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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.88 OF 2007

SUBAL GHORAI & ORS. …        APPELLANTS

Vs.

STATE OF WEST BENGAL …        RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The  appellants  viz.  A1-Subal  Ghorai,  A2-Bishnupada  

Ghorai,  A3-Ranjit  Samanta  (since  deceased),  A4-Sunil  

Senapati, A5 Pulin Sat @ Samanta, A6-Sudarshan Ghorai, A7-

Nemai  Ghorai,  A8-Biswanath  Ghorai,  A9-Joydeb  Ghori  @  

Bhatu,  A10-Tarapada  Samanta,  A11-Bistu  Samanta,  A12-

Bhanu Samanta, A13-Uttam Samanta @ Bhalu, A14-Sambhu  

Jana, A15-Dipu Samanta @ Dipak, A16-Subal Samanta (since  

deceased), A17-Dulal Samanta (since deceased), A18-Nentu

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Dhara (since deceased), A19-Rakhal Dhara, A20-Batul Dhara,  

A21-Kengal  Senapati,  A22-Nikhil  Senapati,  A23-Sibu  

Pramanik, A24-Dhiren Shee @ Singh (since deceased), A26-

Niranjan Das, A28-Sambhu Samanta, A29-Probodh Jana, A35-

Satrughna  Patra  and  A36-Duryadhan  Patra  (“appellants  

accused”) along with 7 other accused viz. A25-Subal Shee  

@ Singh, A27-Tapan Pramanik, A30-Padmalochan Das, A31-

Dima Pramanik, A32-Manick Pramanik, A33-Sankar Das and  

A34-Bhakti Bhusan Maity were tried by the 4th Court of the  

Additional Sessions Judge, Midnapore in Sessions Trial Case  

No.XXIII  of  May,  1989,  for  offences  punishable  under  

Sections 147, 148, 302 read with Section 149, Section 324  

read with Section 149 and Section 436 read with Section 149  

of the Indian Penal Code (“the IPC”).   

2. It  must  be  mentioned  here  that  the  charge-sheet  

mentioned the names of 39 persons but learned Additional  

Sessions Judge commenced the sessions trial in respect of  

36 persons because out of 39 persons, 3 persons were held  

to be juveniles.  Their trial was separated from that of the  

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remaining 36 persons.  For the sake of convenience, we shall  

refer to the accused as per the numbers assigned to them by  

the trial court.  

3. The prosecution case shall be stated more in detail, a  

little later.  Suffice it to state, at this stage, that the case of  

the prosecution in short was that on 14/5/1986, the goat of  

deceased-Hemanta  damaged  the  paddy  of  A1-Subal.  

Juvenile delinquent-Gopal and his mother beat the said goat.  

Juvenile  delinquent-Gopal  was  detained  by  deceased-

Hemanta  and,  after  sometime,  he  was  released.   This  

infuriated the accused.  They came to the bund armed with  

weapons and attacked deceased-Hemanta, deceased-Manik  

and  deceased-Gour,  who  succumbed  to  the  injuries  

sustained by them.  They also assaulted PW-2 Lakshmi, PW-5  

Ananta, PW-12 Jamini and PW-13 Mandakini.  PW-1 Promila,  

the  wife  of  Mohanta  Dhara,  who  witnessed  the  incident,  

lodged the FIR.  The accused were then arrested and tried as  

aforesaid.   The prosecution in support of its case examined  

20  witnesses.  In  defence,  the  accused  examined  8  

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witnesses.  They  denied  the  prosecution  case.   A1-Subal  

Ghorai,  A24-Dhiren Shee and A34-Bhakti  Bhushan pleaded  

defence of alibi.    

4. After considering the evidence, by judgment and order  

dated 7/9/1994, learned Additional Sessions Judge convicted  

the  appellants-accused  and  A25-Subal,  A27-Tapan,  A30-

Padmalochan, A31-Dima, A32-Manick, A33-Sankar and A34-

Bhakti Maity for the offences punishable under Section 302  

read with  Section  149 of  the  IPC  and sentenced them to  

undergo imprisonment for life and to pay a fine of Rs.5,000/-.  

In default of payment of fine, they were directed to undergo  

two years rigorous imprisonment.  They were also convicted  

under  Section  436  read  with  Section  149  of  the  IPC  and  

sentenced to undergo rigorous imprisonment for five years  

and to pay a fine of Rs.5,000/-.  In default of payment of fine,  

they were directed to undergo rigorous imprisonment for two  

years.   Appellants-A1-Subal,  A2-Bistu,  A18-Nentu and A21-

Kengal were also convicted for the offence punishable under  

Section 148 of the IPC and sentenced to undergo rigorous  

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imprisonment for two years and to pay a fine of Rs.1,000/-.  

In default of payment of fine, they were directed to undergo  

rigorous imprisonment for  one year.   Appellants A3-Ranjit,  

A4-Sunil,  A5-Pulin,  A6-Sudarshan,  A7-Nemai,  A8-Biswanath,  

A9-Joydeb, A10-Tarapada, A11-Bistu, A12-Bhanu, A13-Uttam,  

A14-Sambu, A15-Dipu and A16-Subal Samanta, A18-Nentu,  

A19-Rakhal,  A20-Batul,  A21-Kengal,  A22-Nikhil,  A23-Sibu,  

A24-Dhiren,  A25-Subal  Shee,  A26-Niranjan  and  A27-Tapan  

and  7  others  were  also  convicted  for  offence  punishable  

under  Section  147  of  the  IPC  and  sentenced  to  undergo  

rigorous imprisonment  for  two years.   Appellants  A2-Bistu  

and A21-Kengal were also convicted for offence punishable  

under  Section  324  of  the  IPC  and  sentenced  to  undergo  

rigorous  imprisonment  for  2  years  and  to  pay  a  fine  of  

Rs.1,000/-.  In default of payment of fine, they were directed  

to  undergo  rigorous  imprisonment  for  one  year.    The  

substantive sentences were ordered to run concurrently.

5. Being  aggrieved  by  the  judgment  of  conviction,  an  

appeal was preferred by the accused.  During the pendency  

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of the appeal before the High Court, A3-Ranjit Samanta and  

A24-Dhiren Shee died.  Hence, the High Court recorded that  

the appeal so far as it related to them had abated.  The High  

Court confirmed conviction and sentence of the appellants-

accused.   However,  the  High  Court  acquitted  A25-Subal  

Shee,  A27-Tapan  Pramanik,  A30-Padmalochan  Das,  A31-

Dima Pramanik, A32-Manick Pramanik, A33-Sankar Das and  

A34-Bhakti Bhusan Maity of all the charges leveled against  

them. Being aggrieved by the said judgment and order, the  

appellants-accused have approached this court.  During the  

pendency of  the instant  appeal,  A16-Subal  Samanta,  A17-  

Dulal Samanta and A18-Nentu Dhara have died.  Hence, the  

appeal has abated as against them.  

6. We  have  heard  learned  counsel  for  the  parties  and  

carefully perused the written submissions tendered by them.  

Mr. Pradip Kumar Ghosh, senior advocate appearing for A1-

Subal, A2-Bistu, A4-Sunil, A5-Pulin, A6-Sudarshan, A7-Nemai,  

A8-Biswanath, A9-Joydeb, A10-Tarapada, A11-Bistu Samanta,  

A12-Bhanu, A13-Uttam, A14-Sambhu, A15-Dipu, A18-Nentu,  

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A19-Rakhal,  A20-Batul,  A21-Kengal,  A22-Nikhil,  A23-Sibu,  

A24-Dhiren,  A25-Subal,  A26-Niranjan  and  A27-Tapan  

submitted that the prosecution story that because the goat  

of  deceased-Hemanta  damaged  the  paddy  of  A1-Subal,  

200/250 persons gathered at the scene of offence and killed  

the three Dharas is absurd.  It is sought to be substantiated  

only  by  the  evidence  of  interested  witnesses,  the  

independent  witnesses  having  turned  hostile.   The  

prosecution case therefore does not inspire confidence.  A1-

Subal’s defence of alibi was wrongly rejected though credible  

witnesses  were  examined  by  the  defence  in  its  support.  

Counsel  submitted  that  assuming  the  prosecution  case  

against A1-Subal, A2-Bishnu  and A3-Ranjit, A18-Nantu and  

A21-Kengal  who were  stated  to  be  carrying  weapons  and  

against whom specific overt acts are alleged is proved, even  

then the case against  the remaining accused persons will  

have  to  be  rejected  because  they  were  not  armed  with  

weapons.   Counsel  submitted  that  PW-2  Lakshmi  has  

improved her statement in the court.  She stated that A22-

Nikhil  assaulted her,  but  A22-Nikhil  was not armed.  A22-

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Nikhil was not even questioned about this in his statement  

recorded  under  Section  313  of  the  Code  of  Criminal  

Procedure,  1973  (“the  Code”).   PW-3  Nilima  and  PW-4  

Sarathi  made mistakes in identifying the accused.   PW-12  

Jamini  and  PW-13  Mandakini  made  general  allegations.  

