SHRI GOPAL AND ANR . versus SUBHASH AND ORS.

Citation: [2004] 1 S.C.R. 1085 · Decided: 23-01-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed
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Judgment (excerpt)

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SHRJ GOPAL A.ND ANR . 
A 
v. 
SUBHASH AND ORS. 
JANUARY 23, 2004 
[DORAi SW AMY RAJU AND S.B. SINHA, JJ.] 
B 
Criminal Law: 
Penal Code, 1860-Sections 34; 141; 148; 149 and 302-5 persons 
convicted by trial court/or offences under Section 3021149-Discrepancies in c 
the prosecution case raising a doubt as regard formation of common object 
by the accused persons-High Court convicting two accused under Section 
302134 and acquilling the remaining ·three of all the charges-Appeal by 
complainant against acquillal-Held, there is nothing on records to show that 
the respondents herein had any motive or common intention to commit the D 
crime-View taken by High Court as regard doubtful participation of the 
respondents is a possible view-No interference called for in an appeal of 
acquillal when the view taken by Court below is one of the possible views-
Practice and Procedure-Code a/Criminal Procedure, 1973-Section 162(2), 
Explanation. 
E 
Indian Penal Code, I 860-Section I 49-0jfence under-Constitution 
of-Principles, discussed 
Code o/Criminal Procedure, 1973/Evidence Act, 1872-Section 162(2), 
Explanation/Section I 45-'omission '-Amounting to contradiction-Concept 
of. explained. 
F 
There were two groups in a village; one headed by the accused RN 
and the other by the deceased RK. The election to the Dairy Society prior 
to the incident and some other criminal cases launched against members 
of one of the groups were stated to be the reasons of rivalry between the G 
two groups. According to the prosecution, on the day of incident, RN 
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exhorted the others to kill RK whereupon SL fired a shot that hit the 
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deceased. Another shot was tired by MR at the deceased but the same 
missed the target and hit the wall. As a result of multiple injuries, the 
deceased died on the spot. 
1085 
H 
1086 
SUPREME COURT REPORTS 
[2004) I S.C.R. 
A 
The Trial Court convict.ed all the five accused both under Sections 
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148 and 302 read with Section 149 of the Indian Penal Code, 1860 and 
sentenced them to life imprisonment. SL and MR were also convicted of 
an offence under section 27 of !ht Arms Act. On appeal, the High Court 
acquitted the respondents herein of the charge both under Section 148 of 
B 
the Penal code and as also Section 302/149 thereof. The High Court further 
acquitted SL and MR of the charges under Section 27 of the Arms Act 
and converted the sentence under Section 302/149 IPC passed against them 
to one under Section 302/34 IPC. The sentence imposed on SL and MR, 
however, remained unaltered. Hence, the present appeal by the first 
informant. 
c 
On behalf of the appellant, it was contended that the High Court 
committed a serious error in passing the impugned judgment in as much 
as the accused after having assembled, proceeded to the house of the 
deceased with a common object of committing the crime; that in the facts 
and circumstances of this case, the respondents must be said to have 
D formed a common object to do away with the deceased and, thus, the 
conviction under Section 302/149 IPC as also Section 148 IPC was 
sustainable. 
On behalf of the respondents it was contended that there was no 
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formation of common object and a case under Section 149 1.P.C. could 
not be said to have been made out as SL and MR had been found guilty 
under Section 302/34; that PW I, PWS and PW 10 did not make any 
allegation about exhortation by all the accused persons; whereas PW 3, 
PW 4 and PW 8 did not make any such statement before the police; that 
such 'omissions' on the part of PW-3, 4 & 8 amounted to contradiction 
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having regard to explanation to Section 162(2) of the Code of Criminal 
Procedure. 
Dismissing the appeal, the Court 
HELD: I.I. The essence of the offence under Section 149 of the 
G Indian Penal Code would be common object of the persons forming the 
assembly. It is necessary for constitution of the offence that the object 
should be common to the persons who compose the assembly, that is, that 
they should all be aware of it and concur in it. Furthermore, there must 
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be some present and immedidate purpose of carrying into effect the 
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common object. A common object is different from a common inter.tion 
insofar as in the former no prior consent is required, nor a prior meeting 
SHRI GOPAL v. SUBHASH 
1087 
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of mmds before the attack would be required whereas an unlawful object A 
can develop after the people get there and there need not be a prior 
meeting of mi
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