{"id":113302,"date":"2002-10-10T00:00:00","date_gmt":"2002-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gangadhar-behera-and-ors-vs-state-of-orissa-on-10-october-2002"},"modified":"2015-12-28T04:22:23","modified_gmt":"2015-12-27T22:52:23","slug":"gangadhar-behera-and-ors-vs-state-of-orissa-on-10-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gangadhar-behera-and-ors-vs-state-of-orissa-on-10-october-2002","title":{"rendered":"Gangadhar Behera And Ors vs State Of Orissa on 10 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gangadhar Behera And Ors vs State Of Orissa on 10 October, 2002<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, S.B. Sinha.<\/div>\n
           CASE NO.:\nAppeal (crl.)  1282 of 2001\n\nPETITIONER:\nGangadhar Behera and Ors.\n\nRESPONDENT:\nState of Orissa\n\nDATE OF JUDGMENT: 10\/10\/2002\n\nBENCH:\nARIJIT PASAYAT & S.B. SINHA.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tThis is the second journey of the accused-appellants to this
\nCourt questioning their conviction on being found guilty of offences
\npunishable under Section 302 read with Section 149 and Section 148
\nof the Indian Penal Code, 1860 (in short the ‘IPC’).\n<\/p>\n
\tOn the first occasion apart from the conviction for the aforesaid
\noffences, the appellants were also convicted under Section 307 read
\nwith Section 149 IPC. However, in the second instance, the said
\nconviction has been altered to one under Section 324 read with
\nSection 149 IPC.\n<\/p>\n
\tFiltering out unnecessary details, the prosecution version as
\nunfolded during trial is as follows:\n<\/p>\n
\tOn 31.12.1988, there was an altercation between Jairam Das
\nand Sadananda (hereinafter referred to as the deceased) on one hand
\nand Jagabandhu Samal (D.W.1) on the other near Motto Hat in
\nconnection with occupation\/construction of a shed in a market area.
\nWhen Jagabandhu suddenly got up his head struck against a bamboo
\nprotruding into the thatch and he sustained some injury. Subsequently,
\nwhen Jairam Das (PW-1), Gagan Das (PW-5) and the deceased
\nproceeded towards their village near Balabhadrapur Sasan, they found
\nthat the accused persons armed with lathi, tentas etc. were coming.
\nBeing afraid, the deceased and his companions ran towards to the
\nvillage. Gagan Das (P.W. 5) went inside the house of Sikhar Bal
\nwhereas the other three concealed themselves inside the house of
\nNilakantha Rath (P.W. 8). The house was surrounded by the accused
\npersons who dealt blows on the door and walls of the house and some
\nof them entered inside the house. Accused Panchanan (appellant 10 in
\nthe present appeal) and Subash Samal  (appellant 7 in the present
\nappeal) dragged the three persons and assaulted them. At that time,
\none of the accused persons shouted that police personnel were coming
\nand subsequently all the accused persons fled away. PW-5 who saw
\nthe incident through an opening in the door leaf of the house of Sikhar
\nBal lodged the report before the Police which was treated as the First
\nInformation Report. Apart from PW-1 who was injured in the incident
\nand PW-5, the informant, the occurrence was seen by some other
\npersons including PWs. 2, 3, 4, 7 and 8. The last two witnesses are the
\nowners of the house wherein the deceased and his companions had
\ntaken refuge and also spoke about the occurrence but except a few
\nthey were not able to name the other accused persons. Investigation
\nwas undertaken and on completion thereof, charge sheet was placed.\n<\/p>\n
\tThe accused persons gave a different version of the incident.
