LexBHUPENDRA SINGH & ORS. versus STATE OF U.P.
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[2009] 6 S.C.R. 262 A BHUPENDRA SINGH & ORS. v. STATE OF U.P. (Criminal Appeal No. 743 of 2009) B APRIL 16, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.] Penal Code, 1860: - c ss.307, 147, 148, 149-Accused party armed with /athis, gun, tamancha and farsa - Assaulted deceased and others - Death of deceased and injuries to others - Conviction under ss.147, 148 and 307 by courts below - Applicability of s.149 D challenged -· Held: Question as to what was common object .. at particular stage of incident is essentially a question of fact to be deten11ined, keeping in view nature of assembly, arms carried by members and behaviour of members at the scene of occurrence - On facts, s. 149 applicable - Conviction E upheld. s. 149 - Common object - Meaning of - Discussed. Evidence: Testimony of related witness - Evidentiary ... value of. F Prosecution case was that a case of abduction and rape was registered against the accused and others on the complaint of deceased and his brothel'S~ On the fateful day, when deceased, complainant and others were going G to fields, the accused persons came from the other side, armed with lathis, tamancha and farsa. One accused armed with gun exhorted to kill deceased. Other accused persons started assaulting deceased with lathis and others weapons. On seeing this, complainant and his H 262 BHUPENDRA SINGH & ORS. v. STATE OF U.P. 263 • brother ran towards the village. On hearing hue and cry, A ' sister, mother and nieces of complainant came to the place of incident and tried to save the deceased. Accused persons started assaulting them due to which they sustained injuries. Thereafter accused persons ran away. · Trial court convicted the accused persons under ss.147, B 148, 149 and 307. High Court affirmed the conviction. :.\: In appeal to this Court, appellant contended that the alleged act was done on the spur of the moment and though it was stated that some of the accused persons c were holding deadly weapons, they were not used and therefore the conviction as recorded cannot be maintained and that s.149 IPC was not applicable. Dismissing the appeal, the Court D -~ HELD: 1. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely E implicate the accused cannot be a ground to discard the evidence which is otherwise cogent a.nd credible. 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 F innocent person. Foundation has to be led if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. [Para 8] (271-D-F] __ ..... G Dalip Singh and Ors. v. The State of Punjab AIR (1953) SC 364; Guli Chand and Ors. v. State of Rajasthan (1974) 3 SCC 698; Vadivelu Thevar v. State of Madras AIR (1957) SC 614; Masa/ti and Ors. v. State of U.P. AIR (1965) SC 202; H 264 SUPHEME COURT REPORTS (2009] 6 S.C.R. A 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 and Anr. v. State of Maharashtra (2005) 10 SCC 404 and Salim Saheb v. State of M.P. (2007) 1 SCC 699, B relied on. 2.1. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a C person liable unless there was a common object and he was actuated by that common object and that object is one of thoi;e 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. It cannot be laid down as a general D proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and E 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
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