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Reportable  

   IN THE SUPREME COURT OF INDIA

         CRIMINAL APPELATE JURISDICTION

Criminal     Appeal     Nos.     1262-1264     of     2010   

 Bharat Soni etc.      … Appellants  

Versus

State of Chhatisgarh   …Respondent

WITH

Criminal     Appeal     No.     1873     of     2011   

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J.   

Four of the seven accused persons whose conviction  

under Section 302 IPC and the sentence of life imprisonment  

has been affirmed by the High Court of Chhattisgarh have filed  

the instant appeals challenging Judgment and Order dated  

30th November, 2009 of the High Court.   We have heard the  

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learned counsels for the appellants as well as the learned  

counsel for the State.    

2.   The short case of the prosecution is that on 05.12.2000  

at about 8.55 p.m., Santosh (PW-4) lodged a FIR in the  

Ambikapur Police Station stating that a short while ago i.e. at  

about 8.40 p.m. while he was standing in front of his house  

alongwith deceased Vinod and Amit (PW-13), accused Gopi  

Ghasia(A-6) and Ranu(A-5) had come there in a state of  

intoxication.  According to the first informant, an altercation  

took place in the course of which he as well as Vinod had  

slapped accused Gopi.  Enraged, the accused persons went  

away threatening to kill them.  According to the first  

informant, after about an hour, the four accused appellants.  

i.e. Bharat, Dhruv, Sanjay and Rupesh accompanied by  

accused Ranu, Gopi and Jitender came to the place  armed  

with different kinds of dangerous weapons.  Specifically it was  

mentioned that accused Gopi had come armed with a Nepali  

Khukhri; accused Ranu had a knife with him whereas accused  

Jitender was armed with a Nan Chaku. In so far as accused  

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Bharat and Dhruv are concerned, it was claimed by the first  

informant that while the former was armed with an iron rod,  

accused Dhruv had carried a leather belt in his hand.  In the  

FIR it was further alleged that accused Ranu had assaulted  

the first informant Sanjay (PW-4) with a knife but he had  

escaped without any serious injuries.  However, accused Gopi  

and Ranu gave knife blows to the deceased Vinod on his chest  

and stomach whereas accused Dhruv and Bharat had  

assaulted Amit Kashyap (PW-13) with the belt and iron rod  

that they had carried.   According to the first informant,  

accused Rupesh and Sanjay had instigated the other accused  

to kill the deceased Vinod. Due to the assault committed on  

Vinod, he had sustained injuries for which reason he had to  

be taken to the hospital.

3. On receipt of the FIR a case under Sections 147,148, 149  

and 307 of the IPC was registered.  However as the injured  

Vinod died at about 9.15 p.m. on the same night, the offence  

under Section 302 was added in the FIR.   The crime alleged  

was duly investigated and on completion thereof all the seven  

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accused were charge sheeted under Section 147, 148,  

302/149 of IPC.  Thereafter, the case was committed for trial  

to the court of sessions and charges under Sections 147, 148,  

302/149 IPC were framed against the accused persons. As the  

accused claimed innocence a regular trial was held,  at the  

conclusion of which all the seven accused were found guilty of  

the charge under Section 147, 148,  302/149 IPC.  They were  

accordingly sentenced.  The  separate appeals filed by the  

seven accused before the High Court having been dismissed by  

the impugned order dated 30.11.2009, the accused Bharat,  

Dhruv, Sanjay and Rupesh have challenged the aforesaid  

order of the High Court in the appeals filed by them before this  

Court.

4.  Before adverting to the core legal issue arising in the  

present appeals, namely, the liability of the accused appellants  

for the offence under Section 302 IPC on the basis of their  

constructive liability, if any, under Section 149 IPC, it will be  

necessary to notice, though very briefly, the salient part of the  

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evidence adduced by the prosecution in support of the charges  

levelled.  

5. Of the fifteen witnesses examined by the prosecution, the  

evidence of Sonu Kewat (PW-1), Suraj Dass (PW-2), (though  

declared hostile), Ram Naresh (PW-3), Prakash Suryavanshi  

(PW-5),  Imtiaz Ali (PW-6) and Dr. S.K. Sinha (PW-7) would be  

relevant.  Equally, the evidence of   (PW-4) and PW-13 who  

had been examined as the eye-witnesses to the incident will  

have to be noticed in some details.

6. From the deposition of PW-1, PW-2, PW-3 and PW-5, it  

transpires that the aforesaid witnesses had come to the place  

of occurrence on hearing the commotion that had taken place.  

