SANTOSH DEVIDAS BEHADE AND ORS. versus STATE OF MAHARASHTRA

Citation: [2009] 4 S.C.R. 83 · Decided: 06-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

[2009] 4 S.C.R. 83 
SANTOSH DEVIDAS BEHADE AND ORS. 
A 
v 
STATE OF MAHARASHTRA 
Criminal Appeal No. 445 of 2009 
MARCH 6, 2009 · 
.... 
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, 
JJ.] 
Penal Code, 1860: 
B 
s.302 r!w 149- Conviction under- Upheld by High Court c 
- Justification of - Held: On facts, justified. 
ss.149 and 141 - Unlawful assembly- Common object 
- Determination of - Relevant considerations - Discussed. 
Evidence - Witness - Related witnesses - Appreciation 0 
of - Held: Merely because the eye-witnesses were family 
members their evidence could not be per se 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 implicate the accused 
cannot be a ground to discard the evidence which is otherwise E 
cogent and credible - Evidence Act, 1872 - s.3 
Evidence Act, 1872 - s.9 - Evidence of identification -
Identification parade - Object of - Held: Is to test the memory 
of the witnesses based upon first impression and also to enable F 
the prosecution to decide whether all or any of them could be 
cited as eyewitnesses of the crime - It is desirable that a test 
identification parade be conducted soon after arrest of the 
accused - Code of Criminal Procedure, 1973 - s.162. 
Challenge in the present appeal is to the judgment G 
of the High Court upholding the conviction of the 
appellants under s.302 rlw s.149 IPC. 
The conviction of the appellants was challenged 
83 
H 
84 
SUPREME COURT REPORTS 
[2009] 4 S.C.R. 
A before this Court on grounds that the evidence of PWs 2 
and 6 should not have been acted upon by the Courts 
below as they were wife and son of the deceased; that in 
the Test Identification Parade only two accused appellants 
were identified and that s.149 IPC was not applicable in 
B the facts and circumstances of the case. 
Dismissing the appeal, the Court 
HELD:1.1. Mere presence in an unlawful assembly 
cannot render a person liable unless there was a common 
c object and he was actuated by that common object and 
that object is one of those set out in Section 141 IPC. 
Where common object of an unlawful assembly is not 
proved, the accused persons cannot be convicted with 
the help of Section 149 IPC. [Para 5] [94-G-H] 
D 
1.2. The word 'object' means the purpose or design 
and, in order to make it 'comm.,n', it must be shared by 
all. In other words, the object should be common to the 
persons, who compose the assembly, that is to say, they 
should all be aware of it and concur in 1t. A common object 
E 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 the 
assembly and the other members may just join and adopt 
it. Once formed, it need not continue to be the same. It 
F may be modified or 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 
G by virtue of 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 
H and the knowledge, possessed by each member of what 
SANTOSH DEVIDAS BEHADE AND ORS. V 
85 
STATE OF MAHARASHTRA 
is likely to be committed in prosecution of their common A 
object may vary not only according to the information at 
his command, but also according to the extent to 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. [Para 5] [95-C-H] 
B 
1.3. 'Common object' is different from a 'common 
intention' as it does not require 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 C 
that object. The 'common object' of an assembly is to be 
ascertained from the acts and language of the members 
composing it, and from a consideration of all the 
surrounding circumstances. It may be gathered from the 
course of conduct adopted by the members of the D 
assembly. For determination of the common o
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