BIKAU PADEY AND ORS versus STATE OF BIHAR

Citation: [2003] SUPP. 6 S.C.R. 201 · Decided: 25-11-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed
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Judgment (excerpt)

BIKAU PADEY AND ORS 
A 
V. 
STATE OF BIHAR 
NOVEMBER 25, 2003 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.J 
B 
Penal Code, 1860 : Section 149. 
Common object-In prosecution of-Liability under-Held : Mere 
presence in an unlawful assembly did not render a person liable-There C 
must be a common object and the person must be actuated by that common 
object-Where common object not proved accused not liable to be 
convicted with the help of S. 149. 
"Common object" and "common intention"-Distinction between-
Explained. 
D 
Criminal Trial, 
Motive-Absence of-Effect-Held : Is of no effect when direct 
evidence establishes the crime. 
Practice and Procedure : 
E 
Concurrent findings of fact-Interference with-Held : Unless there 
is, some manifest illegality or grave or serious irregularity resulting in 
miscarriage ofjustice, Supreme Court would not interfere with .concurrent 
findings of fact-Constitution of India, Art. 136. 
F 
Words and Phrases. 
"In prosecution of common object"-Meaning of-In the. context of 
S. 149 of the Penal Code, 1860. 
The appellants-accused were convicted by the trial court under 
Section 302 read with Section 149 of the Penal Code, 1860. The High 
Court affirmed the conviction. Hence the appeal. 
G 
On behalf of the appellants, it was contended that the ingredients H 
201 
202 
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. 
A necessary to bring in the application of Section 149 IPC had not been 
established. 
Dismissing the appeal, the Court 
B. 
HELD : 1. The emphasis of Section 149 of the Penal Code, 1860 
is on the common object and not on common intention. Mere presence 
in an unlawful assembly 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 iri Section 1'41 IPC. Where common object 
of an unlawful assembly is not proved, the accused persons cannot be 
C convicted with the heip of Section 149. The crucial question to determine 
is whether the assembly consisted of five more persons and whether the 
said persons entertained one or mor~ 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 
D 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 was likely to commit 
any of the acts, which fall within the purview of Section 141. The word 
'object' means the purpose of design and, in order to make it 'common', 
E it must be shared by all. In other words, the object should be common 
to the persons, who compose the assembly, t~at 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 
F the assembly and the other members may just join and adopt it. Once 
formed, it need not continue to be the same. It may be modified, 
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 by virtue of 
G 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 and the 
knowledge, possessed by each member of what is likely to be committed 
H in prosecution of their common object may vary not only according to 
. I 
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BIKAU PANDEYv. STATE OF BIHAR 
203 
the information at his command, but also according to the extent to A 
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. (210-E-H; 211-A-EJ 
2. "Common object" is different. from a "common intention" as B 
it does not requite 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 · 
that object. The "common object" of an assembly is to be ascertained 
from the acts and language of the me
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