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CASE NO.:

Appeal (crl.) 728 of 1997

PETITIONER:

Chanakya Dhibar (Dead)

RESPONDENT:

State of West Bengal and Ors.

DATE OF JUDGMENT: 19/12/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

The informant has filed this appeal questioning judgment of

acquittal rendered by a learned Single Judge of the Calcutta High Court

acquitting five respondents (hereinafter referred to as the 'accused' by

their respective names). Since he has died during the pendency of the

appeal, an application for substitution by his legal representatives has

been filed which is allowed.

The trial Court found the respondents guilty of offences

punishable under Sections 148 and 304 Part I read with Section 149 of

the Indian Penal Code, 1860 (in short the 'IPC'). Law was set in motion

by PW-1(Chanakya) on the accusation that Jaba Dhibar (hereinafter

referred to as the 'deceased') was assaulted severely by five

respondents on the date of occurrence i.e. on 16.9.1985 at about 9.45

p.m. Naran Dhibar (PW-3) who was accompanying him saw the assault by

accused Mana Bhattacharjee and fearing assaults on him ran away and

informed the family members of the deceased. On hearing about the

assaults, the informant, his elder brother Naran and Sandhya, wife of

the deceased (PW-2) went to the spot. When they arrived there finding

the deceased with bleeding injuries, took him to the Bankura hospital on

police jeep. Apart from PW-3, a rickshaw puller Pradip Das (PW-5) was

examined to show that he has seen the deceased being surrounded by

accused persons and assaulted him. The first information report was

lodged at about 10.25 p.m. in which the names of the five respondents

were indicated. Sub-Inspector (PW-9) attached to the Bankura Police

Station took up investigation. The doctor (PW-4) who examined the

deceased found a sharp cut injury on top of the deceased's skull. He was

attended to by other doctor (PW-15). He continued to be under treatment

till 13.10.1985 when he was shifted to S.S.K.M. hospital, Calcutta and

ultimately he breathed his last on 8.11.1985. Post mortem was conducted

by PW-18 who opined that the death was due to septicemia. The injury

was, according to him, sufficient in the ordinary course of nature to

cause death and that it was homicidal. After completion of

investigation, charge sheet was placed for commission of offence

punishable under Sections 147, 148, 304 read with Section 149 IPC.

Charges were framed under Sections 148 and 304 Part I read with Section

149 IPC. Accused persons pleaded innocence. According to the defence

plea as evident from the cross examination of prosecution witnesses and

statement of the accused persons recorded under Section 313 of the Code

of Criminal Procedure, 1973 (in short the 'Code') the accused persons

were falsely implicated out of grudge. People of Pathakpara locality

made attempts to evict the prostitutes from the locality in between

Pathakpara and Keotpara, which was strongly opposed by Chanakya (PW-1).

After considering the evidence on record, the trial Court held

that accused persons were guilty of offence punishable under Sections

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148 and 304 Part I read with Section 149 IPC. Each of the accused was

sentenced to undergo rigorous imprisonment for seven years and to pay a

fine of Rs.1,000/- with default stipulation so far as offence punishable

under Section 304 Part I read with Section 149 IPC and two years for the

offence punishable under Section 148 IPC.

The convicted accused persons filed appeal before the Calcutta

High Court. The High Court by the impugned judgment held that the two

witnesses on whose evidence prosecution heavily relied on were not

truthful witnesses. It was not explained as to how the accused persons

would know the movements of the deceased, when both PWs 1 and 3 accepted

their presence nearby the place of occurrence was not known to anybody.

PW-5 could not have also seen the occurrence which was far away from the

road. PW-3 could not also have seen the occurrence as he accepted to

have run away after the accused persons stabbed the deceased. The

inmates of the nearby houses were not examined as prosecution witnesses.

There must have been temple goers passing along the road. As PW-5 was

earlier prosecuted by the police, his antecedents were not very clean

and he appeared to be a tutored witness. There is no motive attributed

as to why the accused persons would attack the deceased. On the other

hand, the needle of suspicion could be raised against Naran Dhibar (PW-

3) who was the companion of the deceased and was his partner in the fish

business. Though the death was due to the injury sustained, yet it has

not been proved that the vital injury was caused by the accused persons.

Accordingly, the conviction made and sentences imposed were set aside.

In support of the appeal, Mr. Ranjit Kumar, learned senior counsel

submitted that the High Court's judgment is based more on surmises and

conjectures, than analysing the evidence on record. Even the evidence

has not been properly appreciated. Since the judgment of the High Court

is bereft of acceptable reasoning, the same is liable to be set aside

and the judgment of the trial Court should be restored.