Counsel  drew  our  attention  to  the  evidence  of  the  

investigating  officer  PW-19 P.I.  Samrendra  Ghosh to  point  

out  that  PW-2  Lakshmi,  PW-3  Nilima,  PW-4  Sarathi,  PW-7  

Pratap Majhi and PW-12 Jamini have made improvements in  

their  statements  made in the court.   Counsel  pointed out  

that PW-1 Promila stated that she knows the father’s name  

of  only  some of  the accused and she does not  know the  

addresses of the accused persons but the FIR contains all  

these details.  Counsel pointed out that PW-1 Promila stated  

in her cross-examination that her statement was read over  

to her but it was not intelligible to her. It was intelligible to  

the elder brother of her husband who told her that it was  

correctly recorded by the police.  Counsel submitted that it is  

clear  from  all  these  admissions  that  the  FIR  is  not  a  

spontaneous document but it  is the result of deliberations  

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and  afterthought.   It  is  likely  that  the  names  of  certain  

onlookers who did  not  share the common object  of  those  

against  whom  overt  acts  have  been  alleged,  have  been  

purposely included in the FIR.  Counsel pointed out that this  

Court has held in a series of decisions that in a case in which  

large number of accused persons are involved and they are  

sought to be roped in with the aid of Section 149 of the IPC  

on  the  basis  of  constructive  joint  liability,  the  rule  of  

prudence  must  be  applied.   The  court  has  to  consider  

whether it is safe to convict all the accused on the basis of  

omnibus evidence and if the court does not have before it  

some materials to lend assurance to the general allegations,  

then  benefit  of  doubt  must  be  given  to  the  accused.   In  

support of his submissions, counsel relied on the judgments  

of  this  Court  in  Sherey  &  Ors.   v.   State  of  Uttar  

Pradesh  1  ,  Akbar  Sheikh  &  Ors.   v.   State of West    

Bengal  2  , Pandurang Chandrakant Mhatre v.  State of    

Maharashtra  3   and  Debashis Daw & Ors.  v.  State of  

1 (1991) Supp. (2) SCC 437 2 (2009) 7 SCC 415 3 (2009) 10 SCC 773

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West Bengal4.   Counsel submitted that judgments of this  

Court  in  State  of  Andhra  Pradesh   v.   Thakkidiran  

Reddy5 and Lalji  v.  State of Uttar Pradesh6 cited by the  

respondents are not applicable to the present case.  They  

can be distinguished on facts.  Counsel pointed out that the  

trial court has disbelieved the story that the accused poured  

acid in the mouth of the deceased.  This indicates that the  

prosecution witnesses have exaggerated the case.  It would  

be, therefore, risky to convict the accused persons on the  

basis  of  such  evidence.   Counsel  submitted  that  the  

prosecution  has  not  successfully  established  the  motive.  

The prosecution is relying on the alleged identification of the  

accused by the witnesses in the court which does not inspire  

confidence.  Counsel  submitted  that  in  any  case,  all  the  

appellants-accused have completed  more  than 7  years  of  

imprisonment.   This  fact  may be taken into  consideration  

while dealing with the case.  

4 (2010) 9 SCC 111 5 (1998) 6 SCC 554 6 (1989) 1 SCC 437

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7. Mr. S.B. Sanyal, learned senior advocate appearing for  

A35-Satrughna  Patra,  A36-Duryadhan  Patra,  A28-Sambhu  

Samanta,  A13-Uttam  Samanta,  A16-Subal  Samanta,  A15-

Dipu  Samanta  and  A19-Rakhal  Dhara  endorsed  the  

submissions of Mr. Pradip Kumar Ghosh and pointed out that  

A35-Satrughna,  A36-Duryadhan  and  A28-Sambhu  are  not  

named in the FIR and in the statement made under Section  

161 of the Code but their names are found in the evidence  

given before the court.  The names of accused A19-Rakhal,  

A16-Subal Samanta and A15-Dipu have been mentioned in  

the FIR, but their names have not been mentioned by the  

eye-witnesses  in  their  statements  before  the  police.  

Therefore,  their  evidence  cannot  be  acted  upon.   PW-7  

Pratap Majhi does not mention the names of A3-Ranjit, A2-

Bishnu,  A6-Sudarsan,  A5-Pulin,  A14-Sambhu Jana,  A4-Sunil  

as  the  accused  persons  who  had  assaulted  deceased-

Hemanta, deceased-Gour and PW-13 Mandakini.    Counsel  

pointed out the omissions in the evidence of PW-2 Lakshmi,  

PW-3 Nilima, PW-4 Sarathi, PW-5 Ananta, PW-7 Pratap, PW-

12 Jamini and PW-13 Mandakini, which have been brought on  

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record by PW-19 P.I. Ghosh.   Counsel submitted that when  

evidence of eye-witnesses PW-2-Lakshmi, PW-3 Nilima, PW-4  

Sarathi, PW-5 Ananta, PW-12 Jamini and PW-13 Mandakini is  

in  substantial  variance  with  their  statements  made under  

Section 161 of the Code before the investigating officer, their  

evidence  cannot  be  acted  upon.   In  support  of  this  

submission,  counsel  relied  on  State  (represented  by  

Inspector  of  Police,  Tamil  Nadu)  v.   Sait  @  

Krishnakumar  7  , Sunil Kumar Sambhudayal Gupta (Dr.)    

&  Ors.   v.   State  of  Maharashtra  8   and  Subhash  v.  

State of Haryana9.   Counsel submitted that according to  

the  prosecution,  200/250 persons had assembled and the  

assembly  was  unlawful.   When  several  persons  who  had  

allegedly assembled were unarmed;  they  did  not  exhort  

others  and did not co-operate with the  named  accused,  it  

cannot   be  said that  they  shared  common  object   to  

commit   murder.    In  support  of  this  submission,  counsel  

relied on  Dhanna  v.  State of M.P.  10  , Kuldip Yadav &    

7 (2008) 15 SCC 440 8 (2010 13 SCC 657 9 (2011) 2 SCC 715 10 (1996) 10 SCC 79

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Ors.  v.  Stateof Bihar  11   and Waman & Ors.  v.  State of   

Maharashtra  12  .  Counsel pointed out that there is no clear  

finding  of  the  High  Court  that  the  common object  of  the  

assembly was to murder or that the assembly of the persons  

at all was aware of the object of the three assailants which is  

a must to convict the accused under Section 149 of the IPC.  

Counsel submitted that in the circumstances, the conviction  

and sentence deserve to be set aside.  

8. Mr.  Chanchal  K.  Ganguli,  learned advocate appearing  

for the respondent-State submitted that the prosecution has,  

by leading cogent evidence of eye-witnesses some of whom  

are  injured  eye-witnesses,  successfully  proved  that  the  

murder  of  deceased-Hemanta,  deceased-Gour  and  

deceased-Manik  was committed  by the accused.   Counsel  

submitted that the evidence of PW-15 Dr. Subimal and PW-

16  Dr.  Tapan  corroborates  the  eye-witness  account.   The  

defence could not prove the alibi set up by A1-Subal and A34  

Bhakti Bhusan Maity.  Counsel submitted that it is true that  

11 (2011) 5 SCC 324 12 (2011) 7 SCC 295

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the  eye-witnesses  are  related  to  the  deceased,  but,  their  

evidence cannot be discarded on that count.  The evidence  

of the interested witnesses can be relied upon if it inspires  

confidence.  In this connection, he relied on the judgments of  

this  Court  in  Brathi   @  Sukhdev  Singh  v.   State  of   

Punjab13 and  Shyamal  Ghosh   v.   State  of  West  

Bengal14.  Counsel submitted that the argument that some  

of the accused to whom overt act is not attributed deserve  

to  be  acquitted,  must  be  rejected.   Mere  presence  of  a  

person  in  the  unlawful  assembly  may  fasten  vicarious  

liability on him under Section 149 of the IPC. The prosecution  

is  not  obliged  to  prove  the  specific  overt  act  of  each  

accused.   In  this  connection,  he  relied  on  Lalji and  

Thakkidiram  Reddy.   Counsel  submitted  that  the  

identification of the accused in the court is held by this Court  

in  several  judgments  to  be  worthy  of  credence  and,  

therefore,  it  cannot  be  discarded.   In  this  connection,  

reliance  was  placed  on  Malkhansingh   v.   State  of  

Madhya Pradesh15 and  Sheo Shankar Singh  v.  State  13 (1991) 1 SCC 519 14 (2012) 7 SCC 646 15 (2003) 5 SCC 746

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of Jharkhand16.  Counsel further submitted that in a case of  

this  type  where  several  witnesses  have  been  examined,  

there are bound to be minor discrepancies in their evidence.  