\nAccording to them, the allegation that the accused persons being
\narmed followed the deceased and his companions to Balabhadrapur
\nSasan is incorrect.  In fact, some incident took place in the Motto Hat
\nitself where DW-1 was assaulted and in order to save himself, he had
\nbrandished a ‘Bahunga’. As a result, the deceased, PW-1 and Sanatan
\nwere injured. To substantiate their plea, they examined DW-1 and
\nnine others. It was indicated that the appellant-Subash Samal is the
\nson of DW-1. It was claimed by them that since they belonged to
\nCommunist Party and the deceased  belonged to Congress Party, they
\nwere falsely implicated.\n<\/p>\n
\t Originally, there were 21 accused persons. The Additional
\nSession Judge, Bhadrak acquitted six of them and convicted the other
\n15 under Section 302 read with Section 149 IPC and Section 148, IPC
\nas well as under Section 307 read with Section 149 IPC and sentenced
\nthem to suffer imprisonment for life for the conviction and sentence
\nunder Section 302 read with Section 149 IPC, and three years rigorous
\nimprisonment on each count i.e. for offences punishable under Section
\n148 and under Section 307 read with Section 149 IPC. The sentences
\nwere directed to run concurrently.\n<\/p>\n
\tThe 15 accused persons who had been convicted preferred an
\nappeal before the Orissa High Court. A Division Bench by its
\njudgment dated 18.4.1995 dismissed the appeal i.e. Criminal Appeal
\nNo.133\/90. The said judgment of the High Court was assailed before
\nthis Court in appeal arising out of Special Leave Petition
\nNo.4170\/1995.This Court noticed that the High Court had disposed of
\nthe appeal in a very casual manner without even analyzing the
\nevidence and there was no proper application of mind. The matter
\nwas, therefore, remitted back to the High Court. That is how the High
\nCourt heard the appeal again and by the impugned judgment has
\nupheld the conviction of 10 and acquitted the rest of the accused. It is
\nto be noted that in respect of Krishna Mohanty (accused No.17) the
\nHigh Court noticed that there was no finding recorded by the Trial
\nCourt either finding him guilty or otherwise,  and, therefore, it was
\nobserved that it must be deemed that the said Krishna Mohanty had
\nbeen acquitted by the Trial Court. The High Court by its impugned
\njudgment specifically directed acquittal of four of the accused persons
\ni.e. appellants 1, 2, 3 and 15 before it. The judgment of the High Court
\ndated 16.7.1999 is the subject matter of challenge in this appeal.\n<\/p>\n
\tAt the Special Leave Petition  stage because of non-surrender of
\naccused appellant No.7, Subash Samal, the petition was dismissed by
\norder dated 18.7.2000, so far as he is concerned.\n<\/p>\n
\tIn support of the appeal, Mr. S. Misra, learned counsel has
\nsubmitted that though by its previous judgment this Court had
\nrequired the High Court to analyse the evidence vis–vis every
\naccused, it has not been done. In fact, as was done previously, the
\nHigh Court has proceeded on generalized basis. The main eye
\nwitnesses PWs. 1 and 5 are relatives of the deceased and the other
\neye-witnesses are members of the same political party to which the
\ndeceased and PWs. 1 and 5 belonged. The witnesses have not
\nspecifically attributed any definite role to the accused persons.  In fact
\nthey have in an omnibus manner stated that accused persons had
\nassaulted. It is improbable that PW-5 could have seen the occurrence,
\nthrough a small hole as claimed by him.\t The four accused persons
\nwho have been acquitted by the Trial Court stood on similar footing
\nand the logic for their acquittal is equally applicable to the present
\nappellants.  Sikhar Bal in whose house PW 5 claimed to have taken
\nshelter, has not been examined and PWs. 7 and 8 who are the
\nindependent witnesses have also not identified all the accused persons
\nand only identified few of them. Sanatan who, the prosecution
\nclaimed, was injured has also not been examined.  Overt act,  if  the
\nprosecution version is to be accepted, has been attributed to  accused
\nKatia, Subash Samal, Hemant Nayak and Panchanan Bal (appellants
\n4, 7, 8 and 10 respectively). There is no reason as to why the others
\nshould have been convicted.  The ingredients of Section 149 are not
\npresent because the witnesses have not said about the specific roles, if
\nany, played by the accused and mere omnibus statement is not
\nsufficient to bring in application of Section 149. The defence version
\nis more probable and should have been accepted.\t\tThere was a
\ndiscrepancy between the evidence of the so-called eye-witnesses and
\nthe medical evidence on record. With reference to Bolineedi
\nVenkataramaiah and Ors. v. State of Andhra Pradesh (AIR<\/a> 1994 SC\n<\/p>\n
76) it has been stated that before the application of Section 149 the
\nevidence of interested witnesses has to be carefully analysed and
\naccording to learned counsel the said has not been done in the present
\ncase.\tWith reference to Kamaksha Rai and Ors. v. State of U.P. (AIR<\/a>
\n2000 SC 53) it has been submitted that omnibus statements are not
\nsufficient to bring in\tapplication of Section 149. It was also submitted
\nthat since some of the accused persons have been acquitted either by
\nthe Trial Court and the High Court and discarding of evidence of the
\nso-called eye witnesses, a different yardstick should not have been
\napplied so far as the appellants are concerned.\n<\/p>\n
\tIn response, Mr. J.R. Das, learned counsel for the State
\nsubmitted that the evidence of the eye-witnesses is clear, cogent and
\ncredible. Merely because they belonged to a particular political party
\nthere is no reason as to why they would falsely implicate the accused
\npersons. No foundation for falsely implicating them has been
\nestablished. All the accused persons have been named. It has been
\nclearly brought on evidence that they were armed while chasing
\ndeceased and the injured witnesses and were shouting to bring them
\nout when they had taken shelter in the house of Sikhar Bal. Merely
\nbecause Sikhar Bal has not been examined, that does not in any way
\ndilute the evidence of eye witnesses. Further, much has been made
\nout of the non-examination of Sanatan. It has been clearly brought on
\nrecord that his whereabouts are not known and, therefore, he could not
\nbe examined. Further, PW 7 has not stated that except two accused
\npersons whom he had named and identified, others were not present.
