BIKAU PADEY AND ORSversusSTATE OF BIHAR

                       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.
                                                                          E
     Practice and Procedure :

       Concurrent findings offact-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 offact-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.
                                                                          G
     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.

     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
                 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 members composing it, and from a
consideration of all the surrounding circumstances. It may be gathered C
from the course of conduct adopted by the members of the assembly.
For determination of the common object of the unlawful assembly, the
conduct of each of the members of the unlawful assembly, before and
at the time of attack and thereafter, the motive for the crime, are some
of the relevant considerations. What the common object of the unlawful D
assembly is at a particular stage of the incident is essentially a question
of fact to be determined, keeping in view the nature of the assef!tbly,
the arms carried by the members, and the behaviour of the members
at or near the scene of the incident. It is not necessary under law that
in all cases of unlawfu.I assembly, with an unlawful common object, the E
same must be translated into action or be successful. Under the
Explanation to Section 141, an assembly, which was not unlawful when
it was assembled, may subsequently become unlawful. It is not necessary
that the intention or the purpose, which in necessary to render an
assembly an unlawful one, comes into existence at the outset. The time
of forming an unlawful intent is not material. An assembly, which, at F
its commencement or even for some time thereafter, is lawful, may
subsequently become unlawful. Jn other words, it can develop during
the course of incident at the spot co instanti. [211-F-H; 212-A-CJ

      3. The purpose for which the members of the assembly set out or G
desired to achieve is the object. If the object desired by all the members
is the same, the knowledge that is the object, which is being pursued, is
shared by the members and they are in general agreement as to how it
is to be achieved and that is now the common object of the assembly. An
object is entertained in the human mind, and it being merely a mental H
                                                                                      ..
    204                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A attitude, no direct evidence can be available and, like intention, has          ~


    generally to be gathered from the act, which the person commits, and          .•
    the result therefrom. Though no hard and fast rule can be laid down
    under' the circumstances from which the common object can be culled               •·
    out, it may reasonably be collected from the nature of the assembly,
B   arms it carries and behaviour at or before or after the scene of incident.
    The word 'knew' used in the second branch of Section 149 IPC implies
    something more than a possibility and it cannot be made to bear the
    sense of'might have been know'. Positive knowledge is necessary. When
    an offence is committed in prosecution of the common object, it would
C   generally be an offence which the members of the unlawful assembly
    knew was likely to be committed in prosecution of the common object.
    That, however, does not make the converse proposition true; there may
    be cases, which would come within the second part of Section 149 IPC
    but not within the first part. The distinction between the two parts of
    Section 149 cannot be ignored or obliterated. In every case, it would be
                                                                                  :
D   an issue to be determined, whether the offence committed falls within
    the first part or it was an offence such as the members of the assembly
    knew to be likely to be committed in prosecution of the common object
    and falls within the second part. However, there may be cases which
    would be within first offences committed in prosecution of the common
E   object would be generally, if not always, with the second, namely, offences
    which the parties knew to be likely committed in the prosecution of the
    common object. [212-E-H; 213-A-CJ.

          Chikkarange Gowda v. State of Mysore, AIR (1956) SC 731, relied
    on.
F
         4.1. Even if the absence of motive as alleged is accepted that is
    of no consequence and pales into insignificance when direct evidence
    establishes the crime. The first information report was lodged almost
    immediately and whatever elaboration has been done is really very
G   minor in nature. Mere seemingly inconsistencies, which are not
    contradictions or omissions or are of trivial nature do not affect the
    substratum of the prosecution version. That is the situation in the case
    at hand. The number of injuries even if not co-related to the number
    of assailants is not material. 1213-D-E]

H         Leela Ram v. State of Haryana, AIR (1999) SC 3717, relied on.
                     BlKAU PANDEY v. STATE OF BIHAR                     205

         4.2. Even if there are in,-egularities or illegalities in the conduct A
    of investigation that is of no consequence. [213-FI

        State of Rajas1han v. Kishore, AIR (1996) SC 3035 and State of
    Karnataka v. K. Yarappa Reddy, AIR (2000) SC 185, relied on.

         5. No interference would be made with concurrent findings of fact B
    based on pure appreciation of evidence, even if this Court were to take
    a different view on the evidence. This Court will normally not enter
    into reappraisal or the review of evidence unless the trial Court or the
    High Court is shown to have committed an error of law or procedure
    and the conclusions arrived at are perverse. This Court cannot enter C
    into the credibility of the evidence with a view to substituting its
    opinion for that of the trial Court or the High Court. This Court may

•   interfere where on proved facts, wrong inferences of law are shown to
    have been drawn. This Court is not a regular Court of appeal to which
    every judgment of the High Court in criminal case may be brought up D
    for scrutinising its correctness. It is only in rare or exceptional case
    where there is some manifest illegality or grave or serious irregularity
    resulting in miscarriage of justice ttiat this Court would interfere with
    such findings of fact. (214-F-H; 215-A-BJ

         Duli Chand v. Delhi Administration, (19751 four sec 469; Ramnik E
    Lal Gokeldas v. State of Gujarat, [I 976) I SCC 6; Mst. Dalbir Kaur v.
    State of Punjab, (1976) 4 SC~ 158; Ramanbhai Naranbhai Patel v. State
    of Gujarat, (2000) 1 SCC 358 and Chandra Bihar Guam v. State ofBihar,
    JT l2002) 4 SC 62, relied on.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
                                                                              F
    I 04-106 of 2003

         From the Judgment and Order dated 3.9.2002 of the Patna High Court


-   in Crl.A (DB) Nos. 303, 352 and 364 of 1987.