Such  discrepancies  are  natural.   The  prosecution  story  

cannot  be  rejected  on  that  ground.   In  this  connection,  

counsel  relied  on  Leela Ram  v.   State of  Haryana  17  ,    

Rammi  v.   State  of  Madhya  Pradesh  18   and  Shyamal  

Gosh v.  State of West Benghal19.  Relying on Tika Ram  

v.  State of Madhya Pradesh20,  counsel  submitted that  

merely because the name of the accused is not mentioned in  

the FIR, it cannot be concluded that he is falsely involved in  

the case.  There may be other  cogent evidence on  record  

to  prove  his involvement as  in  this  case.   Therefore,  

absence  of  the  names   of  some of the accused in the FIR  

must  not  lead  to  their  acquittal.   Counsel  submitted  that  

since  the  prosecution  has  adduced  evidence  of  eye-

witnesses  which  inspires  confidence,  alleged  absence  of  

motive does not adversely affect its case.  In this connection,  

16 (2011) 3 SCC 654 17 (1999) 9 SCC 525 18 (1999) 8 SCC 649 19 (2012) 7 SCC 646 20 (2007) 15 SCC 760

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counsel relied on Sheo Shankar Singh and Bipin Kumar  

Mondal  v.  State of West Bengal  21  . Counsel submitted  

that it is true that some of the witnesses have turned hostile  

but it is well settled that the evidence of hostile witnesses  

need not be discarded as a whole and relevant parts thereof,  

which are admissible in law, can be used by the prosecution.  

In this connection, counsel relied on the judgments of this  

Court in Sk. Zakir  v.  State of Bihar  22  , C. Muniappan  v.    

State of Tamil Nadu  23  , Bhagwan Das  v.  State (NCT of    

Delhi)  24  , Mrinal Das  v.  State of Tripura  25   and Bhajju  

v.  State of Madhya Pradesh  26  .  Counsel submitted that it  

is possible that there are some minor instances of defective  

investigation in this case.  But, those defects do not dislodge  

the substratum of the prosecution story, which is proved by  

cogent evidence.  In this connection,  counsel  relied on the  

judgments  of  this  Court  in  Sheo  Shankar  Singh,  

Visveswaran  v.  State,27 C. Muniappan and  Shyamal  

21 (2010) 12 SCC 91 22 (1983) 4 SCC 10 23 (2010) 9 SCC 567 24 (2011) 6 SCC 396 25 (2011) 9 SCC 479 26 (2012) 4 SCC 327 27 (2003) 6 SCC 73

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Gosh. Counsel  submitted  that  there  is  overwhelming  

credible and clinching evidence against the accused.  The  

prosecution has proved its  case  beyond reasonable doubt  

and, therefore, the appeal be dismissed.  

9. PW-15  Dr.  Paramanick  has  reproduced  the  injuries  

suffered  by  deceased-Hemanta,  deceased-Manik  and  

deceased-Gour.  They indicate that they were attacked in a  

most  gruesome  manner.  The  fact  that  their  death  was  

homicidal cannot be and is not disputed.  It  must also be  

noted  at  the  outset  that  the  prosecution  story  that  the  

accused poured acid in the mouth of all the deceased has  

not been believed by the trial court. Keeping this in mind, we  

shall proceed to deal with the case.  

 10. PW-12 Jamini Dhara is the widow of one Ramani Dhara.  

The couple had five sons viz. Mohanta Dhara, PW-5 Ananta  

Dhara, Netai Dhara, deceased-Gour Dhara, deceased-Manik  

Dhara and deceased-Hemanta Dhara.  PW-1 Promila Dhara is  

the wife of Mohanta Dhara.  PW-4 Sarathi Dhara is the wife  

of PW-5 Ananta Dhara, PW-13 Mandakini Dhara is the wife of  

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deceased-Gour  Dhara.   PW-2  Lakshmirani  is  the  wife  of  

deceased  Hemanta  Dhara  and PW-3  Nilu  Dhara  @ Nilima  

Burman is their daughter.   

11. The  Dharas  reside  in  village  Brajaballavpur.   The  

murders took place in the said village on 14/5/1986.  The  

prosecution  story  is  disclosed  from  the  evidence  of  the  

complainant PW-1 Promila.  According to PW-1 Promila, on  

the day of incident at about 9/10 a.m., the goat of deceased-

Hemanta  damaged  the  paddy  of  A1-Subal;  juvenile  

delinquent-Gopal and his mother, whose house is in front of  

the  paddy  field,  beat  the  goat;  PW-3  Nila,  daughter  of  

deceased-Hemanta  protested;  thereupon  juvenile  

delinquent-Gopal  slapped  her;  there  was  exchange  of  

abusive  words;  juvenile  delinquent-Gopal  slapped  PW-2  

Lakshmi;   deceased-Hemanta  came  there  and  slapped  

juvenile  delinquent-Gopal,  took  him  to  the  bund  and  

detained  him for  sometime  and, thereafter, released him.  

Thereafter,  A3-Ranjit   roamed  the villages Brajaballavpur,  

Bijaynagar  and  Ramchandrapur  on  his  motor  cycle.  

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According to PW-1 Promila, she heard a sound of conch-shell.  

Around 200/250  people  assembled  on  the  bund  equipped  

with lathis, ballams, tara, iron rod and pipe.  They attacked  

the houses of the Dharas.   Deceased-Hemanta,  deceased-

Manik  and  deceased-Gour  inquired  as  to  what  was  the  

matter.  A3-Ranjit, A1-Subal, A2-Bistu gave a call to kill them  

and burn their houses.  A1-Subal assaulted deceased-Gour  

with iron rod, A2-Bistu assaulted deceased-Hemanta with a  

bamboo tara and A3-Ranjit  assaulted deceased-Manik with  

iron  pipe.    Deceased-Hemanta,  deceased-Manik  and  

deceased-Gour fell down on the ground.  PW-1 Promila and  

others requested A3-Ranjeet, A1-Subal and A2-Bistu not to  

assault  them, but they paid no heed to their  request and  

10/15  of  them started  assaulting  the  deceased and killed  

them.  PW-1 Promila identified A1-Subal, A2-Bistu, A3-Ranjit,  

A4-Sunil,  A8-Biswanath,  A19-Rakhal,  A20-Batul,  A18-Nentu,  

A21-Kengal, A22-Nikhil, A35-Satrughna, A36-Duryadhan, A9-

Joydeb,  A7-Nemai  in  the  court.   She  also  identified  A34-

Bhakti,  A30-Padmalochan,  A33-Sankar,  A26-Niranjan,  A27-

Tapan,  A31-Dima,  A32-Manick,  A23-Sibu,  A24-Dhiren,  A25-

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Subal Shee, A16-Subal Samanta, A17-Dulal, A12-Bhanu, A28-

Sambhu  Samanta,  A14-Sambhu  Jana,  A10-Tarapada,  A15-

Dipu, A5-Pulin and two juvenile delinquents and stated that  

they co-operated with the other accused in commission of  

offence.  She stated that the hands, legs and chest of all the  

deceased were fractured to pieces.  The accused dragged  

the deceased to the land of one Ravat Jana and A4-Sunil and  

A18-Nentu poured some acid like substance in the mouth of  

the deceased.  She stated that A3-Ranjit asked the crowd to  

burn  their  houses.   The  houses  of  deceased-Hamanta,  

deceased-Gour, PW-5 Ananta, Mohanta, Netai,  Kishori Bera  

and Prafulla Bera were set on fire by A1-Subal, A5-Pulin, A4-

Sunil and others.  She stated that their neighbours tried to  

extinguish the fire with the help of water, but their houses  

were burnt to ashes.  She stated that the police came before  

dusk,  saw the  dead bodies;  visited  the  burnt  houses  and  

recorded her statement.  She stated that after recording her  

statement,  the same was read over  to  her;  her  left  hand  

thumb impression was taken on it.  She identified the dead  

bodies and the police took away the dead bodies.    It may  

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be stated here that the FIR (Ex-8) was recorded on the basis  

of her statement.  