\nHe has never stated that the others were not there, and only stated that
\nhe knew the name of two persons. The common intention has been
\nclearly established. Merely because some of the accused persons have
\nbeen acquitted,\t that does not render the evidence of the eye-witnesses
\nsuspect. Two Courts have categorically found that the accused persons
\nwere armed while chasing the deceased and the others, entered into
\nthe house where they were taking shelter and brought them out,\tand
\none of the witnesses had sustained injuries in the occurrence, while
\ndeceased lost his life.\t These findings of fact are conclusive in nature
\nand there is no scope for any interference.\n<\/p>\n
\tWe shall first deal with the contention regarding interestedness
\nof the witnesses for furthering prosecution version.  Relationship is
\nnot a factor to affect credibility of a witness.  It is more often than not
\nthat a relation would not conceal actual culprit and make allegations
\nagainst an innocent person.  Foundation has to be laid if plea of false
\nimplication is made.  In such cases, the court has to adopt a careful
\napproach and analyse evidence to find out whether it is cogent ad
\ncredible.\n<\/p>\n
\tIn Dalip Singh and Ors.\t v. The State of Punjab (AIR<\/a> 1953 SC\n<\/p>\n
364) it has been laid down as under:-\n<\/p>\n
“A witness is normally to be considered independent
\nunless he or she springs from sources which are likely to
\nbe tainted and that usually means unless the witness has
\ncause, such as enmity against the accused, to wish to
\nimplicate him falsely.\tOrdinarily a close relation would
\nbe the last to screen the real culprit and falsely implicate
\nan innocent person.  It is true, when feelings run high
\nand there is personal cause for enmity, that there is a
\ntendency to drag in an innocent person against whom a
\nwitness has a grudge along with the guilty, but
\nfoundation must be laid for such a criticism and the mere
\nfact of relationship far from being a foundation is often a
\nsure guarantee of truth.  However, we are not attempting
\nany sweeping generalization.  Each case must be judged
\non its own facts.  Our observations are only made to
\ncombat what is so often put forward in cases before us as
\na general rule of prudence.  There is no such general
\nrule. Each case must be limited to and be governed by its
\nown facts.”\n<\/p>\n
\tThe above decision has since been followed in Guli Chand and
\nOrs. v. State of Rajasthan<\/a> (1974 (3) SCC 698) in which Vadivelu
\nThevar v. State of Madras (AIR<\/a> 1957 SC 614) was also relied upon.\n<\/p>\n
\tWe may also observe that the ground that the witness being a
\nclose relative and consequently being a partisan witness, should not be
\nrelied upon, has no substance.\tThis theory was repelled by this Court
\nas early as in Dalip Singh’s case (supra) in which surprise was
\nexpressed over the impression which prevailed in the minds of the
\nMembers of the Bar that relatives were not independent witnesses.
\nSpeaking through Vivian Bose, J. it was observed:\n<\/p>\n
“We are unable to agree with the learned Judges of the
\nHigh Court that the testimony of the two eyewitnesses
\nrequires corroboration.\t If the foundation for such an
\nobservation is based on the fact that the witnesses are
\nwomen and that the fate of seven men hangs on their
\ntestimony, we know of no such rule.  If it is grounded on
\nthe reason that they are closely related to the deceased
\nwe are unable to concur.  This is a fallacy common to
\nmany criminal cases and one which another Bench of
\nthis Court endeavoured to dispel  in  ‘Rameshwar v.
