and the view taken by the High Court was a permissible one.

Summary

The case involved a murder arising from a rivalry between two village groups, leading to the death of Ramkumar. Five persons were tried; the trial court convicted all under Sections 148, 302 and 149 of the IPC, sentencing them to life imprisonment. The Rajasthan High Court acquitted three of the accused of the charges under Sections 148 and 302/149, holding that only two had actually fired the fatal shots and that there was no proof of a common object among all five. On appeal, the Supreme Court examined whether the prosecution had established a common object required under Section 149 IPC and considered contradictions in witness statements under Section 162(2) of the CPC. Finding material discrepancies, lack of evidence of a shared intent, and noting that the High Court’s view was a permissible one, the Court declined to interfere. Consequently, the appeal was dismissed, upholding the acquittal of the three respondents.

Issues considered

Whether the prosecution proved the existence of a common object/intention among all the accused under Section 149 of the Indian Penal Code.
Whether the High Court’s acquittal of the three respondents can be set aside on appeal.
Whether omissions/contradictions in witness statements under Section 162(2) of the Code of Criminal Procedure affect the assessment of common intention.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 162(2)
Indian Evidence Act, 1872s. 145
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 302, s. 34

Subjects

common objectSection 149 IPCunlawful assemblymurderacquittalappealwitness contradictionscriminal law

Judgment

,~
..I- SHRJ GOPAL A.ND ANR . A
v.
SUBHASH AND ORS.

JANUARY 23, 2004

[DORAi SW AMY RAJU AND S.B. SINHA, JJ.] B

Criminal Law:

Penal Code, 1860-Sections 34; 141; 148; 149 and 302-5 persons
convicted by trial court/or offences under Section 3021149-Discrepancies in c
the prosecution case raising a doubt as regard formation of common object
by the accused persons-High Court convicting two accused under Section
302134 and acquilling the remaining ·three of all the charges-Appeal by
complainant against acquillal-Held, there is nothing on records to show that
the respondents herein had any motive or common intention to commit the D
crime-View taken by High Court as regard doubtful participation of the
respondents is a possible view-No interference called for in an appeal of
acquillal when the view taken by Court below is one of the possible views-
Practice and Procedure-Code a/Criminal Procedure, 1973-Section 162(2),
Explanation.
E
Indian Penal Code, I 860-Section I 49-0jfence under-Constitution
of-Principles, discussed

Code o/Criminal Procedure, 1973/Evidence Act, 1872-Section 162(2),
Explanation/Section I 45- 'omission '-Amounting to contradiction-Concept
of. explained. F

There were two groups in a village; one headed by the accused RN
and the other by the deceased RK. The election to the Dairy Society prior
to the incident and some other criminal cases launched against members
of one of the groups were stated to be the reasons of rivalry between the
two groups. According to the prosecution, on the day of incident, RN G
exhorted the others to kill RK whereupon SL fired a shot that hit the
'
"'1 > deceased. Another shot was tired by MR at the deceased but the same
missed the target and hit the wall. As a result of multiple injuries, the
deceased died on the spot.
1085 H
1086 SUPREME COURT REPORTS [2004) I S.C.R.

A The Trial Court convict.ed all the five accused both under Sections
148 and 302 read with Section 149 of the Indian Penal Code, 1860 and
..
sentenced them to life imprisonment. SL and MR were also convicted of
an offence under section 27 of !ht Arms Act. On appeal, the High Court
acquitted the respondents herein of the charge both under Section 148 of
the Penal code and as also Section 302/149 thereof. The High Court further
B acquitted SL and MR of the charges under Section 27 of the Arms Act
and converted the sentence under Section 302/149 IPC passed against them
to one under Section 302/34 IPC. The sentence imposed on SL and MR,
however, remained unaltered. Hence, the present appeal by the first
informant.
c On behalf of the appellant, it was contended that the High Court
committed a serious error in passing the impugned judgment in as much
as the accused after having assembled, proceeded to the house of the
deceased with a common object of committing the crime; that in the facts
and circumstances of this case, the respondents must be said to have
D formed a common object to do away with the deceased and, thus, the
conviction under Section 302/149 IPC as also Section 148 IPC was
sustainable.

On behalf of the respondents it was contended that there was no
formation of common object and a case under Section 149 1.P.C. could
E not be said to have been made out as SL and MR had been found guilty
under Section 302/34; that PW I, PWS and PW 10 did not make any
allegation about exhortation by all the accused persons; whereas PW 3,
PW 4 and PW 8 did not make any such statement before the police; that
such 'omissions' on the part of PW-3, 4 & 8 amounted to contradiction
F having regard to explanation to Section 162(2) of the Code of Criminal
Procedure.