12. PW-1  Promila’s  evidence  has  come  under  heavy  

criticism.  It is true that she stated in her evidence that her  

complaint was read over to her but it was not intelligible to  

her.  It was intelligible to the elder brother of her husband  

PW-5 Ananta who told her that it was correctly recorded by  

the police.  It is argued that therefore the FIR is not, in fact,  

lodged by PW-1 Promila but is the creation of PW-5 Ananta  

and others.  It is not possible to accept this submission.  We  

find PW-1 Promila to be a natural and trustworthy witness.  

She appears to be a courageous lady who has, even after  

witnessing  three  gruesome  murders,  promptly  lodged  the  

FIR.  She frankly stated that she is illiterate.  In our opinion,  

PW-1  Promila  being  a  rustic  and  illiterate  woman,  some  

allowance must be made for the minor discrepancies in her  

evidence.  Her case that she found it difficult to understand  

what was being read over to her and, to find out whether her  

statement was correctly recorded, she took the help of PW-5  

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Ananta, the brother of her husband has a ring of truth.  We  

find nothing wrong in this exercise.  It is also true that she  

stated that she did not know the father’s name of some of  

the  accused  and  she  did  not  know  the  addresses  of  the  

accused but the FIR contains those details.  This again does  

not make PW-1 Promila an untrustworthy witness.  In fact,  

because of this frank admission, she comes across as a very  

honest  witness.   It  must  be  remembered  that  several  

persons were involved in this gruesome attack.  In a case of  

this type and magnitude, it would be difficult for any person,  

more so for  a rustic woman like PW-1 Promila,  to give all  

particulars  about  the  accused  as  required  by  the  

investigating officer.  It is clear from her statement that she  

knew the first name of all the accused.  She gave the first  

name of the accused.  There is, therefore, no manipulation of  

names.  The trial court has rightly observed that she appears  

to have collected the addresses and father’s name of some  

of the accused while her statement was being recorded.  It is  

pertinent to note that she has correctly identified most of the  

accused  in  the  court.   We  find  it  difficult  to  accept  the  

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submission of counsel for the appellant-accused that PW-1  

Promila’s evidence must be discarded on this count.  In our  

opinion,  the evidence of  PW-1 Promila  inspires  confidence  

and  reliance  can  be  placed  on  it.   There  are  no  major  

discrepancies in  her  evidence.   She has stood the test  of  

cross-examination very well.  

13. It would be appropriate now to refer to the two injured  

eye-witnesses, whose presence at the scene of the offence  

at the time of incident cannot be disputed.  PW-12 is Jamini,  

the mother of the deceased.  She stated that on the date of  

occurrence,  the  goat  of  deceased-Hemanta  damaged  the  

paddy of A1-Subal whereupon juvenile delinquent-Gopal and  

his  mother  beat  the  said  goat.   PW-3  Nila  daughter  of  

deceased-Hemanta  protested.  Thereafter,  there  was  

exchange  of  abuses  between  the  two  sides.   Juvenile  

delinquent-Gopal  slapped  PW-3  Nila.   Thereafter,  PW-2  

Lakshmi came there. Juvenile delinquent-Gopal slapped her.  

Deceased-Hemanta  slapped  juvenile  delinquent-Gopal  and  

took  him  to  the  bund.   Thereafter,  Gopal  was  released.  

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About 20 minutes after this incident, there was a sound of  

blowing of conch-shell.  A3-Ranjit was roaming around on his  

motorcycle in different villages.  According to PW-12 Jamini,  

around 200/230 persons encircled the houses of her sons.  

They were having tara, lathi, rod, iron pipe, katari, ballam,  

etc.  She could recognize A2-Bistu, A1-Subal, A6-Sudarshan,  

A7-Nemai,  A8-Bishu,  A9-Joydeb,  A17-Dulal,  A16-Subal  Sat,  

A11-Bistu Sat, A5-Pulin, A12-Bhanu, A29-Probod, A18-Nentu,  

A19-Rakhal,  A20-Batul,  A21-Kengal,  A22-Nikhil,  A4-Sunil,  

A36-Dhuryadhan and A35-Satrugna. She honestly stated that  

she could not recollect the names of other accused.   She  

then added that Shiba Paramanik, Bhakta Maity and Raghu  

Das were also there.  In the court, however, she committed  

mistakes in identifying A26-Niranjan, A30-Padmalochan and  

A34-Bhakta  Maity.  She  could  not  identify  A9-Bhatu.  She  

stated  that  when  the  deceased  enquired  why  so  many  

persons  had  encircled  their  house,  A2-Bistu  assaulted  

deceased-Hemanta  with  a  tara  on  his  leg  and  A1-Subal  

assaulted deceased-Gour with an iron rod on his head and  

A3-Ranjit assaulted deceased-Manik with an iron pipe on his  

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head.  She further stated that she caught hold of the hands  

and feet of the accused and requested them not to assault  

whereupon A1-Bistu assaulted PW-13 Mandakini with a katari  

on her head and A21-Kengal assaulted her with a katari on  

her right hand.  She stated that her three sons, who were  

half-dead, were dragged by the accused by pulling their legs  

to a paddy field of Pravat Jana.  They broke the hands, legs  

and chests of the deceased.  The deceased were shouting for  

water but the accused did not allow her to give them water.  

She stated that several houses of Dharas were burnt by the  

accused.  She has been extensively cross-examined.  It  is  

contended that her evidence should be rejected because she  

could not identify some of the accused correctly in the court.  

This  argument  does  not  appeal  to  us.   It  must  be  

remembered that when she gave her evidence, she was 65  

years  of  age.   She  was  deposing  about  the  incident  of  

14/5/1986  on  10/12/1990  i.e.  almost  four  years  after  the  

incident.   She had lost her three sons in the incident and  

must be terribly emotionally disturbed while giving evidence.  

Her evidence will have to be evaluated keeping this in mind.  

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Errors committed by her in identifying some of the accused  

cannot be taken against her. She is an injured eye-witness.  

Her  presence at  the scene of  offence cannot be doubted.  

We  are  pained  to  note  that  the  trial  court  permitted  the  

defence  to  subject  her  to  a  very  lengthy  rambling  cross-

examination. She has, however, come across as a credible  

witness.  We, therefore, hold that PW-12 Jamini is a reliable  

witness.   

14. PW-13 Mandakini  is  the wife  of  deceased-Gour.   She  

stated  that  on  the  day  of  incident,  goat  of  deceased-

Hemanta  damaged  the  paddy  of  A1-Subal.   Juvenile  

delinquent-Gopal and his mother beat that goat.  PW-3 Nila  

protested whereupon, juvenile delinquent-Gopal slapped her.  

Juvenile  delinquent-Gopal  also  slapped  PW-2  Lakshmi,  

mother of PW-3 Nila.  Deceased-Hemanta  separated them,  

slapped juvenile delinquent-Gopal, took him to the bund and  

made him sit there.  After sometime, he was allowed to go.  

Thereafter, the sound of conch-shell  was heard.  A3-Ranjit  

was found roaming on his motorcycle in different directions  

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in Ramchandrapur, Brajaballavpur and Kumarchak villages.  

About 250/300 people came there from all directions.  They  

were equipped with lathis, axes, iron pipes, iron rods, etc.  

They attacked Dharas’  houses.  She stated that,  she could  

recognize A3-Ranjit, juvenile delinquent-Gopal, A1-Subal, A2-

Bistu,  A11-Bistu  Samanta,  A19,  Rakhal,  A18-Nentu,  A20-

Batul,  A21-Kengal,  A22-Nikhil  and  A4-Sunil.  She  identified  

the said accused in the court.   She stated that deceased-

Hemanta, deceased-Gour and deceased-Manik came out of  

their  houses and enquired with those who had assembled  

there as to why they had come and encircled their houses  

whereupon  A2-Bistu  assaulted  deceased-Hemanta  with  a  

bamboo tara on his leg, A1-Subal assaulted deceased-Gour  

with  an  iron  rod  on  his  head  and  A3-Ranjit  assaulted  

deceased-Manik  with  an  iron  rod  on  his  head.   They  fell  

down.  She stated that they caught hold of the feet of the  

accused and requested them not to assault the deceased.  

Then A2-Bistu assaulted her with a katari on her head.  She  

fell down and became unconscious.  She was then shifted to  

Moyna  hospital.   After  she  became  conscious,  she  gave  

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statement  to  the  police.   According  to  her,  she  was  in  

hospital for two days.  After she returned from hospital, she  

found that her house was burnt.  Nothing has been elicitated  

in her cross-examination, which can suggest that she is not a  

reliable witness.  She has honestly stated that she had seen  

the assault on her husband and brothers-in-law. She became  

unconscious after she was assaulted and did not see what  

happened thereafter.  

