A Supreme Court Bench consisting of Justice Sanjay Kishan Kaul and Justice MM Sundresh has ruled that the mere presence in an assembly per se would not constitute an offense and that it becomes one when the assembly is unlawful. It is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member.

The Court has also cautioned that, "Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offence committed by the others under section 149 IPC".

Throwing light on Section 149 of the Indian Penal Code (IPC) which deals with a common object, the Bench has held that to attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object.

"It is the sharing of the common object which attracts the offense committed by one to the other members. Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one when the assembly is unlawful. It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offense," the Bench ruled.

Thus, the Bench added, "it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member."

It has observed that Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction.

The Bench was hearing appeals filed by the accused, who were convicted for attacking other persons by creating unlawful assembly over a land dispute, and the appeal by the complainant against the acquittal of some of the accused. Two persons died while a few were injured in the incident in the incident. The trial court on the first occasion acquitted two of the accused while convicting five of them. On appeal, the High Court acquitted one more accused while confirming the conviction of the other four. In the process, it dismissed the appeal filed against the acquittal.

In the meanwhile, yet another report was filed in pursuance to the order passed under Section 173(8) of the CrPC providing for further investigation. Ten more accused were added and the case was taken up for trial for the second time, over the same occurrence. This time, four of them were convicted while one was referred to the Juvenile Justice Board being a juvenile in conflict with law. The remaining five accused were acquitted. Thus, life sentences were imposed on the four accused. Once again, appeals were preferred before the High Court. This time, the High Court while dismissing the appeals filed against the acquittal allowed the appeals filed by the convicted accused.

Advocate Abhishek Gupta, on behalf of the accused, would submit that the FIR has been ante-dated. He submitted that no investigation has been done on the motive of the accused and that the courts below ought not to have accepted the evidence of prosecution witnesses being interested witnesses.

Fair, Defective, Colourable Investigation

Regarding duties of the Investigation Officer, the Court observed that, an Investigating Officer being a public servant is expected to conduct the investigation fairly. While doing so, he is expected to look for materials available for coming to a correct conclusion. He is concerned with the offense as against an offender. It is the offense that he investigates.

"Whenever a homicide happens, an investigating officer is expected to cover all the aspects and, in the process, shall always keep in mind as to whether the offence would come under Section 299 IPC sans Section 300 IPC. In other words, it is his primary duty to satisfy that a case would fall under culpable homicide not amounting to murder and then a murder. When there are adequate materials available, he shall not be overzealous in preparing a case for an offense punishable under Section 302 IPC," the Bench observed.

"We believe that a pliable change is required in the mind of the Investigating Officer. After all, such an officer is an officer of the court also and his duty is to find out the truth and help the court in coming to the correct conclusion. He does not know sides, either of the victim or the accused but shall only be guided by law and be an epitome of fairness in his investigation," it added.

The Court explained a subtle difference between a defective investigation, and one brought forth by a calculated and deliberate action or inaction.

"A defective investigation per se would not enure to the benefit of the accused, unless it goes into the root of the very case of the prosecution being fundamental in nature. While dealing with a defective investigation, a court of law is expected to sift the evidence available and find out the truth on the principle that every case involves a journey towards truth. There shall not be any pedantic approach either by the prosecution or by the court as a case involves an element of law rather than morality," the Bench observed.

The Court asserts that a fair investigation would become a colourable one when there involves a suppression. Suppressing the motive, injuries and other existing factors which will have the effect of modifying or altering the charge would amount to a perfunctory investigation and, therefore, become a false narrative.

"If the courts find that the foundation of the prosecution case is false and would not conform to the doctrine of fairness as against a conscious suppression, then the very case of the prosecution falls to the ground unless there are unimpeachable evidence to come to a conclusion for awarding a punishment on a different charge," it asserted.

On Private Defence

The Court observed that a private defence need not be set up in a particular manner. Such a private defence need not be confined to the individual accused alone, to be applied to the others. Though the initial onus is on the accused to satisfy the court, the extent of evidence is that of preponderance of probabilities. Thereafter, the onus shifts.

"Once a private defence is accepted, there are two questions alone to the answered by the court, namely, the defence coming within the purview of Section 96 to Section 102 IPC and the other acting in excess. The concept of acting in excess has to be seen from the point of view of continued existence of the apprehension of danger. When the apprehension gets effaced with the attack being continued by an accused taking the plea of private defence, exceeding the said right would occur. The weapons used in the process would attain significance depending upon the facts of the case and if the injuries suffered by the accused unless being minor and superficial or suppressed on purpose, the benefit shall enure," the Court commented.

Falsus in Uno- Falsus in Omnibus

While explaining the principle the Court pointed out that, when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance.

"The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject," the Court held.


The Bench asserts that, motive might lose its significance when adequate evidence in the form of eyewitnesses are available to the acceptance of the court. But, when a motive might have the impact of introducing a perceptible change to the very case projected by the prosecution, in favour of the accused, it cannot be brushed aside.

"It becomes more relevant when an accused sets up the plea of private defence. A common object and a motive may get interconnected. Thus, a deliberate and intentional avoidance of unimpeachable evidence qua motive would make the version of the prosecution a serious suspect," the order states.

"We are distressed to note that the investigation has not been conducted in a fair manner," the Court commented while observing discrepancies in the testimony of complainant and witnesses as well as conduct of the investigating officer.

The Court concluded that, "When the plea of private defence is taken, the quality of material evidence will have to be a bit higher than that of the one required in a normal circumstance. We are concerned with the role of the prosecution in proving the case beyond reasonable doubt. Unfortunately, two lives have been lost. However, mere suspicion on a moral ground can never be the basis for a conviction. We can only lament that the situation has been brought forth by the unwarranted approach of the prosecution. Incidentally, we approve the views of the High Court on the acquittals rendered."

The Bench allowed the two appeals filed by the accused.

Case Title: Arvind Kumar @Nemichand & Ors Versus State of Rajasthan