# SANTOSH DEVIDAS BEHADE AND ORS v. STATE OF MAHARASHTRA

- **Citation:** [2009] 4 S.C.R. 83
- **Court:** Supreme Court of India
- **Decided:** 2009-03-06
- **Case number:** Criminal Appeal No. 445 of 2009
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santosh-devidas-behade-and-ors-v-state-of-maharashtra-25810
- **Pages:** 25

## Headnote

[2009] 4 S.C.R. 83
SANTOSH DEVIDAS BEHADE AND ORS.
A
v
STATE OF MAHARASHTRA
Criminal Appeal No. 445 of 2009
MARCH 6, 2009 ·
....
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
JJ.]
Penal Code, 1860:
B
s.302 r!w 149- Conviction under- Upheld by High Court c
- Justification of - Held: On facts, justified.
ss.149 and 141 - Unlawful assembly- Common object
- Determination of - Relevant considerations - Discussed.
Evidence - Witness - Related witnesses - Appreciation 0
of - Held: Merely because the eye-witnesses were family
members their evidence could not be per se discarded -
When there is allegation of interestedness, the same has to
be established - 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 E
cogent and credible - Evidence Act, 1872 - s.3
Evidence Act, 1872 - s.9 - Evidence of identification -
Identification parade - Object of - Held: Is to test the memory
of the witnesses based upon first impression and also to enable F
the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime - It is desirable that a test
identification parade be conducted soon after arrest of the
accused - Code of Criminal Procedure, 1973 - s.162.
Challenge in the present appeal is to the judgment G
of the High Court upholding the conviction of the
appellants under s.302 rlw s.149 IPC.
The conviction of the appellants was challenged
83
H
84
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A before this Court on grounds that the evidence of PWs 2
and 6 should not have been acted upon by the Courts
below as they were wife and son of the deceased; that in
the Test Identification Parade only two accused appellants
were identified and that s.149 IPC was not applicable in
B the facts and circumstances of the case.
Dismissing the appeal, the Court
HELD:1.1. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common
c object and he was actuated by that common object and
that object is one of those set out in Section 141 IPC.
Where common object of an unlawful assembly is not
proved, the accused persons cannot be convicted with
the help of Section 149 IPC. [Para 5] [94-G-H]
D
1.2. The word 'object' means the purpose or design
and, in order to make it 'comm.,n', 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 1t. A common object
E 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
F may be modified or altered or abandoned at any stage.
The expression 'in prosecution of common object' as
appearing in Section 149 IPC have to be strictly construed
as equivalent to 'in order to attain the common object'. It
must be immediately connected with the common object
G 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
H and the knowledge, possessed by each member of what
SANTOSH DEVIDAS BEHADE AND ORS. V
85
STATE OF MAHARASHTRA
is likely to be committed in prosecution of their common A
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. [Para 5] [95-C-H]
B
1.3. '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 sa

## Text

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[2009] 4 S.C.R. 83
SANTOSH DEVIDAS BEHADE AND ORS.
A
v
STATE OF MAHARASHTRA
Criminal Appeal No. 445 of 2009
MARCH 6, 2009 ·
....
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
JJ.]
Penal Code, 1860:
B
s.302 r!w 149- Conviction under- Upheld by High Court c
- Justification of - Held: On facts, justified.
ss.149 and 141 - Unlawful assembly- Common object
- Determination of - Relevant considerations - Discussed.
Evidence - Witness - Related witnesses - Appreciation 0
of - Held: Merely because the eye-witnesses were family
members their evidence could not be per se discarded -
When there is allegation of interestedness, the same has to
be established - 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 E
cogent and credible - Evidence Act, 1872 - s.3
Evidence Act, 1872 - s.9 - Evidence of identification -
Identification parade - Object of - Held: Is to test the memory
of the witnesses based upon first impression and also to enable F
the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime - It is desirable that a test
identification parade be conducted soon after arrest of the
accused - Code of Criminal Procedure, 1973 - s.162.
Challenge in the present appeal is to the judgment G
of the High Court upholding the conviction of the
appellants under s.302 rlw s.149 IPC.