 15. PW-2 Lakshmi is the wife of deceased-Hemanta.  She  

stated that when the goat of her husband was beaten by  

juvenile delinquent-Gopal, her daughter PW-3 Nila protested.  

Juvenile delinquent-Gopal and his mother abused her in filthy  

language.  Then juvenile delinquent-Gopal slapped PW-3 Nila  

whereupon PW-3 Nila began to weep. She abused juvenile  

delinquent-Gopal  and  his  mother.  PW-2  Lakshmi  further  

stated  that  juvenile  delinquent-Gopal  and his  mother  also  

assaulted her.  Thereafter, her husband deceased-Hemanta  

came  there.   He  slapped  juvenile  delinquent-Gopal  and  

detained him near the bund.   After  sometime,  he allowed  

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him  to  go.   Thereafter,  A3-Ranjit  roamed  around  nearby  

villages on his motorcycle.  After sometime, she heard the  

sound  of  conch-shell.   About  200/250  people  assembled  

there.   They  attacked  the  houses  of  Dharas.   They  were  

equipped with lathis, iron rods, iron pipes, chowkis, tangis,  

kataris,  etc.   She  could  recognize  A1-Subal,  A2-Bistu,  A3-

Ranjit, A10-Tarapada, A18-Nantu, A21-Kental, A22-Nikhil, A4-

Sunil,  A20-Batul,  A19-Rakhal,  A36-Dhuryadhan,  A35-

Satrugna,  juvenile  delinquent-Gopal,  A8-Bishwanath,  A7-

Nemai,  A9-Bhatu,  A5-Pulin,  A12-Bholu,  A6-Sudarshan,  

juvenile delinquent-Nirmal and others.  She stated that she  

can identify all of them.  She stated that juvenile delinquent-

Gopal  was  also  there.   She  identified  the  accused  and  

juvenile delinquents named by her, in the court.  She further  

stated that her husband deceased-Hemanta and deceased-

Manik enquired with the accused as to what was the matter.  

Then A1-Subal assaulted deceased-Gour with an iron rod on  

his hand, A2-Bistu assaulted deceased-Gour with a bamboo  

tara on his leg and A3-Ranjit assaulted deceased-Manik with  

an  iron  pipe  on  his  head.   She  further  stated  that  they  

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requested the accused not to assault them.  The accused  

told them that they would release them once for all.   She  

stated  that  she,  PW-12  Jamini,  PW-1  Promila  and  others  

dropped on their feet and requested them not to beat the  

victims.   But,  A22-Nikhil  assaulted  her.   A21-Kengal  

assaulted  PW-12  Jamini  and  A2-Bistu  assaulted  PW-13  

Mandamini.  Thereafter, the accused assaulted PW-5 Ananta  

by  hurling  brick-bats.   A18-Nentu  assaulted  deceased-

Hemanta with a tangi on his head.  She stated that 10/15  

persons continued to assault deceased-Hemanta, deceased-

Manik  and  deceased-Gour  till  they  succumbed  to  their  

injuries.  She stated that A1-Subal, A2-Bistu, A3-Ranjit, A8-

Biswanath,  A7-Nemai,  juvenile  delinquent-Nirmal,  A21-

Kengal,  A4-Sunil,  A22-Nikhil,  A19-Rakhal,  A20-Batul,  A18-

Nentu,  A12-Bholu,  A29-Prabodh  are  the  accused,  who  

assaulted the deceased and caused their death.  Then the  

accused dragged the deceased to the land by the side of a  

tank.  A3-Ranjit told the accused to set their houses on fire  

and drive them away.  Accordingly, A3-Ranjit, A4-Sunil, A5-

Pulin and some other persons set the houses of Dharas on  

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fire.   Thereafter,  the accused fled away.   Though she has  

been extensively cross-examined, the defence has not been  

able to make any dent in her evidence.  

16. PW-3 Nila daughter of deceased-Hemanta also stated  

that on the date of incident, their goat damaged crop of A1-

Subal.   Therefore,  the  wife  and  son  of  A1-Subal  started  

beating the goat.  She went there and protested whereupon  

juvenile  delinquent-Gopal  assaulted  her  and  his  mother  

abused her.  Thereafter, her mother PW-2 Lakshmi came and  

asked juvenile delinquent-Gopal why he assaulted PW-3 Nila  

whereupon he assaulted PW-2 Lakshmi and also abused her.  

She further stated that her father deceased-Hemanta came  

and slapped juvenile delinquent-Gopal and took him near the  

bund  and  then  released  him.   Thereafter,  A3-Ranjit  was  

moving around in nearby villages on his motorcycle.   She  

heard the sound of  a  conch-shell.   About  200/250 people  

assembled  there  and  attacked  their  houses.   They  were  

equipped  with  iron  pipes,  iron  rods,  kataris,  axes,  tangis,  

bamboo-taras, kanchas, chowkis.  She recognized A1-Subal,  

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A2-Bistu and A3-Ranjit, A5-Pulin, juvenile delinquent-Nirmal,  

A6-Sudarshan, A9-Bhatu, A7-Nemai, A8-Biswanth, A17-Dulal,  

A15-Dipu, A12-Bholu, A4-Sunil, A22-Nikhil, A21-Kengal, A18-

Nentu,  A20-Batul,  juvenile  delinquent-Gopal,  A28-Sambhu,  

A14-Sambhu, juvenile delinquent-Gopal Jana, A12-Bhanu and  

one Sibhu Maity.     She frankly stated that she could not  

recollect  the  names  of  other  accused.   She  made  some  

mistakes  while  identifying  A5-Pulin,  A6-Sudarshan,  A2-

Bistupada and A32-Shibu Parmanik. She further stated that  

deceased-Hemanta,  deceased-Manik  and  deceased-Gour  

enquired with the accused as to what was the matter.  A1-

Subal, A2-Bishnupada and A3-Ranjit told them to wait and  

see  the  consequences.   Thereafter,  A1-Subal  assaulted  

deceased-Gour  with  an  iron  rod  on  his  head,  A2-Bistu  

assaulted  deceased-Hemanta  with  a  bamboo-tara  on  his  

thigh and A3-Ranjit assaulted Manik with an iron pipe on his  

head.   The three fell  down on the ground whereupon her  

mother PW-2 Lakshmi, PW-13 Mandakini, PW-12 Jamini, PW-4  

Sarathi and PW-5 Ananta came and dropped down on the  

feet of the assailants and told them not to assault.  PW-12  

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Jamini was assaulted with a katari on her right palm by A21-

Kengal.  When PW-13 Mandakini tried to resist the assault  

upon her husband deceased-Gour, she was assaulted with a  

katari  on  her  head.   She  further  stated  that  the  said  

assailants  continued  to  assault  deceased-Gour,  deceased-

Hemanta and deceased-Manik and threw away their bodies  

on a land by the side of a tank.  Thereafter, A4-Sunil and A5-

Pulin set the houses of the Dharas on fire.  The  defence  

has not been able to make any dent in the prosecution story  

through the  cross-examination  of  this  witness.   It  is  true,  

however,  that  while  identifying  some of  the  accused,  she  

had made mistakes but then, she was also deposing in the  

court  almost  four  years  after  the  incident  and,  therefore,  

there are bound to be some discrepancies in her evidence.  

On vital parts of the prosecution story, she is consistent. We  

find no reason to disbelieve her.  

17. PW-4 Sarathi and PW-5 Ananta have corroborated PW-1  

Promila, PW-2 Lakshmi, PW-3 Nila, PW-12 Jamini and PW-13  

Mandakini  on  the  vital  aspects  of  the  prosecution  story.  

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Their evidence particularly about the assault on deceased-

Hemanta, deceased-Gaur and deceased-Manik is consistent  

with the evidence of above-stated witnesses.  PW-4 Sarathi  

and PW-5 Ananta have also  corroborated  the  evidence of  

other witnesses as regards the assault on PW-13 Mandakini  

with a katari on her head by A2-Bistu and assault on PW-12  

Jamini  with  a  katari  on  her  palm  by  A21-Kengal.   PW-4  

Sarathi  also  referred  to  setting  on  fire  of  the  houses  of  

Dharas.   PW-4 Sarathi  made some mistakes in  identifying  

some of the accused but as we have already noted, evidence  

of  witnesses  was  recorded  about  four  years  after  the  

incident.  Some mistakes would, therefore, not affect their  

evidence adversely.  

18. In  the  cross-examination  of  PW-19  PI  Ghosh  -  the  

investigating  officer,  certain  omissions  in  the  evidence  of  

prosecution  witnesses  have  been  brought  on  record.  

