BHARGAVAN AND ORS. versus STATE OF KERALA

Citation: [2003] SUPP. 5 S.C.R. 535 · Decided: 17-11-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

BHARGA VAN AND ORS. 
A 
v. 
ST A TE OF KERA LA 
NOVEMBER 17, 2003 
[DORAISWAMY RAJU AND ARIJITPASAYAT, JJ.] 
B 
Penal Code, 1860: 
Section 302 read with section 149-Accused persons armed with deadly 
weapons brutally assaulted the deceased who succumbed to his injuries C 
later-Conviction and sentence by trial court-High Court upholding the 
order-Justification of-Held: Evidence of nephew who was eye witness to 
the occurrence sufficient to prove commission of offence-Also dying 
declaration made to prosecution witnesses reliable-Evidence sufficient to 
fasten guilt by application of section 149-Delay in lodging FJR explained- D 
Plea of alibi by accused not proved-Hence, trial court and High Court 
justified in convicting and sentencing the accused-Evidence Act, 1872-
Sections 3 and 32-Code of Criminal Procedure, 1973-Section 154. 
Section 149-Applicability of-For fastening constructive liability--
General principles-Held: Mere presence in an unlawful assembly does not E 
render person liable-There should be proof of common object among the 
persons who compose the assembly-Also community of object is m•1st and 
the object may exist only upto particular stage and not thereafter-Common 
object ascertained from consideration of all surrounding circumstances-
Intention not necessary for forming unlawfal assembly-Further knowledge F 
of common object is necessary and is to be shared by all the members-There 
need not be direct evidence but could be gathered from the acts committed 
and the result therefrom-it is not necessary to prove overt act against a 
person or each act of accused-Jn the absence of definite roles ascribed to 
the accused it cannot be said that section 149 is inapplicable. 
Evidence Act, 1872-Section 3: 
Related witness-Credibility of-Held: Relationship is not a factor to 
affect credibility of a witness. 
535 
G 
H 
536 
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R. 
A 
According to the prosecution, accused persons, A-1 to A-6 armed with 
B 
deadly weapons and with an intent to commit murder of the deceased brutally 
assaulted him. The incident occurred when the deceased and his nephew were 
on their way to market. All the accused and two others waylaid the deceased 
and his nephew and assaulted the deceased. The nephew cri.ed for help and 
ran towards the home to call others. Meanwhile PWs 2, 3 and 4 reached the 
place of occurrence. Deceased asked for and was given water. Thereafter, the 
deceased named the accused persons who assaulted him, to PWs 2, 3 and 4. 
Deceased was then taken to the hospital where while undergoing the treatment 
he succumbed to his injuries. The nephew had witnessed the incident, and 
lodged an FIR. Charge sheet was filed. Accused persons pleaded innocence 
C and false implication because of previous litigation. Appellant No. l(A-1) took 
plea of alibi. Trial Court convicted the appellants under sections 143, 148. 
and 302 read with section 149 IPC and sentenced them accordingly. High 
Court upheld the conviction and sentence. Hence the present appeals. 
Appellants contended that Section 149 IPC has no application as the 
D ingredients necessary to bring application of the said provision have not been 
established; that the evidence of the nephew was unreliable because of his 
relationship with the deceased and his litigation with the accused persons' 
family; that though it was claimed that the nephew had accompanied the 
deceased, it has not been established; that it is highly improbable that the 
E deceased was assaulted by several persons, and the nephew did not react and 
remained passive onlooker; that after having allegedly made murderous 
assaults on the deceased, no attempt was made to even cause a scratch on the 
nephew who claims to have witnessed the entire occurrence; that the nephew 
did not mention the names of the assailants to the doctor who first treated the 
deceased; that the evidence of PWs. 2 and 3 that they had seen the deceased 
F in an injured condition goes to show that the nephew was not present when 
they reached the spot of occurrence; that the so-called dying declaration before 
PWs. 2, 3 and 4 is a myth as the doctor clearly stated that the deceased was 
unconscious when brought to the hospital, as such the question of his making 
a coherent declaration before PWs. 2, 3 and 4 as claimed is impracticable 
G and also accused no.I was not specifically named; that the plea of alibi has 
been erroneously rejected on hypothetical basis; and that the

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