The conviction of the appellants was challenged
83
H
84
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A before this Court on grounds that the evidence of PWs 2
and 6 should not have been acted upon by the Courts
below as they were wife and son of the deceased; that in
the Test Identification Parade only two accused appellants
were identified and that s.149 IPC was not applicable in
B the facts and circumstances of the case.
Dismissing the appeal, the Court
HELD:1.1. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common
c object and he was actuated by that common object and
that object is one of those set out in Section 141 IPC.
Where common object of an unlawful assembly is not
proved, the accused persons cannot be convicted with
the help of Section 149 IPC. [Para 5] [94-G-H]
D
1.2. The word 'object' means the purpose or design
and, in order to make it 'comm.,n', 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 1t. A common object
E 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
F may be modified or altered or abandoned at any stage.
The expression 'in prosecution of common object' as
appearing in Section 149 IPC have to be strictly construed
as equivalent to 'in order to attain the common object'. It
must be immediately connected with the common object
G 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
H and the knowledge, possessed by each member of what
SANTOSH DEVIDAS BEHADE AND ORS. V
85
STATE OF MAHARASHTRA
is likely to be committed in prosecution of their common A
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. [Para 5] [95-C-H]
B
1.3. '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 C
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 D
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 E
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 F
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 G
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,
H
86
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A may subsequently become unlawful. In other words it can
develop during the course of incident at the spot co
instanti. [Para 6] [95-G-H; 96-A-E]
1.4. Section 149, IPC consists of two parts. The first
part of the section means that the offence to be committed
8 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
C 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
D 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
E 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
F 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
called out, it may reasonably be collected from the nature
of the assembly, arms it carries and behaviour at or before
G 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
H of the common object, it would generally be an offence
--
SANTOSH DEVIDAS BEHADE AND ORS. V
87
STATE OF MAHARASHTRA
which the members of the unlawful assembly knew was A
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. [Para
7] [96-F-H; 97-A-E]
B
1.5. The distinction between the two parts of Section
149 IPC 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 c
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 part, but offences committed
in prosecution of the common object would be generally,
if not always, be within the second part, namely, offences D
twhich the parties knew to be likely committed in the
prosecution of the common object. [Para 7) [97-E-G)
Chikkarange Gowda and others v. State of Mysore AIR
(1956) SC 731; State of UP v. Dan Singh and Ors. 1997 (3)
E
SCC 747; Lalji v. State of UP 1989 (1) SCC 437; Gangadhar
Behera and Ors. v. State of Orissa (2002 (8) SCC 381 and
Shivjee Singh and Ors. v. State of Bihar SLP (Crl.) No.1494/
~
2004 disposed of on 30.7.2008 - relied on.
2.1. Merely because the eye-witnesses are family
F
members their evidence cannot per se be discarded.
When there is allegation of interestedness, the same has
to be established. Mere statement that being relatives of
the deceased they are likely to falsely implicate the
accused cannot be a ground to discard the evidence G
t
which is otherwise cogent and credible. [Para 1 O] [98-D-E]
2.2. 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 H
88
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A 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 and credible. [Para 10] [98-E-F]
Dalip Singh and Ors. v. The State of Punjab AIR 1953
B
SC 364: Guli Chand and Ors. v. State of Rajasthan 1974 (3)
SCC 698; Vadivelu Thevar v. State of Madras AIR 1957 SC
614; Masalti and Ors. v. State of UP AIR 1965 SC 202; State
of Punjab v. Jagir Singh AIR 1973 SC 2407; Lehna v. State of
Haryana 2002 (3) SCC 76; Gangadhar Behera and Ors. v.
State of Orissa 2002 (8) SCC 381; Babula! Bhagwan Khandare
~
c and Anr. v. State of Maharashtra 2005(10) SCC 404; Salim
Saheb v. State of M.P 2007(1) SCC 699; Sane/al v. State of
M.P (SLP (Cr/.) No.3220 of 2007 disposed of on 22. 7.2008)
and Mohabbat and Ors. v. State of M.P (SLP (Crl.) No. 3251
of 2008) - relied on.