Surprisingly, his attention was not drawn to the evidence of  

PW-1 Promila at all.  The evidence of PW-19 PI Ghosh has not  

been happily recorded.  In any case, the omissions are minor  

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omissions pertaining to non-mentioning of weapons carried  

by the accused or not referring to the parts of the bodies of  

the deceased on which the assault was made.  Some of the  

witnesses have omitted to mention the names of some of  

the accused.  But, in our opinion, on the substratum of the  

prosecution story, there are no omissions or contradictions.  

While  analyzing  the  evidence,  we  have  kept  in  mind  the  

manner  in  which  several  accused  persons  armed  with  

weapons attacked the deceased.  In an attack of this type, in  

the nature of things, there are bound to be some omissions  

or discrepancies in the evidence of witnesses.  Experience  

shows  that  witnesses  do  exaggerate  and  this  Court  has  

taken note of such exaggeration made by the witnesses and  

held  that  on  account  of  embellishments,  evidence  of  

witnesses  need  not  be  discarded  if  it  is  corroborated  on  

material  aspects  by  the  other  evidence  on  record.  

Therefore, the fact that some witnesses have not referred to  

certain  accused  in  their  police  statements  but  have  

attributed role  to  them in  the  court,  does  not  lead  us  to  

conclude,  in  the  peculiar  facts  of  this  case,  that  the  said  

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witnesses are not credible witnesses.  In this connection, we  

may usefully refer to Leela Ram on which reliance is placed  

by learned counsel for the State.  The following observations  

of this Court are material.  

“12. It is indeed necessary to note that one hardly   comes across a witness whose evidence does not   contain  some  exaggeration  or  embellishment  –   sometimes  there  could  even  be  a  deliberate   attempt to offer embellishment and sometimes in   their  overanxiety  they  may  give  a  slightly   exaggerated account.  The court can sift the chaff   from the  grain  and  find  out  the  truth  from the   testimony of the witnesses.  Total repulsion of the   evidence is unnecessary.  The evidence is to be   considered  from  the  point  of  view  of   trustworthiness.   If  this  element  is  satisfied,  it   ought  to  inspire  confidence  in  the  mind  of  the   court  to  accept  the  stated  evidence though not   however in the absence of the same.”  

19. It  is  true  that  the  prosecution  has  relied  on  the  

evidence of interested witnesses but, interested witness is  

not  necessarily  a  bad  witness.   In  fact,  if  the  witness  is  

related to the deceased, there is less chance of his leaving  

aside the real assailants.  The evidence of interested witness  

has to be analyzed with care.  But, once the court comes to  

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the  conclusion  that  it  is  truthful  and  in  accord  with  the  

relevant  circumstances  on  record,  the  court  should  not  

hesitate  to  accept  it  and  record  conviction  on  the  basis  

thereof.   In this case, all  the eye-witnesses are consistent  

about  the  prosecution  case  as  regards  assault  on  the  

deceased and setting on fire of the houses of Dharas.  We  

are, therefore, not inclined to reject their evidence on the  

ground that they are related to the deceased.  As already  

noted, two of the eye-witnesses i.e. PW-12 Jamini and PW-13  

Mandakini  are  injured  witnesses,  whose  presence  at  the  

scene of offence cannot be doubted.  They completely bear  

out the prosecution case.  

20. Counsel  for  the  appellant  submitted  that  the  

identification of the accused in the court should not be relied  

upon.  We have no hesitation  in  rejecting  this  submission.  

The  attack  was  dastardly.   It  is  difficult  to  forget  such  

heineous  episode.   The  injuries  suffered  by  the  deceased  

show how brutally they were attacked.  The eye-witnesses  

had  seen  the  accused  from  close  quarters.  There  is,  

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therefore,  nothing  unusual  if  the  eye-witnesses  identified  

some of the accused in the court.  This Court has accepted  

the evidence of identification in the court in several cases  

(see  Malkhansingh.)  This  submission must,  therefore,  be  

rejected.   It is pertinent to note that some witnesses have  

honestly  stated  that  they  could  not  identify  some  of  the  

accused.   That shows that they were not tutored.   It  was  

argued that the prosecution has not been able to establish  

motive.  The incident appears to have taken place because  

juvenile  delinquent-Gopal  was  detained  by  deceased-

Hemanta.  Assuming, however, that this is a case of weak  

motive or that the prosecution has not established motive,  

that will not have adverse impact on its case because when  

there is  credible evidence of eye-witnesses on record, the  

motive pales into insignificance.  

21. It  is  necessary also to state that the defence of alibi  

taken by A1-Subal has been carefully examined by the trial  

court as well as the High Court. The witnesses examined by  

A1-Subal have rightly been disbelieved.  We concur with the  

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trial  court  and the High Court  that  A1-Subal has failed to  

prove the defence of alibi.  

22. We  must  now  deal  with  the  submission  that  all  the  

accused  cannot  be  convicted  for  murder  with  the  aid  of  

Section 149 of the IPC because the prosecution story that all  

the accused were armed with weapons and they attacked  

the deceased is based on omnibus statements of the eye-

witnesses.  In order to deal with this submission, we have  

reproduced the material portions of the evidence of the eye-

witnesses.  It is now necessary to refer to the judgments of  

this Court which have been relied upon by the counsel on  

this  point  so  that  the  evidence  of  the  witnesses  can  be  

examined in their light.  

23. In Lalji. this Court observed that Section 149 of the IPC  

makes  every  person  who  is  the  member  of  an  unlawful  

assembly at the time of committing of the offence guilty of  

that offence.   It creates a constructive or vicarious liability  

of the members of the unlawful assembly for the unlawful  

acts committed pursuant to the common object by any other  

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member of this assembly. However, the vicarious liability of  

the members of the unlawful assembly extends only to the  

acts done in pursuance of the common object of the unlawful  

assembly,  or  to  such  offences  as  the  members  of  the  

unlawful  assembly  knew  to  be  likely  to  be  committed  in  

prosecution of that object. Once the case of a person falls  

within the ingredients of the section, the question that he did  

nothing with his own hands, would be immaterial, because  

everyone must be taken to have intended the probable and  

natural results of the combination of the acts in which he  

joined and it is not necessary that all the persons forming an  

unlawful assembly must do some overt act.  It was further  

observed  that  once  the  court  holds  that  certain  accused  

persons  formed  an  unlawful  assembly  and  an  offence  is  

committed by any member of the assembly in prosecution of  

the  common  object  of  that  assembly,  or  such  as  the  

members of the assembly knew to be likely to be committed  

in prosecution of that object, every person who at the time  

of  committing  of  offence  was  a  member  of  the  same  

assembly  is  to  be  held  guilty  of  that  offence.  This  Court  

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further observed that after  such a finding it  would not be  

open to the court to see as to who actually did the offensive  

act  or  require  the  prosecution  to  prove  which  of  the  

members did which of the offensive acts.  The prosecution  

would have no obligation to prove it.   On the facts of the  

case before it, this Court held that after having held that the  

appellants formed an unlawful assembly carrying dangerous  

weapons with the common object of resorting to violence, it  

was  not  open  to  the  High  Court  to  acquit  some  of  the  

members  on  the  ground  that  they  themselves  did  not  

perform any violent act, or that there was no corroboration  

of their participation. In other words, having held that they  

formed  an  unlawful  assembly  and  committed  an  offence  

punishable with the aid of Section 149 of the IPC, the High  

Court erred in examining which of the members only actively  

participated and in acquitting those who, according to the  

court,  did  not  so  participate.  Doing  so  would  amount  to  

forgetting  the  very  nature  and  essence  of  the  offence  

created by Section 149 of the IPC.    

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24. In  Sherey, 25  appellants  were  tried  for  offences  

punishable under Sections 147, 148, 302, 307, 323 and 325  

all read with Section 149 of the IPC in respect of an incident  

of rioting.  The rioting occurred because of the dispute over  

a grove between Hindus and Muslims.  Twenty five Muslims  

attacked  Hindus.  Three  Hindus  died.   Six  eye  witnesses  

deposed  about  the  incident.  PW-1  complainant  gave  a  

detailed version and attributed overt acts to nine accused.  