Dismissing the appeal, the Court

HELD: I.I. The essence of the offence under Section 149 of the
G Indian Penal Code would be common object of the persons forming the
assembly. It is necessary for constitution of the offence that the object
should be common to the persons who compose the assembly, that is, that
they should all be aware of it and concur in it. Furthermore, there must r-
"
be some present and immedidate purpose of carrying into effect the
common object. A common object is different from a common inter.tion
H insofar as in the former no prior consent is required, nor a prior meeting
SHRI GOPAL v. SUBHASH 1087

..i. of mmds before the attack would be required whereas an unlawful object A
can develop after the people get there and there need not be a prior
meeting of minds. 11091-H; 1092-A-BJ

1.2. The .High Court in its judgment while noticing the principles
governing commission of an offence under Section 149 of the Indian Penal
Code found that the allegation against the respondents herein are omnibus B
in nature. The High Court on examining the materials on records was of
the opinion that only MR and SL indulged in the acts of committing
murder of the deceased and, thus, the respondents herein were not guilty
of commission of any offence. 11090-A-CI

1.3. From the records, it appears that PW 5 and PW IO did not make c
any allegation as regard the alleged exhortation on the part of all the
accused. It further appears that PW 3, PW 4 and PW 8 stated before the
police that there had been such exhortations by the respondents herein.
Such omission on the part of PW 3, PW 4 and PW 8, in the facts and
circumstances of the case, being very material would amount to D
contradiction. There are contradictions in the statements of the witnesses
as regard the nature of weapon held by one of the accused. Further, it is
unlikely that for commission of an offence like culpable homicide
amounting to murder, the accused persons would go in a procession and
all of them would shout together, as alleged. Accused RN was standing at
a distance of about 120 ft. away from the place of occurrence when the E
deceased was hit. He was said to have been armed with a gun but did not
use the same. Accused S had merely a lathi in his hand and also did not
' use it. This also raises a doubt as regard formation of common object by
the accused persons. 11090-8-C; 1092-G-H; 1093-B, Fl
Tahsi/dar Singh and Anr. v. State ofU.P., AIR (1959) SC 1012, referred F
to.
2.1. While considering an appeal of acquittal, this Court may not
interfere when two reasonable views are possible to be taken and the view
taken by the Court below is one of such possible views. If the findings of
the High Court arrived at by the judges can be supported in the G
circumstances of the case, it would not be prudent to disturb the said
judgment. 11094-C-FJ
~
~

Slate of Rajasthan v. Raja Ram, [20031 8 SCC 180; Chanakya Dhibar
(Dead) v. State of West Bengal, (2003) IO Scale 883 Bachhu Narain Singh v.
Naresh Yadav and Ors., (2003) IO Scale 932 and State of U.P. v. Babu Khan H
1088 SUPREME COURT REPORTS (2004) I S.C.R.

A and Ors., (2004) 1 Scafe 11, referred to.

2.2. There are many discrepancies in the prosecution case. The view
taken by the High Court as regard doubtful participation of the
respondents herein is a possible view.. Once it is held that the prosecution
case as regard material aspects relating to implication of certain accused
B persons is doubtful, it would not be proper for this Court to interfere with
the judgment of the High Court even if a different view is possible to be
taken. The High Court had held only two persons guilty of commission of
an offence under Section 302/34 IPC. There is nothing on records to show
that the respondents herein had any motive or common intention to
C commit the crime. While considering a judgment of acquittal, this Court
will not evolve a new case. [!094-D-F[

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
961 ofl997.

D From the Judgment and Order dated 15.5.97 of the Rajasthan High
Court in D.B. Crl.A. No. 320 of 1987.

Sushi! Kumar Jain, Ms. Ruchi Kohli and H.D. Thanvi for the Appellants. ;,

Uma Datta, Tara Chandra Sharma, Ms. Neelam Sharma, Ms. Sandhya
E Goswami and Ms. N. Annapoorani for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal is directed against the judgment dated 15th
May, 1997 passed by the Rajasthan High Court in DB Criminal No. 320/87
whereby and whereunder the respondents herein were acquitted of the charges
F
of commission of an offence under Sections 148 and 302 read with 149 of
the Indian Penal Code.