D
3.1. Identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of
-I
helping the investigating agency with an assurance that
their progress with the investigation into the offence is
E
proceeding on the right lines. The identification can only
be used as corroborative of the statement in court. The
necessity for holding an identification parade can arise
only when the accused are not previously known to the
witnesses. The whole idea of a test identification parade
is that witnesses who claim to have seen the culprits at
F the time of occurrence are to identify them from the midst
of other persons without any aid or any other source. The
test is done to check upon their veracity. In other words,
the main object of holding an identification parade, during
the investigation stage, is to test the memory of the
G witnesses based upon first impression and also to enable
the prosecution to decide whether all or any of them could
..
be cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the CrPC and
H Indian Evidence Act, 1872. It is desirable that a test
SANTOSH DEVIDAS BEHADE AND ORS. V.
89
STATE OF MAHARASHTRA
identification parade should be conducted as soon as A
after the arrest of the accused. This becomes necessary
to eliminate the possibility of the accused being shown
to the witnesses prior to the test identification parade.
This is a very common plea of the accused and, therefore,
the prosecution has to be cautious to ensure that there is B
no scope for making such allegation. If, however,
circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution. [Para
17] [100-G-H; 101-A-D]
3.2. The facts, which establish the identity of the C
accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence
of a witness is the statement made in Court. The evidence
of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak D
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in Court as to the identity of the E
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the
Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other F
corroboration. [Para 18] [101-F-H; 102-A-B]
3.3. The identification parades belong to the stage of
investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right
upon the accused to claim, a test identification parade. G
They do not constitute substantive evidence and these
parades are essentially governed by Section 162 CrPC.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The
weight to be attached to such identification should be a H
90
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A matter for the Courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. [ Para 18] [102-B-D]
Matru v. State of UP 1971 (2) SCC 75; Santokh Singh
v. lzhar Hussain (1973 (2) SCC 406; Kanta Prashad v. Delhi
B Administration AIR 1958 SC 350; Vaikuntam Chandrappa and
others v. State of Andhra Pradesh AIR 1960 SC 1340; Budhsen
and another v. State of UP AIR 1970 SC 1321; Rameshwar
Singh v. State of Jammu and Kashmir AIR 1972 SC 102;
Jadunath Singh and another v. The State of Uttar Pradesh
)
c (1970) 3 SCC 518; Harbhajan Singh v. State of Jammu and
Kashmir (1975) 4 SCC 480; Ram Nath Mahto v. State of Bihar
(1996) 8 SCC 630; Suresh Chandra Bahri v. State of Bihar
(1995) Supp (1)SCC 80; State of Uttar Pradesh v. Boota Singh
and others (1979) 1 SCC 31; Ramanbhai Naranbhai Patel
and others v. State of Gujarat (2000 (1) SCC 358;
D Malkhansingh and Others v. State of M.P 2003 (5) SCC 7 46
and Munshi Singh Gautam (dead) and Ors. v. State of MP
2005 (9) sec 631 - relied on.
Case Law Reference
AIR (1956) SC 731
relied on
Para 7
E
1997 (3) sec 747
relied on
Para 8
1989 (1) sec 437
relied on
Para 8
2002 (8) sec 381
relied on
Para 9
•
AIR 1953 SC 364
relied on
Para 11
F
1974 (3) sec 698
relied on
Para 12
AIR 1957 SC 614
relied on
Para 12
AIR 1965 SC 202
relied on
Para 14
AIR 1973 SC 2407
relied on
Para 15
G
2002 (3) sec 76
relied on
Para 15
2002 (8) sec 381
relied on
Para 15
2005(1 O) sec 404
relied on
Para 16
H
2001(1) sec 699
relied on
Para 16
SANTOSH DEVIDAS BEHADE AND ORS. V.