In  deposition,  he  named  five  more  persons  who  also  

attacked the deceased. Regarding the others, he mentioned  

in an omnibus way that they were armed with lathis. He did  

not attribute any overt act to any one of them.  This Court  

observed that in the circumstances, it was difficult to accept  

the  prosecution  case  that  the  other  appellants  were  

members  of  the  unlawful  assembly  with  the  object  of  

committing the offences with which they were charged.  This  

Court expressed that it was highly unsafe to apply Section  

149 of the IPC and make everyone of them constructively  

liable.   This  Court  further  observed  that  when  there  is  a  

general  allegation  against  a  large  number  of  persons  the  

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Court  naturally  hesitates  to  convict  all  of  them  on  such  

vague evidence.   Some reasonable circumstance must  be  

found out  to  lend assurance.  It  was further  observed that  

from that point of view it was safe only to convict the  nine  

accused  whose  presence  was  not  only  consistently  

mentioned from the stage of FIR but also to whom overt acts  

were attributed. This Court concluded that the fact that they  

were armed with weapons and attacked the victims shows  

that they were members of an unlawful assembly with the  

common object  of  committing  murder  and  other  offences  

with which they were charged.  

25. In  Thakkidiram Reddy, the case of  the prosecution  

was  that  the  21  accused  in  the  dead  of  night  formed  

themselves into an unlawful assembly armed with weapons  

and went to the house of the deceased.  They attacked the  

inmates of the house of one Gankidi Reddy in which Gankidi  

Reddy lost his life.  The accused, thereafter, left the place.  

The trial  court  acquitted 10 of  them and convicted A1 to  

A11, inter alia, under Section 148 and Section 302 read with  

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Section 149 of the IPC.   In the appeal, the High Court set  

aside the convictions of A2 to A11 under Sections 148 and  

302  read with  Section  149  of  the  IPC  and  maintained  all  

other convictions.   The State carried an appeal to this Court.  

This Court referred to its previous judgments in Masalti  v.  

State of U.P.28 and   Lalji and observed that  from these  

judgments,  it  is  evident  that  to  ascertain  whether  a  

particular person shared the common object of the unlawful  

assembly,  it  is  not  essential  to  prove  that  he  committed  

some illegal  overt  act  or  had  been  guilty  of  some illegal  

omission  in  pursuance of  the  common object.   Once it  is  

demonstrated  from  all  the  facts  and  circumstances  of  a  

given  case  that  he  shared  the  common  object  of  the  

unlawful assembly in furtherance of which some offence was  

committed – or he knew was likely to be committed – by any  

other person, he would be guilty of that offence.  This Court  

further observed that undoubtedly, commission of an overt  

act by such a person would be one of the tests to prove that  

he shared the common object,  but  it  is  not the sole test.  

28 AIR 1965 SC 202

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This Court rejected the submission that some of the accused  

had caused simple injuries and, hence, they did not share  

common object to murder and observed that the manner in  

which the incident took place clearly proved that even if this  

Court were to assume that those accused did not share the  

common  object  of  committing  the  murder,  they,  being  

members of the unlawful assembly certainly knew that the  

murder was likely to be committed by A1 in prosecution of  

the common object so as to make them liable under Section  

302 read with the second part of Section 149 of the IPC.  In  

the circumstances, order of acquittal of A2 to A5 and A9 of  

the charges under Sections 148 and 302 read with Section  

149 of the IPC recorded by the High Court was set aside and  

the  order  of  the  trial  court  convicting  them  for  the  said  

offences was restored.   

26. In  Akbar Sheikh,   in the dead of night, the accused  

attacked  the  house  of   PW-9  Ashraful,  the  son  of  the  

complainant.  The complainant was informed about it.  He  

came  out  of  his  house  and  saw  that  about  100  persons  

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armed  with  deadly  weapons  had  gathered  there.   They  

attacked Samsul.   The house of  Akramul  was set  on fire.  

They attacked Akramul,  the son of PW-9 Ashraful  and the  

wife of Akramul.  Akramul was kidnapped and killed near the  

pond.  The prosecution story rested in the evidence of the  

complainant and PW-9 Ashraful.   The complainant had not  

named Asgar Sheikh, Kuddus Sheikh and Kudrat Sheikh but  

they had been named by PW-9 Ashraful.  The complainant  

and PW-9 Ashraful had named Kanku Sheikh as a miscreant.  

The  question  which  arose  for  consideration  was  as  to  

whether some of the appellants who had not committed any  

overt  act  must  be held  to  be  part  of  the unlawful  act  or  

whether they shared common object of the main accused.  

Several decisions of this Court on the scope of Section 149 of  

the IPC were noticed by this Court and it was observed that  

the earlier view favouring strict application of constructive  

liability was not, later on, strictly adhered to and in some of  

the decisions, this Court proceeded to determine the issue  

on the factual  matrix obtained therein.   Reflecting on the  

facts before it, this Court observed that in such cases, the  

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rule of prudence should be applied.  Something more than  

their being cited as an accused in a witness box would be  

necessary.  This Court further observed that the court must  

have before it some materials to form an opinion that the  

accused had shared a common object.  Referring to the two  

accused, who had been named by both the witnesses, this  

Court  observed that  even against  them,  no overt  act  had  

been attributed and, therefore, doubt arises as regards their  

presence  and  or  sharing  of  common  object.   This  Court  

adverted to the gruesome nature of the crime and held that  

even  then  it  cannot  lose  sight  of  the  fact  that  a  person  

should not suffer rigorous imprisonment for life although he  

might have just been a bystander without anything more.  

Observing  that  there  was  no  clinching  evidence  against  

those accused, this Court acquitted them.

27. In Pandurang  Chandrakant Mhatre, after adverting  

to  relevant  judgments,  this  Court  observed  that  for  

determination of common object of unlawful assembly,  the  

conduct of each of the members of the unlawful assembly,  

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before and at the time of attack is of relevant consideration.  

At a particular stage of incident, what is the object of the  

unlawful assembly is a question of fact and that has 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.

28. In  Waman,  this  Court  held  that  whenever  the  court  

convicts any persons of any offence with the aid of Section  

149 of the IPC, a clear finding regarding the common object  

of the assembly must be given and the evidence disclosed  

must show not only the nature of the common object but  

also that the object was unlawful.  In order to attract Section  

149 of the IPC, it must be shown that the incriminating act  

was  done  to  accomplish  the  common  object  of  unlawful  

assembly.  In that case, there was no recovery of weapon  

from A12 therein, but weapons were recovered from other  

accused  and  prosecution  witnesses  asserted  that  A12  

therein dealt a blow of iron pipe on the deceased.  This Court  

held that this was sufficient to attract Section 149 of the IPC.  

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29. The above judgments outline the scope of Section 149  

of  the  IPC.   We  need  to  sum-up  the  principles  so  as  to  

examine the present case in their light.  Section 141 of IPC  

defines unlawful assembly to be an assembly of five or more  

persons.   They  must  have  common  object  to  commit  an  

offence.   Section  142  of  the  IPC  postulates  that  whoever  

being aware of facts which render any assembly an unlawful  

one intentionally joins the same would be a member thereof.  

Section 143 of the IPC provides for punishment for being a  

member  of  unlawful  assembly.   Section  149  of  the  IPC  

provides  for  constructive  liability  of  every  person  of  an  

unlawful  assembly  if  an  offence  is  committed  by  any  

member thereof in prosecution of the common object of that  

assembly  or  such  of  the  members  of  that  assembly  who  

knew to  be  likely  to  be committed  in  prosecution of  that  

object.  The most important ingredient of unlawful assembly  

is  common  object.   Common  object  of  the  persons  

composing that assembly is to do any act or acts stated in  

clauses ‘First’,  ‘Second’, ‘Third’,  ‘Fourth’ and ‘Fifth’ of that  

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section.  Common object can be formed on the spur of the  

moment.   Course of  conduct  adopted by the members  of  

common assembly is a relevant factor.  At what point of time  

common  object  of  unlawful  assembly  was  formed  would  

depend  upon  the  facts  and  circumstances  of  each  case.  

Once the case of the person falls within the ingredients of  

Section 149 of the IPC, the question that he did nothing with  

his  own  hands  would  be  immaterial.   If  an  offence  is  

committed  by  a  member  of  the  unlawful  assembly  in  

prosecution  of  the  common  object,  any  member  of  the  

unlawful  assembly  who  was  present  at  the  time  of  

commission of offence and who shared the common object  

of that assembly would be liable for the commission of that  

offence even if  no overt act was committed by him.  If  a  

large  crowd  of  persons  armed  with  weapons  assaults  

intended victims, all may not take part in the actual assault.  

If  weapons carried by some members were not used, that  

would not absolve them of liability for the offence with the  

aid of Section 149 of the IPC if they shared common object of  

the unlawful assembly.  