The respondents herein together with Shankerlal and Maniram were
charged under Sections 148 and 302 read with Section 149 of the Indian
G Penal Code and were sentenced to life imprisonment for alleged commission
of an offence under Section 302 read with Section 149. They were further
sentenced to undergo one year's rigorous imprisonment with fine of Rs. 500/
,...
- for commission of an alleged offence under Section 148 of the Indian Penal ><

Code. Two accused persons Shankerlal and Maniram were also convicted
under Section 27 of the Arms Act and sentenced to undergo rigorous
H imprisonment of six months and a fine of Rs. 400.
SHRI GOPAL v. SUBHASH [SINHA, J.] 1089
Allegedly, there were two groups in Kanwarpura Tehsil; one headed by A
Shri Ramnarayn accused and the other by the deceased Ram Kumar. Allegedly,
a day prior to the date of incidence, an election of dairy society was conducted.
At about 7 p.m. on 6.6.1986, Atma Ram PW I, Brijlal PW 10, Ramilarayan
PW 5 and Rajaram were sitting on the chowki in the house belonging to
Brijlal. They saw the accused persons coming out from the house of B
Ramnarayan, Sarpanch. Allegedly, Ramnarayan, Maniram and Shankerlal
were armed with guns, Subhash with lathi and Manohar with pistol. They
proceeded towards the house ofHansraj. Shankerlal armed with 12-bore gun
.... entered into the house of Hansraj and the other accused persons proceeded
in the lane adjacent and towards the west of the said house. Allegedly,
Ramnarayan exhorted the others to kill Ramkumar whereupon Shankerlal C
fired a shot which hit Ramkumar. Another shot was allegedly fired by Maniram
at Ramkumar but the same missed the target and hit the wall. Manohar also
allegedly tried to fire but he was unsuccessful. Ramkumar, as a result of
multiple injuries, died on the spot. The motive for commission of the offence
apart from the parties belonging to separate factions and contesting the
elections in which allegedly Ramnarayan won, related an incidence which D
occurred 25 or 26 days prior to the date of occurrence, whence Krishna
trespassed into the house of Poosaram Meghwal and a case under Section
376 of Indian Penal Code was registered against Krishna and Ramnarayan,
in connection wherewith allegedly Ramratan and deceased Ramkumar helped
Poosaram. It was further alleged that Hanuman, brother of Shankerlal, after E
five days of the said incident, visited Poosaram and abused him whereupon
he was apprehended by deceased Ramkumar, Prithvi and Ramratan and handed
over to the police.

Before the Trial Court 13 witnesses were examined by the prosecution.
The Trial Court convicted all the five accused persons both under Section F
148 of the Indian Penal Code and Section 302/149. As noticed hercinbefore.
Shankerlal and Mani ram were also convicted of an offence under Section 27
of the Arms Act.

On appeal against the said judgment, the High Court acquitted the
respondents herein of the charges both under Section 148 of the Indian Penal G
and as also Section 302/149 thereof. The High Court further acquitted
Shankerlal and Maniram of the charges und~r Section 27 of the Arms Act
and converted the sentence under Section 302/149 passed againstthem to one
under Section 302/34 and the sentence imposed on Shankerlal and Maniram
further remained unaltered. H
1090 SUPREME COURT REPORTS [2004] I S. C.R.

A The High Court in its judgment while noticing the principles governing
commission of an offence under Section 149 of the Indian Penal Code found
that the allegation against the respondents herein are omnibus in nature. The
High Court noticed that the allegation to the effect that Manohar also attempted
to fire his gun but missed was not correct as the same was not followed by
B a report of the ballistic expert. The High Court further noticed that the other
two respondents did not commit any over-act in assaulting Ramkumar or
Ramratan. It was observed that accused Ramnarayan was standing at a distance
of about 120 ft. away from the place of occurrence when Ram kumar was hit.
He was said to have been armed with a gun but did not use the same.
Subhash had merely a lathi in his hand and also did not use it. The High
C Court on examining the materials on records was of the opinion that only
Maniram and Shankerlal indulged in the act of committing murder of
Ramkumar and, thus, the respondents herein were not guilty of commission
of any offence.

Aggrieved thereby, the first informant is before us in appeal.
D
Mr. Jain, learned counsel appearing on behalf of the appellant would
submit that the High Court committed a serious error in passing the impugned
judgment inasmuch as from the evidence adduced by Ramratan PW3, Gopal
PW 4, Atma Ram PWI, Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal
PW 10 it would appear that not only the accused had been armed with guns
E and lathi and pistol, but also assembled in the house of Ramnarayan and
proceeded to the house of the deceased, and after sometime, they divided
themselves into two separate groups with a common object of committing the
crime.

The learned counsel would submit that Ramnarayan exhorted the accused
F
persons to commit the offence, while standing near the electric pole whereupon
Maniram being armed with a double barrel gun came out of the street and
fired twice, one of which had hit the deceased; while Shankerlal fired from
his gun which hit Ramkumar on the left side.

