Maranadu & ANR. Vs.
State by Inspector of Police, Tamil Nadu  INSC 1557 (15 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELALTE JURISDICTION CRIMINAL APPEAL NO. 494 OF 2001
Maranadu and Anr. ....Appellants Versus State by Inspector of Police, Tamil
Dr. ARIJIT PASAYAT,
this appeal challenge is to the judgment of a Division Bench of the Madras High
Court dismissing the appeal filed by the appellants who were appellant nos. 5
and 6 before it and before the trial Court they were accused Nos. 5 and 6.
Before the trial Court there were six accused persons. After finding them
guilty of various offences the trial Court recorded the conviction and imposed
sentences in the following manner:
"A-1 is found
guilty of charges under Section 147 IPC and sentenced to 2 years rigorous
imprisonment. A-2 to A-6 are found guilty of charge under Section 148 IPC and
each one of them is sentenced to 2 years RI. A1, A-2 and A-4 are found guilty
of the charge under Section 302 IPC read with Section 34 and each one of them
is sentenced to life imprisonment. A3, A5 and A6 are found guilty of the charge
under Section 302 IPC read with Section 149 and each one of them is sentenced
to life imprisonment. A3 is found guilty of the charge under Section 307 IPC
and sentenced to 5 years RI.
A5 is found guilty of
the charge under Section 307 IPC and sentenced to 5 years RI. A6 is found
guilty of the charge under Section 307 IPC and sentenced to 5 years RI. A3, A5
and A6 are found guilty of the charge under Section 9(b)(1(b) of the Indian
Explosives Act and each one of them is sentenced to 2 years RI. The above
sentences shall run concurrently."
facts as highlighted by the prosecution are as follows:
2 The Inspector of
Police, Usilampatti filed the charge sheet against the accused stating that due
to previous enmity A1 to A6 with common motive to commit murder of Sundaram
(hereinafter referred to as `deceased') and the witnesses Annakodi (PW-1),
Ayyar (PW-2) and Mokkai, assembled unlawfully at about 10.45 a.m. on 11.10.89
in front of the tea shop of Raju @ Raja opposite to Malayandi Theatre
Usilampatti on Madurai-Usilampatti main road. A2 to A6 were in possession of
the dangerous weapon Aruval and A3, A5 and A6 were in possession of country
made bombs and committed commotion along with A1. Charges were framed against
A1 under Section 147 IPC and against A2 to A6 under Section 148 IPC and that in
continuance of the commission of the said offence, A1 caught hold of the right
hand of Sundaram and said "cut and kill him" and A4 inflicted cut on
the right hand of Sundaram with the aruval and further A2 to A4 inflicted cuts
on neck of Sundaram indiscriminately and hence Sundaram died and charges were
framed against A1, A2 and A4 under Section 302 IPC and against A3, A5 and A6
under Section 302 IPC read with Section 149 IPC. When the witnesses Annakodi
(PW-1), Ayyar (PW-2) and Mokkai who saw the falling down of Sundaram, A3, A5
and A6 ran away and with the motive of committing the murder, threw the country
bombs on them and hence the witnesses Annakodi and Ayyar sustained injuries and
charges were framed against A3, A5 and A6 under Section 307 IPC and against A1,
A2 and A4 under Section 307 IPC read with Section 149 and during investigation
it came to light that A3, A5 and A6 were in possession of country bombs without
any valid license and hence charges were framed against A3, A5 and A6 under
Section 9(b)1(b) of the Indian Explosives Act,1884 (in short the `Explosives
On perusal of the
records and documents in the case and upon hearing the arguments of the Public
Prosecutor and defence counsel, trial court came to hold that there was
sufficient evidence to hold that the accused had committed the offences and the
charges were framed.
accused denied the accusations and were put on trial.
trial Court recorded the conviction and imposed sentences primarily placing
reliance on the evidence of PW-1, son of the deceased and PW-2 the
brother-in-law of PW-1. The conviction and the consequential sentences were
challenged before the High Court which as noted above dismissed the appeal.