In response, Mr. U.R. Lalit, learned senior counsel for the

accused submitted that the view taken by the High Court is a possible

view. It is not that the High Court has not analysed the evidence. It

has arrived at the right conclusions. The evidence of PWs 3 and 5

clearly show that they could not have seen the occurrence as claimed.

PW-3 has accepted that he had run away after the accused had stopped the

deceased. The first information report does not detail as to the

respective roles played by the accused persons. In any event, the

evidence is not sufficient to bring in application of Section 149 IPC.

There is no sound reasoning indicated to hold that there was any

unlawful assembly which is a sine qua non for the application of Section

149. The identification as claimed by PWs 3 and 5 is improbabilised by

the evidence of the Investigating Officer. He clearly stated that he had

not mentioned anything about the street light or the torch light claimed

to have been carried by PW-3 in the case diary. PW-5's presence at the

spot of occurrence has also not been explained and he at the most is a

chance witness and, therefore, his evidence could not have been acted

upon.

In essence, it was submitted that in an appeal against acquittal

the jurisdiction under Article 136 of the Constitution of India, 1950

(in short the 'Constitution') should not be exercised. Learned counsel

for the State of West Bengal supported the stand taken by the informant-

appellant.

A bare perusal of the High Court's judgment shows that the same is

based more on surmises and conjectures than making an attempt to analyse

the evidence. Some of the conclusions as rightly submitted by learned

counsel for the appellant are contrary to record. The evidence of PW-5

has been disbelieved on the ground that he could not have possibly seen

the occurrence being far away from the road where he claimed to be

sitting. The evidence on record shows that the distance is even less

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than 10 yards. Another factor which seems to have weighed with the High

Court is the statement of PW-3 that he had taken to his heels after the

accused persons stopped the deceased. The High Court has clearly over-

looked the categorical evidence of PW-3, who during cross examination

has stated that after seeing the assault he had run away. The statement

to the effect that he ran away after the accused persons stopped the

deceased is to be read along with other parts of the evidence and not in

an isolated way. The statement made in the cross examination to the

effect that he ran away after seeing the assaults is significant. The

High Court has also raised suspicion over PW-3's conduct in not lodging

the information first and going to the house of the deceased and not his

own house which was nearer. This according to us is really of no

consequence. The deceased was closely related to him and, therefore, as

explained in evidence he thought it proper to inform the relatives of

deceased first so that medical treatment could be immediately provided.

There was also no delay in lodging the FIR. The occurrence took place at

about 9.45 p.m. and the information with the police was lodged at about

10.15 p.m. There was no evidence to show that the temple goers were

passing on the roads. The hypothetical conclusion of the High Court that

people must be passing is without any foundation. The evidence of PW-5

has been discarded because of his antecedents. When the evidence has

been analysed carefully by the trial Court to find that he is a truthful

witness, his antecedents should not have weighed with the High Court to

completely discard his evidence. There is also no material to support

the conclusion of the High Court that he was a tutored witness. The most

vulnerable conclusion of the High Court relates to its view regarding

PW-3 because he claimed to have accompanied the deceased. Such a

conclusion to say the least borders on absurdity and is without any

foundation for such a conclusion. The High Court should not have

recorded such a finding. The High Court also doubted PW-3's evidence on

the ground that he did not accompany the deceased to the hospital. The

witnesses PW-2 and PW-3 have categorically stated that PW-2 had seen the

deceased in an injured condition and therefore PW-3 accompanied her to

the deceased's house when the deceased was shifted to the hospital.

In view of the aforesaid position, clearly the High Court was

wrong in holding the accused persons to be not guilty.

However, one plea which was urged with some amount of vehemence

was the applicability of Section 149 IPC.

The emphasis in Section 149 IPC is on the common object and not

on common intention. Mere presence in an unlawful assembly cannot

render a person liable unless there was a common object and he was

actuated by that common object and that object is one of those set out

in Section 141. Where common object of an unlawful assembly is not

proved, the accused persons cannot be convicted with the help of Section

149. The crucial question to determine is whether the assembly

consisted of five or more persons and whether the said persons

entertained one or more of the common objects, as specified in Section

141. It cannot be laid down as a general proposition of law that unless

an overt act is proved against a person, who is alleged to be a member

of unlawful assembly, it cannot be said that he is a member of an

assembly. The only thing required is that he should have understood

that the assembly was unlawful and was likely to commit any of the acts

which fall within the purview of Section 141. The word 'object' means

the purpose or design and, in order to make it 'common', it must be

shared by all. In other words, the object should be common to the

persons, who compose the assembly, that is to say, they should all be

aware of it and concur in it. A common object may be formed by express

agreement after mutual consultation, but that is by no means necessary.