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30. But this concept of constructive liability must not be so  

stretched  as  to  lead  to  false  implication  of  innocent  

bystanders.   Quite  often,  people  gather  at  the  scene  of  

offence out of curiosity.  They do not share common object  

of the unlawful assembly.  If  a general allegation is made  

against large number of people, Court has to be cautious.  It  

must guard against the possibility of convicting mere passive  

onlookers  who  did  not  share  the  common  object  of  the  

unlawful  assembly.    Unless  reasonable  direct  or  indirect  

circumstances lend assurance to the prosecution case that  

they shared common object of the unlawful assembly, they  

cannot be convicted with the aid of Section 149 of the IPC.  It  

must be proved in each case that the person concerned was  

not only a member of the unlawful assembly at some stage,  

but at all the crucial stages and shared the common object  

of the assembly at all stages.  The court must have before it  

some materials to form an opinion that the accused shared  

common object.  What  the common object  of  the unlawful  

assembly  is  at  a  particular  stage  has  to  be  determined  

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keeping in view the course of conduct of the members of the  

unlawful  assembly before and at  the time of  attack,  their  

behaviour at or near the scene of offence, the motive for the  

crime,  the arms carried by them and such other  relevant  

considerations.  The  criminal  court  has  to  conduct  this  

difficult  and meticulous  exercise  of  assessing  evidence  to  

avoid roping innocent people in the crime.  These principles  

laid  down  by  this  Court  do  not  dilute  the  concept  of  

constructive liability.  They embody a rule of caution.  

31. We shall now state the conclusions drawn by us after  

applying  the  above  principles.  The  attack  has  been  

meticulously  and  consistently  described  by  the  eye-

witnesses.  It is true that the weapons carried by some of the  

accused  are  specifically  named  by  the  witnesses  but  the  

weapons carried by some accused have not been named by  

some.  However, all the witnesses have stated that all the  

accused  were  carrying  weapons.   The  evidence  discloses  

that several persons pounced on the deceased and attacked  

them mercilessly with weapons.  The attack was so heinous  

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and scary that the witnesses may not have noted the type of  

weapons carried by each accused.  At the cost of repetition,  

we must mention that the evidence was given by witnesses  

after about four years.   In the facts of this case, it  is not  

possible for us to dismiss this evidence as omnibus evidence.  

Having  carefully  perused  the  evidence,  we  have  no  

hesitation  in  recording  that  this  is  not  a  case  where  any  

innocent bystanders are roped in the crime with the aid of  

Section  149  of  the  IPC.   All  the  accused  came  after  the  

conch-shell  was  blown.   They  gave  clarion  calls.   They  

exhorted others to kill the Dharas.  They burnt the houses of  

Dharas.  They killed the Dharas even though the witnesses  

came and requested not to attack them.  Two of the accused  

attacked  two  ladies  with  katari.   After  the  murder  was  

committed, they picked up the dead-bodies and threw them  

on the land near the bund and then they fled away.  Their  

conduct before the attack, at the time of the attack, after the  

attack and near the scene of offence clearly indicates that  

they were members of the unlawful assembly, the common  

object of which was to murder the Dharas and set fire to  

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their houses.  In our opinion, there are sufficient direct and  

indirect  circumstances  on  record  which  lend assurance to  

the  prosecution  story  that  all  the  accused  except  A26-

Niranjan,  A28-Sambhu,  A29-Probodh,  A35-Satrughnan  and  

A36-Duryadhan whose case  stands  on  a  different  footing,  

had  common  object  of  the  unlawful  assembly  and  in  

prosecution of the common object of the unlawful assembly,  

they  killed  the  three Dharas,  injured  some witnesses  and  

burnt the houses of Dharas.  In the facts of this case, those  

to whom, overt act is not attributed or those who might not  

have used the weapons would also be liable to be convicted  

for murder and other offences with the aid of Section 149 of  

the  IPC  because  they  were  members  of  the  unlawful  

assembly at all crucial stages and shared common object of  

the assembly at all stages.  The prosecution has therefore  

successfully  proved  its  case  against  all  appellant-accused  

except  A26-Niranjan,  A28-Sambhu,  A29-Probodh,  A35-

Satrughnan  and  A36-Duryadhan  whose  case  stand  on  a  

different footing for the reasons we shall now state.  

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32. So  far  as  A26-Niranjan,  A28-Sambhu,  A29-Probodh,  

A35-Satrughnan  and  A36-Duryadhan  are  concerned,  their  

names are not mentioned in the FIR by PW-1 Promila.  As  

already  noted,  FIR  was  read  out  to  PW-1  Promila  by  the  

investigating officer.   As she could not  understand it,  she  

took the help of PW-5 Ananta, who was present there.  He  

told her that it was correctly recorded.  We have also noted  

that PW-1 Promila gave the first name of all  the accused,  

therefore, there is no manipulation of names.  She did not  

however know the father’s name of some of the accused and  

addresses of the accused. The trial court has stated that she  

must  have  collected  these  particulars  while  her  FIR  was  

being recorded.  We have concurred with the trial court on  

this  aspect  and  found  nothing  wrong  with  this  exercise  

considering the fact that all the names of the accused were  

stated by her and only certain particulars required by the  

investigating officer were gathered by her from others.  But  

one thing is certain from this evidence that recording of FIR  

must have taken sometime.   It  was read over to her and  

because it was not understood by her, it was explained to  

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her by PW-5 Ananta.  In such meticulous exercise, if PW-1  

Promila  missed  the  names  of  A26-Niranjan,  A28-Sambhu,  

A29-Probodh,  A35-Satrughnan  and  A36-Duryadhan  it  is  of  

some significance.  It is true that in the evidence, she has  

referred to them.  Some other witnesses have also referred  

to them.  Some of them have attributed role to them.   It is  

true that absence of the name of an accused in the FIR is not  

always  indicative  of  his  innocence because  there  may be  

some  other  clinching  evidence  on  record  to  establish  his  

complicity.  But, in the aforementioned peculiar facts of this  

case, because of the absence of the names of these accused  

in the FIR, a doubt is created in the mind as to whether they  

could  be  really  involved  in  the  offence.  This  does  not  

however,  make  the  evidence  of  PW-1  Promila  and  other  

witnesses unreliable.  We have already noted that witnesses  

are prone to exaggeration and the court has to sift the chaff  

from the grain and find out the truth from the testimony of  

the witnesses (See  Leela Ram).  While we are sure about  

the involvement of all other appellants-accused in the crime  

in question and we are of the confirmed opinion that their  

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conviction with the aid of Section 149 of the IPC is perfectly  

justified, we feel that so far as A26-Niranjan, A28-Sambhu,  

A29-Probodh,  A35-Satrughnan  and  A36-Duryadhan  are  

concerned, evidence on record gives rise to suspicion about  

their  involvement.   But  it  is  well  settled  that  suspicion,  

however strong, is not enough to convict a person.  Absence  

of their names in the FIR in the abovementioned facts, lead  

us to give them benefit of doubt.

33. In the circumstances, the appeal is partly allowed.  A26-

Niranjan Das, A28-Sambhu Samanta, A29-Probodh Jana, A35-

Satrughnan  Patra  and  A36-Duryadhan  Patra  are  given  

benefit of doubt and acquitted of all the offences with which  

they were charged.  They shall be forthwith released from  

custody unless otherwise required in any other case.  Their  

bail bonds shall stand discharged.   

34. Conviction  and  sentence  of  A1-Subal  Ghorai,  A2-

Bishnupada  Ghorai,  A4-Sunil  Senapati,  A5  Pulin  Sat  @  

Samanta,  A6-Sudarshan  Ghorai,  A7-Nemai  Ghorai,  A8-

Biswanath Ghorai, A9-Joydeb Ghori @ Bhatu, A10-Tarapada  

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Samanta,  A11-Bistu  Samanta,  A12-Bhanu  Samanta,  A13-

Uttam  Samanta  @  Bhalu,  A14-Sambhu  Jana,  A15-Dipu  

Samanta @ Dipak, A19-Rakhal Dhara, A20-Batul Dhara, A21-

Kengal Senapati, A22-Nikhil Senapati and A23-Sibu Pramanik  

is confirmed.   

35. The appeal is disposed of in the aforestated terms.  

36. Before parting, we must express that the investigation  

of this case is far from satisfactory and recording of evidence  

is done in a casual manner.  Justice is done only because of  

the inherent strength of the prosecution case and credible  

evidence  of  the  honest  rustic  witnesses.   Sessions  cases  

involve the rights of the victims and rights of the accused.  

Even the society has a great stake in the proper conduct of  

sessions  cases  because  they  have  relevance  to  the  

maintenance  of  law  and  order.  Investigation  of  criminal  

cases must, therefore, be done very carefully and trials must  

be conducted with a sense of responsibility.  

……………………………………………..J. (AFTAB ALAM)

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……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, APRIL 2, 2013.

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