\nState of Rajasthan’ (AIR<\/a> 1952 SC 54 at p.59).  We find,
\nhowever, that it unfortunately still persists, if not in the
\njudgments of the Courts, at any rate in the arguments of
\ncounsel.”\n<\/p>\n
\tAgain in Masalti and Ors.   v.\tState of U.P.  (AIR<\/a> 1965 SC\n<\/p>\n
202) this Court observed: (p, 209-210 para 14):\n<\/p>\n
“But it would, we think, be unreasonable to contend that
\nevidence given by witnesses should be discarded only on
\nthe ground that it is evidence of partisan or interested
\nwitnesses…….The mechanical rejection of such evidence
\non the sole ground that it is partisan would invariably
\nlead to failure of justice.  No hard and fast rule can be
\nlaid down as to how much evidence should be
\nappreciated.  Judicial approach has to be cautious in
\ndealing with such evidence; but the plea that such
\nevidence should be rejected because it is partisan cannot
\nbe accepted as correct.”\n<\/p>\n
\tTo the same effect is the decision in State of Punjab v. Jagir
\nSingh (AIR<\/a> 1973 SC 2407)  and Lehna v. State of Haryana<\/a> ( 2002 (3)
\nSCC 76). Stress was laid by the accused-appellants on the non-
\nacceptance of evidence tendered by some witnesses to contend about
\ndesirability to throw out entire prosecution case. In essence prayer is
\nto apply the principle of “falsus in uno falsus in omnibus” (false in
\none thing, false in everything). This plea is clearly untenable. Even if
\nmajor portion of evidence is found to be deficient, in case residue is
\nsufficient to prove guilt of an accused, notwithstanding acquittal of
\nnumber of other co-accused persons, his conviction can be
\nmaintained. It is the duty of Court to separate grain from chaff. Where
\nchaff can be separated from grain, it would be open to the Court to
\nconvict an accused notwithstanding the fact that evidence has been
\nfound to be deficient to prove guilt of other accused persons. Falsity
\nof particular material witness or material particular would not ruin it
\nfrom the beginning to end. The maxim “falsus in uno falsus in
\nomnibus” has no application in India and the witnesses cannot be
\nbranded as liar. The maxim “falsus in uno falsus in omnibus” has not
\nreceived general acceptance nor has this maxim come to occupy the
\nstatus of rule of law. It is merely a rule of caution. All that it amounts
\nto, is that in such cases testimony may be disregarded, and not that it
\nmust be disregarded. The doctrine merely involves the question of
\nweight of evidence which a Court may apply in a given set of
\ncircumstances, but it is not what may be called ‘a mandatory rule of
\nevidence’. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC\n<\/p>\n
366). Merely because some of the accused persons have been
\nacquitted, though evidence against all of them, so far as direct
\ntestimony went, was the same does not lead as a necessary corollary
\nthat those who have been convicted must also be acquitted. It is
\nalways open to a Court to differentiate accused who had been
\nacquitted from those who were convicted. (See Gurucharan Singh and
\nAnr. v. State of  Punjab ( AIR 1956 SC 460). The doctrine is a
\ndangerous one specially in India for if a whole body of the testimony
\nwere to be rejected, because witness was evidently speaking an
\nuntruth in some aspect, it is to be feared that administration of
\ncriminal justice would come to a dead-stop. Witnesses just cannot
\nhelp in giving embroidery to a story, however, true in the main.
\nTherefore, it has to be appraised in each case as to what extent the
\nevidence is worthy of acceptance, and merely because in some
\nrespects the Court considers the same to be insufficient for placing
\nreliance on the testimony of a witness, it does not necessarily follow
\nas a matter of law that it must be disregarded in all respects as well.
\nThe evidence has to be shifted with care. The aforesaid dictum is not a
\nsound rule for the reason that one hardly comes across a witness
\nwhose evidence does not contain a grain of untruth or at any rate
\nexaggeration, embroideries or embellishment. (See Sohrab s\/o Beli
\nNayata and Anr. v. The State of Madhya Pradesh\t1972 3 SCC 751)
\nand Ugar Ahir and Ors. v. The State of Bihar  (AIR<\/a> 1965 SC 277). An
\nattempt has to be made to, as noted above, in terms of felicitous
\nmetaphor, separate grain from the chaff, truth from falsehood. Where
\nit is not feasible to separate truth from falsehood, because grain and
\nchaff are inextricably mixed up, and in the process of separation an
\nabsolutely new case has to be reconstructed by divorcing essential
\ndetails presented by the prosecution completely from the context and
\nthe background against which they are made, the only available
\ncourse to be made is to discard the evidence in toto. (See Zwinglee
\nAriel v. State of  Madhya Pradesh  (AIR<\/a> 1954 SC 15) and Balaka
\nSingh and Ors. v. The State of Punjab. (AIR<\/a> 1975 SC 1962). As
\nobserved by this Court in State of Rajasthan v. Smt. Kalki and Anr.
\n(AIR<\/a> 1981 SC 1390), normal discrepancies in evidence are those
\nwhich are due to normal errors of observation, normal errors of
\nmemory due to lapse of time, due to mental disposition such as shock
\nand horror at the time of occurrence and those are always there
\nhowever honest and truthful a witness may be. Material discrepancies
\nare those which are not normal, and not expected of a normal person.