91
STATE OF MAHARASHTRA
1971 (2) sec 75
relied on
Para 17
A
1973 (2) sec 406
relied on
Para 17
AIR 1958 SC 350
relied on
Para 18
AIR 1960 SC 1340
relied on
Para 18
AIR 1970 SC 1321
relied on
Para 18
B
AIR 1972 SC 102
relied on
Para 18
1970) 3 sec 518
relied on
Para 19
1975) 4 sec 480
relied on
Para 21
1996 8 sec 630
relied on
Para 23
c
1995 Supp (1) sec 80 relied on
Para 24
1979) 1 sec 31
relied on
Para 25
2000 (1) sec 358
relied on
Para 26
2003 (5) sec 746
relied on
Para 27
D
,..
2005 (9) sec 631
relied on
Para 27
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 445 of 2009
From the Judgement and Order dated 26.04.2005 of the
E
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur in Criminal Appeal No. 314 of2001 with Criminal Appeal
No. 346 of 2001 .
..
Vijay Kumar (SCI, SC), for the Appellant.
F
Ravindra Keshavrao Adsure, for the Respondents.
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J!
1. Leave granted.
G
-
t
2. Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court, Nagpur Bench, upholding the
conviction of the appellants for offences punishable under
Sections 147, 148, 302 read with Section 149 of the Indian Penal
Code, 1860 (in short the 'IPC'). By the impugned order two
H
92
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A Criminal Appeals i.e. Criminal Appeal Nos. 314/2001 and 346/
2001 were disposed of Accused persons are Namdev (A-1 ),
Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6).
The High Court by the impugned judgment dismissed the
appeals.
B
3. Background facts in a nutshell are as follows:
The Complainant-Chandrakalabai widow of Bharat Kharat
was a resident of Village Dharkanha. At the time of incident,
she was residing with her husband Bharat Mukinda Kharat
c (hereinafter referred to as the 'deceased') and two sons in the
house situated in the village Dharkanha. It is the case of the
prosecution that Shivcharan (PW6), son of the Complainant
Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai,
the keep of deceased Bharat and Shakuntalabai were residing
D in the said house. On the day of incident, Shakuntala was not
present as she had gone to Pusad. At that time, work of uprooting
the groundnut crop was in progress in the field of deceased
...
Bharat and several persons from village Londhari were working
in his field. There was a pit dug in front of the house of Bharat
for construction of one room.
E
th
On 7 June, 1998, at about 1.00 p.m., deceased Bharat
and one Tulshiram Vadar had gone to Pusad and returned home
at about 7 .00 p.m. After that, deceased Bharat was taking meal
in his house and Tulshiram went to sleep in front of the house.
•
F After some time, at about 8.00 p.m. accused Namdev Tarpe
came to the house of the complainant and told Bharat that
persons from village Yehala were coming to beat him and he
should run away from the spot, or release the dogs. When Bharat
came out of the house, five to six persons encircled Bharat in
G the courtyard of his house and started beating him. They were
armed with axes, sticks, crowbars and beat Bharat with the said
~
'
weapons. When Bharat was being assaulted, he shouted for
help loudly saying "Chandrakala, I am dying." The complainantChandrakala went to Tulsiram and awakened him. Tulshiram
H tried to rescue Bharat from the clutches of the accused; but the
SANTOSH DEVIDAS BEHADE AND ORS. V
93
. STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
accused did not allow him to help the deceased. The A
+
complainant Chandrakala thereafter went towards the persons
of village Londhari and stayed there along with her sons. The
assailants also came there and threatened them not to disclose
the incident and asked them to leave. The persons from village
Londhari thereafter left the place. The accused persons also
B
left the place.
The complainant Chandrakala along with her sons went
near her husband deceased Bharat and noticed injuries on his
"
person, who had already succumbed to those injuries on the
spot. The complainant asked her son Shivcharan (PW-6) the c
names of the assailants. Shivcharan told her that the assailants
were from village Yehala and gave their names as "Namdeo
Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade,
Sahebrao and one unknown person to whom he knew by face."
The complainant along with her sons thereafter went to D
-'t'
the house of Police Patil of village Dharkanha and narrated the
incident. The complainant stayed there for the night and on the
next day, she went to Police Station, Pusad (Rural) and lodged
a report. In the report, she mentioned the names of five accused
E
persons and one unknown person. She also stated in the report
that accused persons assaulted her husband because one year
before the incident, there were murders of one Atmaram and
•
Laxman of village Yehala and in the said crime, her husband
deceased Bharat was arrested and, therefore, the assailants
for taking revenge of the said murders, and had assaulted Bharat
F
in the incident in question. On the basis of the report lodged by
. the complainant investigation was undertaken. After completion
of investigation charge sheet was filed and as the accused
persons i.e. seven in number in two Criminal Appeals before
High Court pleaded innocence, trial was held.