It may be formed at any stage by all or a few members of the assembly

and the other members may just join and adopt it. Once formed, it need

not continue to be the same. It may be modified or altered or abandoned

at any stage. The expression 'in prosecution of common object' as

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appearing in Section 149 have to be strictly construed as equivalent to

'in order to attain the common object'. It must be immediately connected

with the common object by virtue of the nature of the object. There

must be community of object and the object may exist only up to a

particular stage, and not thereafter. Members of an unlawful assembly

may have community of object up to certain point beyond which they may

differ in their objects and the knowledge, possessed by each member of

what is likely to be committed in prosecution of their common object may

vary not only according to the information at his command, but also

according to the extent to which he shares the community of object, and

as a consequence of this the effect of Section 149, IPC may be different

on different members of the same assembly.

'Common object' is different from a 'common intention' as it does

not require a prior concert and a common meeting of minds before the

attack. It is enough if each has the same object in view and their

number is five or more and that they act as an assembly to achieve that

object. The 'common object' of an assembly is to be ascertained from

the acts and language of the members composing it, and from a

consideration of all the surrounding circumstances. It may be gathered

from the course of conduct adopted by the members of the assembly. 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. It

is not necessary under law that in all cases of unlawful assembly, with

an unlawful common object, the same must be translated into action or be

successful. Under the Explanation to Section 141, an assembly which was

not unlawful when it was assembled, may subsequently become unlawful.

It is not necessary that the intention or the purpose, which is

necessary to render an assembly an unlawful one comes into existence at

the outset. The time of forming an unlawful intent is not material. An

assembly which, at its commencement or even for some time thereafter, is

lawful, may subsequently become unlawful. In other words it can develop

during the course of incident at the spot co instanti.

Section 149, IPC consists of two parts. The first part of the

section means that the offence to be committed in prosecution of the

common object must be one which is committed with a view to accomplish

the common object. In order that the offence may fall within the first

part, the offence must be connected immediately with the common object

of the unlawful assembly of which the accused was member. Even if the

offence committed is not in direct prosecution of the common object of

the assembly, it may yet fall under Section 141, if it can be held that

the offence was such as the members knew was likely to be committed and

this is what is required in the second part of the section. The purpose

for which the members of the assembly set out or desired to achieve is

the object. If the object desired by all the members is the same, the

knowledge that is the object which is being pursued is shared by all the

members and they are in general agreement as to how it is to be achieved

and that is now the common object of the assembly. An object is

entertained in the human mind, and it being merely a mental attitude, no

direct evidence can be available and, like intention, has generally to

be gathered from the act 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 behaviour at or before or after the scene of incident. The word

'knew' used in the second branch of the section implies something more

than a possibility and it cannot be made to bear the sense of 'might

have been known'. Positive knowledge is necessary. When an offence is

committed in prosecution of the common object, it would generally be an

offence which the members of the unlawful assembly knew was likely to be

committed in prosecution of the common object. That, however, does not

make the converse proposition true; there may be cases which would come

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within the second part but not within the first part. The distinction

between the two parts of Section 149 cannot be ignored or obliterated.

In every case it would be an issue to be determined, whether the offence

committed falls within the first part or it was an offence such as the

members of the assembly knew to be likely to be committed in prosecution

of the common object and falls within the second part. However, there

may be cases which would be within first offences committed in

prosecution of the common object, but would be generally, if not always,

with the second, namely, offences which the parties knew to be likely

committed in the prosecution of the common object. (See Chikkarange

Gowda and others v. State of Mysore, AIR 1956 SC 731.)

The other plea that definite roles have not been ascribed to the

accused and, therefore, Section 149 is not applicable, is untenable. A

4-Judge Bench of this Court in Masalti and Ors. v. State of U.P. (AIR

1965 SC 202) observed as follows:

"Then it is urged that the evidence given by

the witnesses conforms to the same uniform pattern

and since no specific part is assigned to all the

assailants, that evidence should not have been

accepted. This criticism again is not well founded.