The said witnesses, without any major discrepancies or  

contradictions, have narrated that on reaching the place of  

occurrence they could see the deceased Vinod lying injured  

and all the seven accused fleeing away therefrom. However,  

two of the accused, namely, Dhruv and Bharat were  

apprehended by the persons who had gathered at the place of  

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occurrence, having come there on hearing the commotion that  

had taken place.  It may be noticed, at this stage, that in so far  

as the identity of the accused is concerned, no issue has been  

raised on behalf of the accused at any point of time.

7. Imtiyaz Ali (PW-6) is a witness to the recovery of the  

alleged weapons of assault.  All such recoveries were made at  

the instance of the accused persons.  Specifically, PW-6 has  

deposed that on the basis of the statement of accused Jitender  

a Nan Chaku (Ex.P-7) was recovered.  At the instance of  

accused Gopi and Ranu a Nepali Khukri and a Gupti (Ex.P-8  

and Ex.P-11 respectively) was recovered.  Similarly, on the  

basis of the statement of accused Dhruv and Bharat a leather  

belt and an iron rod (Ex.P-14 and Ex.P-15) were recovered.

8. Dr. S.K. Sinha (PW-7) M.O. District Hospital, Ambikapur  

who had conducted the post mortem of the deceased Vinod  

had proved the report of post-mortem (Ex.P-26). This witness  

had deposed that corresponding to one of the external injuries  

found i.e. an incised wound over the abdominal wall below the  

umbilicus, internal injuries cutting the diaphragm and lower  

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lobe of the right and left lung were found by him on the person  

of the deceased.   

9. PW-4 who was examined as an eye-witness had deposed  

that all the seven accused persons, including the four  

appellants, had come together to the place of occurrence at  

about 8.40 pm on 05.12.2000. This witness had specifically  

deposed that accused Bharat, who was armed with a Gupti,  

had assaulted the deceased in the stomach with the said  

weapon. However, in the FIR filed by him, he had stated that  

accused Bharat was armed with an iron rod. Similarly in his  

deposition, PW-4 had stated that accused Dhruv was also  

holding a Gupti whereas in the FIR it had been mentioned that  

the said accused was armed with a leather belt.  In a similar  

manner, though in the FIR accused Sanjay and Rupesh had  

been alleged to be the persons who were instigating the others  

to kill Vinod, in his deposition in court PW-4 had stated that  

he had seen the accused Sanjay assaulting the deceased in  

the thigh with a Gupti. In so far as accused Rupesh is  

concerned PW-4 had not implicated the said accused in any  

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manner at all while deposing in court.  Similarly, PW-4 had  

not implicated accused Jitender his evidence in court though  

in the FIR filed he had specifically mentioned that accused  

Jitender was armed with a Nan Chaku. In so far as the  

accused Gopi and Ranu is concerned PW-4 has, however, been  

consistent in the alleged involvement of the said two accused  

both in the FIR as well as in the deposition tendered in Court.

10.  On the other hand, Amit Kashyap (PW 13), had deposed  

that the accused persons, including the present appellants,  

were assaulting (beating) Vinod with hands and fists and were  

also kicking him.   However, when he (PW-13) along with  

others had rushed towards Vinod to save him, the accused  

persons took out the Guptis that they were carrying and  

started assaulting the deceased with the said weapons.  

Specifically, PW-13 had stated that accused Ranu had stabbed  

the deceased with a dagger on the stomach and the accused  

Jitender had also inflicted a Gupti blow though he could not  

see the particular part of the body of the deceased on which  

the Gupti blow was inflicted by the accused Jitender.

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11.  Furthermore, reading the evidence of PW-13 it is clearly  

discernible that the said witness has tried not to involve the  

accused Bharat in the incident.  The motive for the same, as  

evident from the cross-examination of PW-13, is some  

relationship between the two i.e. PW-13 and accused Bharat.  

Specifically, PW-13 had stated that he had not seen Bharat  

committing any assault on the deceased and that he was also  

not sure as to whether Bharat had accompanied the other  

accused persons and also whether he was holding any weapon  

at all. PW-13 has also given a different sequence of the arrival  

of the seven accused persons at the place of occurrence. In  

this regard he had stated that while five accused had arrived  

together, accused Bharat arrived at the place of occurrence  

thereafter and the last to arrive was the accused Sanjay.

12.  Having noticed the essential features of the evidence  

tendered by the prosecution witnesses we may now proceed to  

examine the  liability of the accused appellants, all or any of  

them, on the principle of vicarious or constructive liability  

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under Section 149 of the IPC. The aforesaid provision of the  

IPC is in the following terms:

“149. Every member of unlawful assembly guilty of offence  committed in prosecution of common object –  If an offence is  committed by any member of an unlawful assembly in  prosecution of the common object of that assembly, or such as  the members of that assembly knew to be likely to be  committed in prosecution of that object, every person who, at  the time of the committing of that offence, is a member of the  same assembly, is guilty of that offence.”

