LexAKBAR SHEIKH & ORS. versus STATE OF WEST BENGAL
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[2009] 7 S.C.R. 518 A AKBAR SHEIKH & ORS. v. STATE OF WEST BENGAL Criminal Appeal No. 2040 of 2008 B MAY 5, 2009 (S.B. SINHA AND R.M. LODHA, JJ.) .. Penal Code, 1860: Sections 141, 142, 143, 149- Unlawful assembly- Some c of the accused not committing any overt act - Whether they must also be held to be a part of the unlawful assembly, or shared common object with the main accused - Held: It depends on various factors principal amongst them being a common object formed by the members thereof to commit an D offence specified in s. 141 - If such a common object is formed constructive liability could be fastened on them. In these appeals, the core question that arose for consideration is as to whether some of the accused who had not committed any overt act must be held to be a part E of the unlawful assembly or shared the common- object with the main accused. Allowing Crl. Appeal Nos.2040 and 2041 of 2008 and dismissing Crl. Appeal Nos.2042 of 2008 and 28 of 2009, the Court F HELD: 1. Whether an assembly is unlawful one or not, would depend on various factors, the principal amongst them being a common object formed by the members thereof to commit an offence specified in one G or the other clauses contained in Section 141 of the Indian Penal Code. Constructive liability on a person on the ground of being a member of unlawful assembly can be fastened for an act of offence created by one or more members of that assembly if they had formed a common H 518 AKBAR SHEIKH & ORS. V. STATE OF WEST BENGAL 519 } object. The distinction between a common object and A common intention is well-known. The prosecution in a case of this nature was required to establish (i) whether the appellants were present; and (ii) whether they shared a common object. [Paras 14, 26] [529-G-H; 530-A, 538-D-E] Shankaraya Naik & Ors. v. State of Karnataka 2008 (12) B SCALE 742 and Maranadu and Anr v State By Inspector of Police, Tamil Nadu 2008 (12) SCALE 420 - held applicable. '.'- Munna Chanda v State of Assam (2006) 3 SCC 752; Saladin & Others v. State of UttarPradesh AIR 1956 SC 181; c Masalti v State of UP (1964) 8 SCR 133; Sherey and Others v. State of U. P. 1991 Supp (2) SCC 437; Musa Khan and Others v State of Maharashtra (1977) 1 SCC 733; Nagarjit Ahir v. State of Bihar (2005) 10 SCC 369; Hori Lal and Another v State of UP (2006) 13 SCC 79 and State of UP v Dan Singh D and Ors. (1997) 3 SCC 747 - referred to. " 2. It is unfortunate that for one reason or the other the trial was not completed for a period of twenty years. Pendency of a criminal case for a long time, as is evident from the fact noticed hereinbefore, is extremely hazardous. E But, then omission on the part of a prosecution witness to name and identify an accused in the dock cannot be held to be wholly insignificant so as to record a judgment -t of conviction. Presence of an accused while the offence was committed is a sine qua non to find him guilty of being F a member of unlawful assembly. If his presence is doubted, question of finding him guilty does not arise. [Para 30] [539-F-H; 540-A] 3. In a case of this nature, the rule of. prudence should be applied. Something more than their being cited as an G accused in a witness box would be necessary. The court .. must have before it some materials to form an opinion that they had shared a common object. It has not been denied or disputed that whereas five brothers were implicated as one brother had deposed against PW-9 and H 520 SUPREME COURT REPORTS [2009] 7 S.C.R. A sons had also been implicated because a father had 1 deposed against them. Whereas PW-1 in his deposition denied that the accused deposed in the case in which a son was found to be guilty of murder of Doi Gobinda Acharya (ex-Pradhan), PW-9 admitted that he committed B the said murder in broad daylight. The defence that there were other reasons for their false implication cannot also be ruled out. There exists absence of any clinching evidence as against the seven appellants in Criminal • Appeal No. 2040 of 2008, particularly when three of them c had not been named at all by PW-1 and four of them had not been named by PW-9. This Court is not unmindful that Akbar and Kanku have been named by both the witnesses but even against them no overt act has been attributed. [Paras 31, 32] [540-B-E] D 4. Doubts legitimately arise as regards their presence and/ or sharing of common
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