G
-1
It is to be noted that A-1 was absconding and therefore
separate charge sheet was filed against him. The trial Court
placed reliance on the evidence of Chandrakala (PW-2) and
Shivcharan (PW-6) and found the accused persons guilty.
H
94
SUPREME COURT REPORTS
(2009) 4 S.C.R.
A
In appeal, the primary stand of the accused persons was
that PWs 2 and 6 being related to the deceased their evidence
~
should not be acted upon particularly when Tulshiram and the
younger son of the deceased were not examined. Additionally,
it was submitted that in the Test Identification Parade (in short
8 the 'Tl Parade') held on 3.8.1998 only two accused persons
Sudam and Mangal were identified. Further, the evidence of
Shivcharan (PW-6) only relates to accused Shamrao and,
therefore, Section 149 has no application. It was also submitted
that PW-2 cannot be believed as she did not know the names
l
c of the accused persons and the names were told to her by PW6. The trial Court did not analyse their evidence and held that
merely because PWs 2 and 6 were the wife and son of the
deceased that did not render their evidence suspect.
Additionally, the Tl parade was held only in respect of two
D accused appellants Sudam and Mangal and not in respect of
other accused persons as they were allegedly known to the
prosecution witnesses.
...
Stand of State was that as others were known, there was
no need for Tl Parade. The fact situation clearly shows that
E Section 149 IPC has application.
4. In support of the appeal the stands taken before the
High Court are re-iterated by learned counsel for the appellants
and for the State.
F
5. A plea which was emphasized by the appellant 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
G 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
H to determine is whether the assembly consisted of five or more
SANTOSH DEVIDAS BEHADE AND ORS. V.
95
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
persons and whether the said persons entertained one or more A
•-
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 s
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 c
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 D
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
E
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
F
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.
G
6. 'Common object' is different from a 'common infention'
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
H
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SUPREME COURT REPORTS
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A
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
B 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
c 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,
0
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
E
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.
F
7. 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
G 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
H likely to be committed and this is what is required in the second
SANTOSH DEVIDAS BEHADE AND ORS. V.
97
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
part of the section. The purpose for which the members of the A
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 commo.n object of the assembly. An object B
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 c
common object can be called out, it may reasonably be collected
from the nature of the assembly, arms it carries arid 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 0
'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· E
come within the second part but not withi_n fhe 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
F
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 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
G
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.)
8. In State of UP v Dan Singh and Ors. (1997 (3} SCC H
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SUPREME COURT REPORTS
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A
7 4 7) it was observed that it is not necessary for the prosecution
to prove which of the members of the unlawful assembly did
~
B
which or what act. Reference was made to Lalji v. State of UP
( 1989 ( 1) sec 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".
9. This position has been elaborately stated by this Court
c in Gangadhar Behera and Ors. v. State of Orissa (2002 (8)
SCC 381 and Shivjee Singh and Ors. v. State of Bihar (SLP
(Crl.) No.1494/2004 disposed of on 30.7 .2008)
10. Merely because the eye-witnesses are family members
their evidence cannot per se be discarded. When there is
D allegation of interestedness, the same has to be established.
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 and credible.
We shall also deal with the contention regarding interestedness
E 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
F
has to adopt a careful approach and analyse evidence to find
out whether it is cogent and credible .
G
H
. 11. In Dalip Singh and Ors. v. The State of Punjab (Al R
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
,_
-
SANTOSH DEVIDAS BEHADE AND ORS. V.
99
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
innocent person. It is true, when feelings run high and there
A
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.
B
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 facts."
c
12. The 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.
D
13. We 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 Oa/ip Singh's case
E
(supra) in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that
rel"!tives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the
F
High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an
.
observat10.i 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 G
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 ih -
'Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however,
H
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[2009] 4 S.C.R
A
that it unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel."