\nCourts have to label the category to which a discrepancy may be
\ncategorized. While normal discrepancies do not corrode the credibility
\nof a party’s case, material discrepancies do so. These aspects were
\nhighlighted recently in Krishna Mochi and Ors. v. State of Bihar<\/a> etc.
\n(JT 2002 (4) SC 186).  Accusations have been clearly established
\nagainst accused-appellants in the case at hand. The Courts below have
\ncategorically indicated the distinguishing features in evidence so far
\nas acquitted and convicted accused are concerned.\n<\/p>\n
\tIt is submitted that benefit of doubt should be given on account
\nof co-accused’s acquittal. It was submitted that the evidence is
\ninadequate to fasten guilt, and therefore prosecution cannot be said to
\nhave established its case beyond doubt.\n<\/p>\n
\tExaggerated devotion to the rule of benefit of doubt must not
\nnurture fanciful doubts or lingering suspicion and thereby destroy
\nsocial defence.\t Justice cannot be made sterile on the plea that it is
\nbetter to let hundred guilty escape than punish an innocent.  Letting
\nguilty escape is not doing justice according to law. [See: Gurbachan
\nSingh v. Satpal Singh and Others<\/a> [AIR 1990 SC 209].  Prosecution is
\nnot required to meet any and every hypothesis put forward by the
\naccused. [See State of U.P. v. Ashok Kumar Srivastava<\/a> [AIR 1992 SC
\n840]. A reasonable doubt is not an imaginary, trivial or merely
\npossible doubt, but a fair doubt based upon reason and common sense.
\nIt must grow out of the evidence in the case.  If a case is proved
\nperfectly, it is argued that it is artificial; if a case has some flaws
\ninevitable because human beings are prone to err, it is argued that it is
\ntoo imperfect. One wonders whether in the meticulous
\nhypersensitivity to eliminate a rare innocent from being punished,
\nmany guilty persons must be allowed to escape. Proof beyond
\nreasonable doubt is a guideline, not a fetish. [See Inder Singh and
\nAnr. v. State (Delhi Admn.)<\/a> ( AIR 1978 SC 1091)]. Vague hunches
\ncannot take place of judicial evaluation. “A judge does not preside
\nover a criminal trial, merely to see that no innocent man is punished.
\nA judge also presides to see that a guilty man does not escape. Both
\nare public duties.” (Per Viscount Simon in Stirland v. Director of
\nPublic Prosecution ( 1944 AC (PC) 315) quoted in State of U.P. v.
\nAnil Singh<\/a> ( AIR 1988 SC 1998). Doubts would be called reasonable
\nif they are free from a zest for abstract speculation. Law cannot afford
\nany favourite other than truth.\n<\/p>\n
In matters such as this, it is appropriate to recall the
\nobservations of this Court in Shivaji Sahebrao Bobade v. State of
\nMaharashtra<\/a> [1974 (1) SCR 489 (492-493)] :\n<\/p>\n
“……The dangers of exaggerated devotion to the
\nrule of benefit of doubt at the expense of social defence
\nand to the soothing sentiment that all acquittals are
\nalways good regardless of justice to the victim and the
\ncommunity, demand especial emphasis in the
\ncontemporary context of excalating crime and escape.
\nThe judicial instrument has a public accountability.  The
\ncherished principles or golden thread of proof beyond
\nreasonable doubt which runs through the web of our law
\nshould not be stretched morbidly to embrace every
\nhunch, hesitancy and degree of doubt…….”\n<\/p>\n
“…..The evil of acquitting a guilty person light-
\nheartedly as a learned author Glanville Williams in
\n‘Proof of Guilt’ has sapiently observed, goes much
\nbeyond the simple fact that, just one guilty person has
\ngone unpunished. If unmerited acquittals become
\ngeneral, they tend to lead to a cynical disregard of the
\nlaw, and this in turn leads to a public demand for harsher
\nlegal presumptions against indicted ‘persons’ and more
\nsevere punishment of those who are found guilty. Thus
\ntoo frequent acquittals of the guilty may lead to a
\nferocious penal law, eventually eroding the judicial
\nprotection of the guiltness…..”\n<\/p>\n
“…….a miscarriage of justice may arise from the
\nacquittal of the guilty no less than from the conviction of
\nthe innocent…..”\n<\/p>\n
\tThe position was again illuminatingly highlighted in State of
\nU.P.  v. Krishna Gopal (AIR<\/a> 1988 SC 2154).\n<\/p>\n
\tAt this juncture, it would be appropriate to deal with the plea
\nthat ocular evidence and medical evidence are at variance. It would be
\nerroneous to accord undue primacy to the hypothetical answers of
\nmedical witnesses to exclude the eye-witnesses’ account which had to
\nbe tested independently and not treated as the “variable” keeping the
\nmedical evidence as the “constant”.\n<\/p>\n
\tIn Krishna Gopal’s case (supra), the position has been
\nsuccinctly stated as follows:\n<\/p>\n
\t“It is trite that where the eye-witnesses’  account is
\nfound credible and trustworthy, medical opinion pointing
\nto alternative possibilities is not accepted as conclusive.