13.  An assembly of five or more persons having as its  

common object any of the five objects enumerated under  

Section 141 of the IPC is deemed to be an unlawful assembly.  

Membership of an unlawful assembly is itself an offence  

punishable under Section 143 whereas other species of the  

said offence are dealt with under Sections 143 to 145 of the  

IPC.  Similarly, Sections 146 to 148 of the IPC deals with the  

offence of rioting which is defined to be use of force or violence  

by any member thereof. Section 149 makes every member of  

an unlawful assembly liable for offence that may be committed  

by any member of the unlawful assembly in prosecution of the  

common object of that assembly or for commission of any  

offence that the members of the assembly knew to be likely to  

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be committed in prosecution of the common object of the  

assembly.   

14.  Section 149 IPC, therefore, engrafts a principle of  

vicarious or constructive liability inasmuch as a person would  

be guilty of an offence, though he may not have directly  

committed the same if as a member of an unlawful assembly  

he had shared a common object with the other members to  

commit such an offence or if he knew that such offence was  

likely to be committed in prosecution of the common object of  

the assembly of which he was a member.

15.  The purport and effect of the provisions of Section 149  

IPC has received the consideration of this court on more than  

one occasion. Without referring to any particular or specific  

precedent available on the point, it would suffice to say that  

determination of the common object of an unlawful assembly  

or the determination of the question whether a member of the  

unlawful assembly knew that the offence that was committed  

was likely to be committed is     essentially     a     question     of     fact   that  

has  to  be made  keeping  in  view  the nature of the  

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assembly, the arms carried by the members and the behaviour  

of the members  at or near the scene and a host of similar or  

connected facts and circumstances that cannot be entrapped  

by any attempt at an exhaustive enumeration.   

16.  In Dani Singh Vs. State of Bihar1 the meaning of the word  

“common object”  had been considered by this Court. The  

relevant part of the discussion may be summarized up below:

11.......The word “object” means the purpose or  

design and, in order to make it “common”, it  

must be shared by all. In other words, the  

object should be common to the persons, who  

compose the assembly, that is to say, they  

should all be aware of it and concur in it......  

12......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  1 (2004) 13 SCC

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circumstances. It may be gathered from the  

course of conduct adopted by the members of  

the assembly. What the common object of the  

unlawful assembly is at a particular stage of  

the incident is essentially a question of fact to  

be determined, keeping in view the nature of  

the assembly, the arms carried by the  

members, and the behaviour of the members  

at or near the scene of the incident.....

13......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 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 culled  

out, it may reasonably be collected from the  

nature of the assembly, arms it carries and  

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behaviour at or before or after the scene of  

incident.....”

17.  In a recent decision of this court in Kuldip Yadav Vs.  

State of Bihar2 to which one of us (Justice Sathasivam) was a  

party, the principle of constructive liability under Section 149  

IPC had once again received an elaborate consideration.  In  

paragraph 39 of the judgment it was held that:  

“It is not the intention of the legislature in  enacting Section 149 to render every member of  unlawful assembly liable to punishment for every  offence committed by one or more of its members.  In order to attract Section 149, it must be shown  that the incriminating act was done to accomplish  the common object of lawful assembly and it must  be within the knowledge of other members as one  likely to be committed in prosecution of the  common object.”

18.  In para 40 of the judgment an earlier decision in  

Rajendra Shantaram Todankar Vs State of Maharashtra3  was  

noticed, particularly, the opinion that ....”It is difficult indeed,  

though not impossible, to collect direct evidence of such  

knowledge.  An inference may be drawn from circumstances  

2 (2011) 5 SCC 324 3 (2003) 2 SCC 257

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such as the background of the incident, the motive, the nature  

of the assembly, the nature of the arms carried by the  

members of the assembly, their common object and the  

behaviour of the members soon before, at or after the actual  

commission of the crime.”

19.  Having enumerated the principles of law governing the  

application of the principle of constructive liability under  

Section 149 IPC, it will now be necessary to apply the said  

principles to the facts of the present case as disclosed by the  

evidence on record.