14. Again in Masalti and Ors. v. State of UP (AIR 1965
SC 202) this Court observed: (p. 209-210 para 14):
B
"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
•
c
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."
D
15. To 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).
E
16. The above position was also highlighted in Babula/
Bhagwan Khandare and Anr. v. State of Maharashtra [2005(10)
SCC 404), Salim Saheb v. State of M.P (2007(1) SCC 699),
Sane/al v. State of M.P (SLP (Crl.) No.3220 of 2007 disposed
of on 22.7.2008) and Mohabbat and Ors. v. State of M.P (SLP
F
(Crl.) No. 3251 of 2008)
17. As was observed by this Court in Matru v. State of
UP (1971 (2) SCC 75) identification tests do not constitute
substantive evidence. They are primarily meant for the purpose
of helping the investigating agency with an assurance that their
G progress with the investigation into the offence is proceeding
on the right lines. The identification can only be used as
~
corroborative of the statement in court. (See Santokh Singh v.
lzhar Hussain (1973 (2) sec 406). The necessity for holding
an identification parade can arise only when the accused are
H not previously known to the witnesses. The whole idea of a test
SANTOSH DEVIDAS BEHADE AND ORS. V.
101
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT J.]
identification parade is that witnesses who claim to have seen
A
the culprits at the time of occurrence are to identify them from
the midst of other persons without any aid or any other source.
The test is done to check upon their veracity. In other words, the
main object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses based
B
upon first impression and also to enable the prosecution to
-Jecide whether all or any of them could be cited as eyewitnesses
of the crime. The identification proceedings are in the nature of
tests and significantly, therefore, there is no provision for it in
the Code of Criminal Procedure, 1973 (in short the 'Code') and c
Indian Evidence Act, 1872 (in short 'Evidence Act'). It is desirable
that a test identification parade should be conducted as soon
as after the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown to the
witnesses prior to the test identification parade. This is a very
0
common plea of the accused and, therefore, the prosecution
has to be cautious to ensure that there is no scope for making
such allegation. If, however, circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the
prosecution.
18. It is trite to say that the substantive evidence is the
evidence of identification in Court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in law
E
is well settled by a catena of decisions of this Court. The facts,
which establish the identity of the accused persons, are relevant
F
under Section 9 of the Evidence Act. As a general rule, the
substantive evidence of a witness is the statement made in Court.
The evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of a
weak character. The purpose of a prior test identification,
G
the efore. is to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence
to generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are
strangers to them, in the form of earlier identification H
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[2009] 4 S.C.R.
A
proceedings. This ru!e of prudence. however. is subject to
exceptions, when, for example, the Court is impressed by a
particular witness on whose testimony It can safely rely, without
such or other corroboration. The identification parades belong
to the stage of investigation, and there is no provision in the
B Code which obliges the investigating agency to hold or confers
a right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these parades
are essentially governed by Section 162 of the Code. Failure to
hold a test identification parade would not make inadmissible
c the evidence of identification in Court. The weight to be attached
to such identification should be a matter for the Courts of fact. In
appropriate cases it may accept the evidence of identification
even without insisting on corroboration. (See Kanta Prashad v.
Delhi Administration (AIR 1958 SC 350), Vaikuntam
0
Chandrappa and others v. State of Andhra Pradesh (AIR 1960
SC 1340). Budhsen and another v. State of UP (AIR 1970 SC
1321) and Rameshwa1 Singh v. State of Jamm,1 :ind Kashmir
(AIR 1972 SC 102).
19. In Jadunath Singh and another v. The State of Uttar
E Pradesh (1970) 3 SCC 518), the submission that absence of
test identification parade in all cases is fatal, was repelled by
this Court after exhaustive considerations of the authorities on
the subject. That was a case where the witnesses had seen the
accused over a period of time. The High Court had found that
F the witnesses were independent witnesses having no affinity
with deceased and entertained no animosity towards the
appellant. They had claimed to have known the appellants for
the last 6-7 years as they had been frequently visiting the town
of Bewar.