\nWitnesses, as Bantham said, are the eyes and ears of
\njustice. Hence the importance and primacy of the quality
\nof the trial process.  Eye witnesses’ account would
\nrequire a careful independent assessment and evaluation
\nfor their credibility which should not be adversely
\nprejudged making any other evidence, including medical
\nevidence, as the sole touchstone for the test of such
\ncredibility. The evidence must be tested for its inherent
\nconsistency and the inherent probability of the story;
\nconsistency with the account of other witnesses held to
\nbe credit-worthy; consistency with the undisputed facts
\nthe ‘credit’ of the witnesses; their performance in the
\nwitness-box; their power of observation etc.  Then the
\nprobative value of such evidence becomes eligible to be
\nput into the scales for a cumulative evaluation.\n<\/p>\n
\tA person has, no doubt, a profound right not to be
\nconvicted of an offence which is not established by the
\nevidential standard of proof beyond reasonable doubt.
\nThough this standard is a higher standard, there is,
\nhowever, no absolute standard. What degree of
\nprobability amounts to ‘proof’ is an exercise particularly
\nto each case. Referring to of probability amounts to
\n‘proof’ is an exercise the inter-dependence of evidence
\nand the confirmation of one piece of evidence by another
\na learned author says: (See “The Mathematics of Proof
\nII” : Glanville Williams: Criminal Law Review, 1979 by
\nSweet and Maxwell, p. 340 (342).\n<\/p>\n
\t“The simple multiplication rule does not apply if
\nthe separate pieces of evidence are dependent.\tTwo
\nevents are dependent when they tend to occur together,
\nand the evidence of such events may also be said to be
\ndependent.  In a criminal case, different pieces of
\nevidence directed to establishing that the defendant did
\nthe prohibited act with the specified state of mind are
\ngenerally dependent.  A juror may feel doubt whether to
\ncredit an alleged confession, and doubt whether to infer
\nguilt from the fact that the defendant fled from justice.
\nBut since it is generally guilty rather than innocent
\npeople who make confessions, and guilty rather than
\ninnocent people who run away, the two doubts are not to
\nbe multiplied together. The one piece of evidence may
\nconfirm the other.”\n<\/p>\n
\tDoubts would be called reasonable if they are free
\nfrom a zest for abstract speculation.  Law cannot afford
\nany favourite other than truth.\t To constitute reasonable
\ndoubt, it must be free from an over emotional response.
\nDoubts must be actual and substantial doubts as to the
\nguilt of the accused person arising from the evidence, or
\nfrom the lack of it, as opposed to mere vague
\napprehensions.\tA reasonable doubt is not an imaginary,
\ntrivial or a merely possible doubt; but a fair doubt based
\nupon reason and commonsense.  It must grow out of the
\nevidence in the case.\n<\/p>\n
\tThe concepts of probability, and the degrees of it,
\ncannot obviously be expressed in terms of units to be
\nmathematically enumerated as to how many of such
\nunits constitute proof beyond reasonable doubt.\t There is
\nan unmistakable subjective element in the evaluation of
\nthe degrees of probability and the quantum of proof.
\nForensic probability must, in the last analysis, rest on a
\nrobust common sense and, ultimately on the trained
\nintuitions of the judge. While the protection given by the
\ncriminal process to the accused persons is not to be
\neroded, at the same time, uninformed legitimization of
\ntrivialities would make a mockery of administration of
\ncriminal justice.”\n<\/p>\n
\tAnother plea which was emphasized relates to the question
\nwhether Section 149, IPC has any application for fastening the
\nconstructive liability which is the sine qua non for its operation.  The
\nemphasis is on the common object and not on common intention.
\nMere presence in an unlawful assembly cannot render a person liable
\nunless there was a common object and he was actuated by that
\ncommon object and that object is one of those set out in Section 141.
\nWhere common object of an unlawful assembly is not proved, the
\naccused persons cannot be convicted with the help of Section 149.