20.  The presence of the accused appellants along with the  

other accused at the place of occurrence and at the time and  

date as claimed by the prosecution is not in dispute.  It is also  

not in doubt that the two of the accused i.e. Gopi and Ranu  

(not before us) had an altercation with Santosh (PW-4) and the  

deceased Vinod about an hour earlier to the incident and that  

the two accused had left the place threatening that they would  

come back to kill Santosh (PW-4) and Vinod.  Thereafter, all  

the seven accused had come armed with weapons. From the  

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evidence of the prosecution witness it transpires that some of  

the accused had attacked Santosh (PW-4) and Amit (PW-13)  

who were present at the spot besides assaulting the deceased  

Vinod in the stomach with sharp weapons resulting in his  

death.   From the evidence of PW-1, PW-2, PW-3  and PW-5  it  

clearly transpires  that all the seven accused, after the  

incident, were seen trying to flee away from the place of  

occurrence and, in fact, two of the accused i.e. Dhruv and  

Bharat (Appellants before us) were apprehended by the  

persons present at the spot.

21.  As against the above, what we find is several serious  

contradictions in the evidence of PW-4 and the previous  

statement made by him in the FIR.   The discrepancies are too  

significant to be ignored. As the details in this regard have  

already been noticed the same need not be repeated. Suffice it  

will be to say that such discrepancies in the evidence of PW-4  

relate to vital aspects of the case, namely, the weapons carried  

by the accused persons; who amongst the accused had  

assaulted the deceased and the weapon(s) used. On the other  

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hand, from the evidence of PW-13 it transpires that the  

accused persons were initially assaulting the deceased with  

their hands and fists and were giving him blows and kicks. It  

is only at a later stage i.e. when PW-13 and others had rushed  

to save Vinod that accused persons are reported to have taken  

out the weapons they were carrying i.e. guptis. Specifically  

PW-13 had implicated only accused Jitender and Ranu (not  

appellants) as the persons who had inflicted knife and gupti  

blows on the deceased though he had stated that he could not  

see the specific part(s) of the body of the deceased on which  

assault was committed by the accused Jitender.

22.  From the above it is clear that not only the testimony of  

PW-4 is self contradictory, the versions of the two eye-

witnesses in so far as the involvement of the accused-

appellants is concerned is at variance with each other. Insofar  

as accused Rupesh is concerned he has hardly been  

implicated and the prosecution evidence, properly read, would  

seem to show that he was a mere passive onlooker. Also,  

PW-13 is wholly silent with regard to the involvement of any of  

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the four accused appellants before this Court. In fact, PW-13  

had gone to the extent of stating that the accused Bharat may  

not have accompanied the other accused to the place of  

occurrence and he was in fact not holding any weapon at all.  

The recovery of the alleged weapons at the instance of the  

accused, if the oral evidence of PW-4 and PW-13 is to be  

excluded, will not be sufficient to convict the accused  

appellants under Section 149.  The incident of the accused  

fleeing away from the place of occurrence, similarly, will not be  

conclusive and determinative of the liability of the accused for  

the substantive offence under section 302 with the aid of  

section 149 IPC. There is no convincing and consistent  

evidence of any individual overt act on the part of any of the  

accused appellants to implicate any or all of them for causing  

the fatal injuries on the body of the deceased. Having  

considered the evidence brought by the prosecution, as  

discussed above, we are of the view that it cannot be  

reasonably inferred that the accused appellants, as members  

of an unlawful assembly, had any common object to commit  

the offence of murder of the deceased Vinod. Neither, the  

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accused can be attributed with the knowledge that the offence  

of murder was likely to be caused or to occur in prosecution of  

the common object.   At best what can be said and held is that  

the common object of the assembly of the accused was to  

teach PW-4 and the deceased Vinod a lesson on account of the  

previous altercation that had taken place in the course of  

which PW-4 and the deceased had slapped one of the accused,  

i.e. Gopi. The accused persons, including the present  

appellants, as members of the unlawful assembly were  

committed and in fact had indulged in the use of force in  

prosecution of the aforesaid common object. The same would,  

however, render the accused appellants liable only for the  

offence under Section 147 and 148 of the IPC for which they  

have already been convicted by the learned trial court as also  

by the High Court.

22. We are, therefore, of the view that while maintaining the  

conviction of the appellants under Section 147and 148 of the  

IPC and the sentence imposed they are entitled to be acquitted  

for the offences under Section 302 read with Section 149 IPC.  

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If the accused appellants have already served the sentence for  

the offences under Section 147 and 148 of the IPC we direct  

that, unless their custody is required in connection with any  

other case, the accused appellants be set at liberty forthwith.  

The Judgment and Order of the High Court is modified  

accordingly and the appeals are partly allowed to the extent  

indicated above.

...…………………………J. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, November 22, 2012.    

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