support of the appeal, learned counsel for the appellants submitted that the
evidence of PWs 1 and 2 should not have been relied on because they are
interested witnesses being related to the deceased. In any event, Section 149
has no application. It is further submitted that even if the evidence of PWs 1
and 2 is accepted they cannot be related to the fatal injuries and the injuries
were not caused to the deceased. In fact it is stated that A-5 i.e. appellant
No.1 in the present case had only thrown a bomb at PW-2 who sustained injuries
on his cheek and left chest and A-6 i.e. appellant No.2 in the present appeal
threw a bomb which did not explode.
counsel for the respondent-State on the other hand supported the judgments of
the trial Court and the High Court.
because the eye-witnesses are family members their evidence cannot per se be
discarded. When there is allegation of interestedness, the same has to be
Mere statement that
being relatives of the deceased they are likely to falsely implicate the
accused cannot be a ground to discard the evidence which is otherwise cogent
We shall also deal with
the contention regarding interestedness of the witnesses for furthering
prosecution version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person. Foundation has to be
laid if plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether it is cogent
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close relation would be the last to
screen the real culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity, that there is a tendency
to drag in an innocent person against whom a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping generalization. Each case must be
judged on its own facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of prudence.
There is no such
general rule. Each case must be limited to and be governed by its own
above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR
1957 SC 614) was also relied upon.
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
Vivian Bose, J. it was observed:
"We are unable
to agree with the learned Judges of the High Court that the testimony of the
two eyewitnesses requires corroboration.
If the foundation for
such an observation is based on the fact that the witnesses are women and that
the fate of seven men hangs on their testimony, we know of no such rule.
If it is grounded on
the reason that they are closely related to the deceased we are unable to
concur. This is a fallacy common to many criminal cases and one which another
Bench of this Court endeavoured to dispel in - `Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it 8 unfortunately
still persists, if not in the judgments of the Courts, at any rate in the
arguments of counsel."
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
"But it would,
we think, be unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or interested
witnesses.......The mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of justice. No hard and
fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is partisan cannot be
accepted as correct."
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra [2005 (10) SCC 404] and in Salim Saheb v. State of M.P.
(2007(1) SCC 699).
over insistence on witnesses having no relation with the victims often results
in criminal justice going awry. When any incident happens in a dwelling house
the most natural witnesses would be the inmates of that house. It is
unpragmatic to ignore such natural witnesses and insist on outsiders who would
not have even seen any thing. If the Court has discerned from the evidence or
even from the investigation records that some other independent person has
witnessed any event connecting the incident in question then there is
justification for making adverse comments against non-examination of such
person as prosecution witness.
Otherwise, merely on
surmises the Court should not castigate a prosecution for not examining other
persons of the locality as prosecution witnesses. Prosecution can be expected
to examine only those who have witnessed the events and not those who have not
seen it though the neighborhood may be replete with other residents also. [See:
State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)].
shall next deal with the applicability of Section149 IPC.
plea which was emphasized by the appellants relates to the question whether
Section 149, IPC has any application for fastening the constructive liability
which is the sine qua non for its operation. The emphasis is on the common
object and not on common intention. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common object 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 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
object' is different from `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. For determination
of the common object of the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the relevant considerations.
What the common object of the 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.
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 part 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 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 the first part, but offences
committed in prosecution of the common object would be generally, if not
always, be within the second part, namely, offences which the parties knew
likely to be committed in the prosecution of the common object. (See
Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC 731.)
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 v. State
of U.P. (1989 (1) SCC 437) 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".
position has been elaborately stated by this Court in Gangadhar Behera and Ors.
v. State of Orissa (2002 (8) SCC 381).
the factual scenario is considered in the background of the principles set out
above the inevitable is that Section 149 is clearly applicable as has been
rightly held by the trial Court and the High Court. The appeal is without
merit, deserves dismissal which we direct.
(Dr. ARIJIT PASAYAT)