G Mr. Jain would contend that having regard to the provisions contained
in Section 141 of the Indian Penal Code, in the facts and circumstances of
this case, the respondents must be said to have formed a common object to
do away with Ramkumar and, thus, the conviction under S1!ction 3021149 as
also Section 148 was sustainable. It was argued that the very fact that all the
accused persons, according to Ramratan PW3, Gopal PW 4, Atma Ram PWI,
H Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW IO gave 'lalkara' and
SHRI GOPAL v. SUBHASH [SINHA, J.) 1091

..... they not only participated but also played their roles would also go to show A
that they are guilty of commission of the aforementioned offence.

Mr. Uma Datta, learned counsel appearing on behalf of the respondents
per contra would submit that a case under Section 149 of the Indian Penal
Code cannot be said to have been made out as Maniram and Shankerlal had
been found guilty under Section 302/34. It was contended that Maniram had B
also died and Shankerlal has served out his sentence. Mr. Datta would sublnit
that from the records, it would appear that PW I, PW 5 and PW I 0 did not
make any allegation about exhortation by all the accused persons; whereas
PW 3, PW 4 and PW 8 did not make any such statement before the police
in relation whereto their attention has been drawn. Mr. Datta would urge that
having regard to the amendment carried out in Section 162(2) of the Code
c
of Criminal Procedure by inserting an explanation in terms whereof'omission'
may amount to 'contradiction' in certain situations. It was contended that the
attention of PW 3, PW 4 or PW 8 in the aforementioned situation has been
drawn to 'omissions' in their statements under Section 161 of the Code of
Criminal Procedure. D
The learned counsel would submit that the prosecution story was wholly
unbelievable inasmuch as even from the evidence of PW I it would appear
that they had allegedly seen the occurrence from a distance. The learned
counsel has drawn our attention to the fact that houses of both the parties are
adjoining each other. It was further contended that it was impossible for the E
witnesses to see actual firing by Shankerlal who allegedly went inside the
house as the wall of the house was six-seven ft. high.
-~
The principles relating to applicability of Section 149 of the Indian
Penal Code is not in dispute. For the purpose of attracting the said provision,
F
it is not necessary that an over-act must be committed by all the accused
persons. What is necessary is formation of an unlawful assembly and
knowledge of the persons thereof about consequences arising from doing an
act which amounts to offence.

Section 141 of the Indian Penal Code defines 'Unlawful assembly', as G
an assembly of five or more persons, if the common object of the persons
composing the same, inter a/ia, is to commit any mischief or criminal trespass,
' or other offences.

The essence of the offence under Section 149 of the Indian Penal Code
would be common object of the persons forming the assembly. It is necessary H
1092 SUPREME COURT REPORTS [2004) l S.C.R.

A for constitution of the offence that the object should be common to the
persons who compose the assembly, that is, that they should all be aware of
it and concur in it. Furthermore, there must be some present and immediate
purpose of carrying into effect the common object. A common object is
different from a common intention insofar as in the former no prior consent
B is required, nor a prior meeting of minds before the attack would be required
whereas an unlawful object can develop after the people get there and there
need not be a prior meeting of minds.

The High Court has arrived at a finding that Shankerlal and Maniram
were guilty of commission of an offence under Section 302/34 !PC and not
C under Section 302/149 !PC.

Keeping in the aforementioned principles, the question is required to be
considered for arriving at a conclusion as to whether there had been a common
object on the part of the respondents in committing the alleged offence.

Jn Tahsildar Singh and anr v. Stale of UP., AIR (1959) SC 1012, this
D
Court held that in terms of Section 145 of the Indian Evidence Act attention
of witnesses can be drawn to such statements which would amount to
contradiction. It was held: "The right of both accused and the prosecution is
limited to contradictions." It was, thus, held that omission to make a statement
in terms of Section 161 of the Code of Criminal Procedure would not attract
E the provisions of Section 145 of the Indian Evidence Act. However, by
reason of Code of Criminal Procedure explanation has been inserted to Sub-
section (2) of Section 162 which is in the following terms:

"An omission to state a fact or circumstance in the statement referred
to in sub-section (I) may amount to contradiction ifthe same appears
F to be significant and otherwise relevant having regard to the context
in which such omission occurs and whether any omission amounts to
a contradiction in the particular context shall be a question of fact."

