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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-NentuPage 2
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
2Page 3
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 deceasedHemanta 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 appellantsaccused. 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,
6Page 7
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
Pradesh1
, Akbar Sheikh & Ors. v. State of West
Bengal2
, Pandurang Chandrakant Mhatre v. State of
Maharashtra3
and Debashis Daw & Ors. v. State of
1
(1991) Supp. (2) SCC 437
2
(2009) 7 SCC 415
3
(2009) 10 SCC 773
9Page 10
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
10Page 11
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 deceasedHemanta, 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 @
Krishnakumar7
, Sunil Kumar Sambhudayal Gupta (Dr.)
& Ors. v. State of Maharashtra8
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
12Page 13
Ors. v. Stateof Bihar11 and Waman & Ors. v. State of
Maharashtra12. 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
13Page 14
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
14Page 15
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 Haryana17
,
Rammi v. State of Madhya Pradesh18 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 eyewitnesses 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
15Page 16
counsel relied on Sheo Shankar Singh and Bipin Kumar
Mondal v. State of West Bengal21. 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 Bihar22, C. Muniappan v.
State of Tamil Nadu23, Bhagwan Das v. State (NCT of
Delhi)24, Mrinal Das v. State of Tripura25 and Bhajju
v. State of Madhya Pradesh26. 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
16Page 17
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 deceasedHemanta 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, deceasedManik 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-
19Page 20
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
20Page 21
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
21Page 22
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
22Page 23
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.
23Page 24
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
24Page 25
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.
25Page 26
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 crossexamination. 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 deceasedHemanta 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
26Page 27
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 deceasedHemanta, 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
27Page 28
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
28Page 29
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 delinquentGopal 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 deceasedManik 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
29Page 30
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 deceasedHemanta with a tangi on his head. She stated that 10/15
persons continued to assault deceased-Hemanta, deceasedManik 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
30Page 31
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,
31Page 32
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
32Page 33
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, deceasedHemanta 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.
33Page 34
Their evidence particularly about the assault on deceasedHemanta, 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
34Page 35
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
35Page 36
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
36Page 37
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,
37Page 38
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 deceasedHemanta. 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
38Page 39
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 eyewitnesses. In order to deal with this submission, we have
reproduced the material portions of the evidence of the eyewitnesses. 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
39Page 40
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
40Page 41
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.
41Page 42
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
42Page 43
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
43Page 44
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
44Page 45
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
45Page 46
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
46Page 47
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,
47Page 48
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.
48Page 49
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
49Page 50
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.
50Page 51
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
51Page 52
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 eyewitnesses. 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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