\nThe crucial question to determine is whether the assembly consisted
\nof five or more persons and whether the said persons entertained one
\nor more of the common objects, as specified in Section 141.  It cannot
\nbe laid down as a general proposition of law that unless an overt act is
\nproved against a person, who is alleged to be a member of unlawful
\nassembly, it cannot be said that he is a member of an assembly.\t The
\nonly thing required is that he should have understood that the
\nassembly was unlawful and was likely to commit any of the acts
\nwhich fall within the purview of Section 141.  The word ‘object’
\nmeans the purpose or design and, in order to make it ‘common’, it
\nmust be shared by all.\tIn other words, the object should be common
\nto the persons, who compose the assembly, that is to say, they should
\nall be aware of it and concur in it.  A common object may be formed
\nby express agreement after mutual consultation, but that is by no
\nmeans necessary.  It may be formed at any stage by all or a few
\nmembers of the assembly and the other members may just join and
\nadopt it. Once formed, it need not continue to be the same.  It may be
\nmodified or altered or abandoned at any stage.\tThe expression ‘in
\nprosecution of common object’ as appearing in Section 149 have to
\nbe strictly construed as equivalent to ‘in order to attain the common
\nobject’.  It must be immediately connected with the common object
\nby virtue of the nature of the object.\tThere must be community of
\nobject and the object may exist only up to a particular stage, and not
\nthereafter.  Members of an unlawful assembly may have community
\nof object up to certain point beyond which they may differ in their
\nobjects and the knowledge, possessed by each member of what is
\nlikely to be committed in prosecution of their common object may
\nvary not only according to the information at his command, but also
\naccording to the extent to which he shares the community of object,
\nand as a consequence of this the effect of Section 149, IPC may be
\ndifferent on different members of the same assembly.\n<\/p>\n
\t‘Common object’ is different from a ‘common intention’ as it
\ndoes not require a prior concert and a common meeting of minds
\nbefore the attack.  It is enough if each has the same object in view and
\ntheir number is five or more and that they act as an assembly to
\nachieve that object.  The ‘common object’ of an assembly is to be
\nascertained from the acts and language of the members composing it,
\nand from a consideration of all the surrounding circumstances.\tIt
\nmay be gathered from the course of conduct adopted by the members
\nof the assembly.  What the common object of the unlawful assembly
\nis at a particular stage of the incident is essentially a question of fact
\nto be determined, keeping in view the nature of the assembly, the
\narms carried by the members, and the behaviour of the members at or
\nnear the scene of the incident.\t It is not necessary under law that in all
\ncases of unlawful assembly, with an unlawful common object, the
\nsame must be translated into action or be successful.  Under the
\nExplanation to Section 141, an assembly which was not unlawful
\nwhen it was assembled, may subsequently become unlawful.  It is not
\nnecessary that the intention or the purpose, which is necessary to
\nrender an assembly an unlawful one comes into existence at the
\noutset.\t The time of forming an unlawful intent is not material. An
\nassembly which, at its commencement or even for some time
\nthereafter, is lawful, may subsequently become unlawful. In other
\nwords it can develop during the course of incident at the spot co
\ninstanti.\n<\/p>\n
Section 149, IPC consists of two parts.\t The first part of the
\nsection means that the offence to be committed in prosecution of the
\ncommon object must be one which is committed with a view to
\naccomplish the common object.  In order that the offence may fall
\nwithin the first part, the offence must be connected immediately with
\nthe common object of the unlawful assembly of which the accused
\nwas member.  Even if the offence committed is not in direct
\nprosecution of the common object of the assembly, it may yet fall
\nunder Section 141, if it can be held that the offence was such as the
\nmembers knew was likely to be committed and this is what is required
\nin the second part of the section.  The purpose for which the members
\nof the assembly set out or desired to achieve is the object.  If the
\nobject desired by all the members is the same, the knowledge that is
\nthe object which is being pursued is shared by all the members and
\nthey are in general agreement as to how it is to be achieved and that is
\nnow the common object of the assembly.\tAn object is entertained in
\nthe human mind, and it being merely a mental attitude, no direct
\nevidence can be available and, like intention, has generally to be
\ngathered from the act which the person commits and the result
\ntherefrom.  Though no hard and fast rule can be laid down under the
\ncircumstances from which the common object can be called out, it
\nmay reasonably be collected from the nature of the assembly, arms it
\ncarries and behaviour at or before or after the scene of incident.  The
\nword ‘knew’ used in the second branch of the section implies
\nsomething more than a possibility and it cannot be made to bear the
\nsense of ‘might have been known’. Positive knowledge is necessary.
\nWhen an offence is committed in prosecution of the common object, it
\nwould generally be an offence which the members of the unlawful
\nassembly knew was likely to be committed in prosecution of the
\ncommon object.\tThat, however, does not make the converse
\nproposition true; there may be cases which would come within the
\nsecond part but not within the first part.  The distinction betweens the
\ntwo parts of Section 149 cannot be ignored or obliterated.  In every
\ncase is would be an issue to be determined, whether the offence
\ncommitted falls within the first part or it was an offence such as the
\nmembers of the assembly knew to be likely to be committed in
\nprosecution of the common object and falls within the second part.