From the records, it appears that PW I, PW 5 and PW I 0 did not make
any allegation as regard the a'lleged exhortation on the part of all the accused.
G It further appears that PW 3, PW 4 and PW 8 stated before the police that
there had been such exhortations by the respondents herein. Such omission
on the part of PW 3, PW 4 and PW 8, in the facts and circumstances of the
case, being very material would amount to contradiction.

Furthermore, the informant PW I stated that the distance between the
H
SHRI GOPAL v. SUBHASH [SINHA, J.] 1093
house of Ramnarayan Sarpanch is one killa or 1.1/4 kill a. I killa is equivalent A
to one acre.

There are contradictions in the statements of the witnesses as regard the
nature of weapon held by Manohar. It further appears from the record that.
the house of Hansraj and the house of the deceased are almost in front of
each other. It is, therefore, unlikely that for commission of an offence like B
culpable homicide amounting to murder, the accused persons would go in a
procession and all of them would shout together.

It further appears that witnesses are related to each other. PW 5 is uncle
of Atma Ram. PW 8 Ramnarayan is brother-in-law of Gopal. Ramratan is
also his first cousin. Shanker and Maniram are real brothers. Subhash and C
Manohar accused are the nephews of Ramnarayan accused. Maniram and
Shanker have no relation with Ramnarayan accused. According to PW-8 the
house of Ram Narayan accused is towards the east from the house of Hansraj,
which is at a distance of three bighas from his house. As regard distance,
according to PW-8, the house of deceased Ramkumar was towards south of D
his house, which is situated at a distance of five bighas. How, thence, could
see the occurrence is not explained.

It is, therefore, unbelievable that the accused persons would behave in
the manner as alleged by the PW 8. Furthennore, from the evidence of PW
3 Ramratan, it appears, that the place behind the wall where Shankerlal was E
standing and fired at Ramkumar was about 6-7 ft. high. It is, therefore, not
possible for any witness to have witnessed actual firing of any shot by
Shankerlal. PW I0 Brijlal stated that when Shankerlal entered the house of
Hansraj, no suspicion came in his mind and only after he heard the sound of
firing, he became suspicious. This also raises a doubt in our mind as regard F
fonnation of common object by the accused persons.

In the First Information Report, it was alleged that both Ramkumar and
Ramratan were coming from the house of Ramratan towards the house of the
informant's .brother-in-law Ramnarayan, as has been noticed by the learned .
Trial Judge in his judgment. However, in his evidence, it was stated that G
Ramratan and Ramkumar were going to the house of Ramkumar which was
at a distance.

Furthermore, three cartridges had been recovered which are said to
. have been fired from the 12-bore SBBL guns marked as W/I and W/2. The
ballistic experts state that one of them had not been fired by any of the two H
1094 SUPREME COURT REPORTS [2004] I S.C.R.

A admitted SBBL guris.
The aforementioned factors are also relevant and required to be taken
into consideration along with the findings arrived at by the Division Bench
of the High Court acquitting the respondents herein from the charges of
Section 148 and Section 302/149 of the Indian Penal Code for the purpose
B of arriving at a finding as to whether appellants are guilty of commission of
the offences under Section 302/149 IPC or not.

While considering an appeal of acquittal, this Court may not interfere
when two reasonable views are possible to be taken and the view taken by
C the Court below is one of such possible views. (See State of Rajasthan v.
Raja Ram, (2003] 8 SCC 180 and Chanakya Dhibar (Dead) v. State of West
Bengal, (2003) 10 SCALE 883).

We have highlighted hereinbefore certain discrepancies in the
prosecution case only for the purpose of satisfying ourselves that the view
D taken by the High Court as regard doubtful participation of the respondents
herein is a possible view. Once it is held that the prosecution case as regard
material aspects relating to implication of certain accused persons is doubtful,
we are of the opinion that it would not be proper for this Coui:t to interfere
with the judgment of the High Court even if a different view is possible to
be taken. The High Court, as noticed, hereinbefore, had held only two persons,
E Shankerlal and Maniram guilty of commission of an offence under Section
302/34. There is nothing on records to show that the respondents herein had
any motive or common intention to commit the crime. While considering a
judgment of acquittal, this Court will not evolve a new case.

We, therefore, are of the opinion that the judgment of the High Court
F does not suffer from any infirmity. If the findings of the High Court arrived
at by the learned Judges can be supported in the circumstances of the case,
in our opinion, it would not be prudent to disturb the said judgment. (See
Bachhu Narain Singh v. Naresh Yadav and Ors., (2003) 10 SCALE 932 and
State of U.P. v. Babu Khan and Ors., (2004) I SCALE 11).
G
For the reasons aforementioned, this appeal is dismissed.

M.P. Appeal dismissed.