Where a crowd of assailants who are members of an

unlawful assembly proceeds to commit an offence of

murder in pursuance of the common object of the

unlawful assembly, it is often not possible for

witnesses to describe accurately the part played by

each one of the assailants. Besides, if a large

crowd of persons armed with weapons assaults the

intended victims, it may not be necessary that all of

them have to take part in the actual assault. In the

present case, for instance, several weapons were

carried by different members of the unlawful

assembly, but it appears that the guns were used and

that was enough to kill 5 persons. In such a case, it

would be unreasonable to contend that because the

other weapons carried by the members of the unlawful

assembly were not used, the story in regard to the

said weapons itself should be rejected. Appreciation

of evidence in such a complex case is no doubt a

difficult task; but criminal courts have to do their

best in dealing with such cases and it is their duty

to sift the evidence carefully and decide which part

of it is true and which is not."

To similar effect is the observation in Lalji v. State of U.P.

(1989 (1) SCC 437). It was observed that:

"Common object of the unlawful assembly can be

gathered from the nature of the assembly, arms used

by them and the behaviour of the assembly at or

before the scene of occurrence. It is an inference to

be deduced from the facts and circumstances of each

case."

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was

observed that it is not necessary for the prosecution to prove which of

the members of the unlawful assembly did which or what act. Reference

was made to Lalji's case (supra) where it was observed that "while

overt act and active participation may indicate common intention of the

person perpetrating the crime, the mere presence in the unlawful

assembly may fasten vicariously criminal liability under Section 149".

Coming to the plea of the accused that PW-5 was 'chance witness'

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who has not explained how he happened to be at the alleged place of

occurrence it has to be noted that the said witness was an independent

witness. There was not even a suggestion to the witness that he had any

animosity towards any of the accused. In a murder trial by describing

the independent witnesses as 'chance witnesses' it cannot be implied

thereby that their evidence is suspicious and their presence at the

scene doubtful. Murders are not committed with previous notice to

witnesses; soliciting their presence. If murder is committed in a

dwelling house, the inmates of the house are natural witnesses. If

murder is committed in a street, only passersby will be witnesses. Their

evidence cannot be brushed aside or viewed with suspicion on the ground

that they are mere 'chance witnesses'. The expression 'chance witness'

is borrowed from countries where every man's home is considered his

castle and everyone must have an explanation for his presence elsewhere

or in another man's castle. It is quite unsuitable an expression in a

country where people are less formal and more casual.

There is no embargo on the appellate Court reviewing the evidence

upon which an order of acquittal is based. Generally, the order of

acquittal shall not be interfered with because the presumption of

innocence of the accused is further strengthened by acquittal. The

golden thread which runs through the web of administration of justice in

criminal cases is that if two views are possible on the evidence adduced

in the case, one pointing to the guilt of the accused and the other to

his innocence, the view which is favourable to the accused should be

adopted. The paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of justice which may

arise from acquittal of the guilty is no less than from the conviction

of an innocent. In a case where admissible evidence is ignored, a duty

is cast upon the appellate Court to re-appreciate the evidence where the

accused has been acquitted, for the purpose of ascertaining as to

whether any of the accused really committed any offence or not. [See

Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme

567). The principle to be followed by appellate Court considering the

appeal against the judgment of acquittal is to interfere only when there

are compelling and substantial reasons for doing so. If the impugned

judgment is clearly unreasonable and relevant and convincing materials

have been unjustifiably eliminated in the process, it is a compelling

reason for interference. These aspects were highlighted by this Court in

Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC

2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167),

Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore

Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab

v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla

Singh and Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and

Anr. (JT 2003 (9) SC 17).

All the accused persons were armed. Their conduct before, during

and after the occurrence clearly brings about the object. The assembly

was patently unlawful. It is inconceivable that persons armed would

surround the persons without any criminal object in mind. Mere fact that

only one of them used the weapon does not really rule out application of

Section 149 IPC. Learned counsel for the accused persons submitted that

contrary to the evidence of PWs 3 and 5 there was only one injury found

by the doctor. PWs 3 and 5 have stated about assaults and if five

persons were really assaulting the result would not have been only one

injury. The definition of "assault" as given in Section 351 IPC makes

the plea unacceptable. The trial Court had rightly and in proper legal

perspective convicted the accused-respondents under Section 148 and 304

Part I read with Section 149 IPC. The High Court's judgment suffers from

serious infirmities making it indefensible and is therefore, set aside.

The judgment of the trial Court recording conviction and imposing

sentences is restored. The appeal is allowed.

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