\nHowever, there may be cases which would be within first offences
\ncommitted in prosecution of the common object would be generally, if
\nnot always, with the second, namely, offences which the parties knew
\nto be likely committed in the prosecution of the common object.\t (See
\nChikkarange Gowda and others v. State of Mysore<\/a> : AIR 1956 SC\n<\/p>\n
731.)<\/p>\n
\tThe other  plea that definite roles have not been ascribed to the
\naccused and therefore Section 149 is not applicable,  is untenable. A
\n4-Judge Bench of this Court in Masalti’s case (supra) observed as
\nfollows:\n<\/p>\n
\t“Then it is urged that the evidence given by the
\nwitnesses conforms to the same uniform pattern and
\nsince no specific part is assigned to all the assailants, that
\nevidence should not have been accepted.\t This criticism
\nagain is not well-founded. Where a crowd of assailants
\nwho are members of an unlawful assembly proceeds to
\ncommit an offence of murder in pursuance of the
\ncommon object of the unlawful assembly, it is often not
\npossible for witnesses to describe accurately the part
\nplayed by each one of the assailants.  Besides, if a large
\ncrowd of persons armed with weapons assaults the
\nintended victims, it may not be necessary that all of them
\nhave to take part in the actual assault.  In the present
\ncase, for instance, several weapons were carried by
\ndifferent members of the unlawful assembly, but it
\nappears that the guns were used and that was enough to
\nkill 5 persons. In such a case, it would be unreasonable
\nto contend that because the other weapons carried by the
\nmembers of the unlawful assembly were not used, the
\nstory in regard to the said weapons itself should be
\nrejected.  Appreciation of evidence in such a complex
\ncase is no doubt a difficult task; but criminal courts have
\nto do their best in dealing with such cases and it is their
\nduty to sift the evidence carefully and decide which part
\nof it is true and which is not.”\n<\/p>\n
\tTo  similar effect is the observation in Lalji v. State of U.P.<\/a>
\n(1989 (1) SCC 437). It was observed that :\n<\/p>\n
\t“Common object of the unlawful assembly
\ncan be gathered from the nature of the assembly,
\narms used by them and the behaviour of the
\nassembly at or before the scene of occurrence. It is
\nan inference to be deduced from the facts and
\ncircumstances of each case.”\n<\/p>\n
In State of U.P. v. Dan Singh and Ors.<\/a> (1997 (3) SCC 747) it
\nwas observed that it is not necessary for the prosecution to prove
\nwhich of the members of the unlawful assembly did which or what
\nact. Reference was made to Lalji’s case (supra) where it was observed
\nthat “while overt act and active participation may indicate common
\nintention of the person perpetrating the crime, the mere presence in
\nthe unlawful assembly may fasten vicariously criminal liability under
\nSection 149”.\n<\/p>\n
\tAbove being the position, we find no substance in the plea that
\nevidence of eye witnesses is not sufficient to fasten guilt by
\napplication of Section 149. So far as the observations made in
\nKamaksha Rai’s case (supra), it is to be noted that the decision in the
\nsaid case was rendered in a different factual scenario altogether. There
\nis always peril in treating the words of a judgment as though they are
\nwords in a legislative enactment, and it is to be remembered that
\njudicial utterances are made in the setting of the facts of a particular
\ncase.  Circumstantial flexibility, one additional or different fact may
\nmake a world of difference between conclusions in two cases (See
\nPadamasundara Rao (dead) and Ors. v. State of Tamil Nadu & Ors.
\n[JT 2002 (3) SC 1].  It is more so in a case where conclusions relate to
\nappreciation of evidence in a criminal trial, as was observed in
\nKrishna Mochi’s case (supra)
\n\t   The inevitable result of this appeal is dismissal which we
\ndirect.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gangadhar Behera And Ors vs State Of Orissa on 10 October, 2002 Author: A Pasayat Bench: Arijit Pasayat, S.B. Sinha. CASE NO.: Appeal (crl.) 1282 of 2001 PETITIONER: Gangadhar Behera and Ors. RESPONDENT: State of Orissa DATE OF JUDGMENT: 10\/10\/2002 BENCH: ARIJIT PASAYAT & S.B. SINHA. JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-113302","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGangadhar Behera And Ors vs State Of Orissa on 10 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gangadhar-behera-and-ors-vs-state-of-orissa-on-10-october-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gangadhar Behera And Ors vs State Of Orissa on 10 October, 2002 - 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