        P.S. Mishra, Tathagat H. Vardhan, Amitesh C. Mishra, Vishnu
    Sharma, Tharun Kr. Jha and C.D. Singh for the Appellants.
                                                                              G


         B.B. Singh and Kumar Rajesh Singh for the Respondent.

         The Judgment of the Court was delivered by                           H

•
    206                SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A        ARIJIT PASA Y AT, J. Fiftee.1 persons faced trial for alleged
    commission of offences punishable under Section 302 read with Sections
    149, 148 ofthe Indian Penal Code, 1860 (for short the 'IPC'), Accused
    No.9 (appellant No.5 in the present appeals) additionally faced trial for
    offence punishable under Section 27 of the Arms Act, 1959 (in short the
B   'Arms Act'). Accused No.2 Mahendra Rai (Appellant No.8 in the present
    appeals) who was separately charged for offence punishable under Section
    302 IPC was acquitted of the said charge but instead was convicted as
    afore-noted in terms of Section 302 read with Section 149 IPC. Out of the
    15 accused persons, .two were acquitted and three died during pendency
C   of the appeals before the High Court.

          Prosecution version as unfolded during trial and which formed the
    foundation of the prosecution case is essentially as follows:

             On 17.8.1983, one Sarjug Rai (hereinafter referred to as the
D   'deceased') lost his life allegedly at the hands of the accused. About 5-6
    years preceding the incident when Sarjug Rai was killed· there was a
    partition of the family properties. Kamal Rai was his nephew who
    nourished serious grudge against his uncle, as according to 'him there was
    unequal partition of ancestral properties. Said Kamal Rai, strongly believed
E   that .construction of new house and purchase of tractor, subsequent to
    partition by the deceased was made from cash which had not been divided
    during partition. Though motive appears to be trivial and also stale but
    where direct evidence is available, motive pales into insignificance. The
    accusations appearing from the first information report of Ram Babu Rai
    (PW-14 ), son of the deceased and also narrations made by the witnesses
F   at trial are that on 17 .8.1983 while deceased at about 8.00 a.m. had gone
    to a temple after taking holy dip in a pond, adjacent to the temple, the
    appellants holding weapons came down from the house of Kamal Rai and
    came to the temple, pursuant to which Kamal Rai while exhorting others
    to liquidate the deceased dealt blows with a hard and· blunt substance on
G   his head as he had been unfair to him in partitioning the ancestral
    properties. Dukha Sah (PW-6), the priest of the temple locked the northern
    gate of the temple to save the deceased.· However, he could not be saved
    as accused-appellant Deosharan Rai broke open the lock and dragged the
    deceased outside, 'pursuant to which on exhortation made by Kamal Rai
H   all dealt indiscriminate bl?ws on him with lethal weapons which they were',




                       •
            BIKAU PANDEYv. STATE OF BIHAR [PASAYAT, J.]                207

  carrying. When Shatrughan Pandey (PW-I), Ram Chandra Rout (PW-2), A
. Nandlal Pandey (PW-4) and Sita Saran Rai (PW-5) came to rescue on
  hearing alarms raised by the son of the deceased (PW-14 ); they could not
  proceed to rescue the deceased on being scared by the firing reso11ed to
  by accused-appellant Satya Narain Rai. Rain Babu Rai (PW-14) informed
  the police who visited ~illage Bishanpur and '.recorded his statement, B
  pursuant to which investigation commenced. The police during investigation
  apart from recording statement of witnesses under Section 161 of the Code
  of Criminal Procedure, 1973 (for short the 'Code') visited the place of
  occurrence, and also made seizure of some offending a11icles from the
  place of occurrence. On conclusion of investigation, he laid charge sheet C
  before the Com1 against all the 15 accused persons who were eventually
  put on trial. In the trial, the prosecution examined 17 witnesses. The
  accused persons pleaded innocence and false implication and examined 16
  witnesses to counter the allegations attributed to them. Those examined by
  the prosecution were the villagers of Bishanpur, some outsiders, who were
  either relations of the deceased or claimed to have visited the village for D
   holding panchayati for resolution of the dispute pending between the two
  parties, the doctor and also the police officer.

       As noted supra, accused persons pleaded innocence and false
 implication due to animosity persisting between the parties. Three of the E
 accused persons pleaded alibi to improbabilise their physical presence at
 the site of occurrence. Out of the prosecution witnesses, seven i.e. PWs 2
 to 5, 6, 10, 14 were stated to be eyewitnesses. On consideration of the
 evidence on record, learned 3rd Additional Sessions Judge, Sitamarhi as
 afore-noted convicted 13 accused persons, acquitted two. In respect of F
 three who died during the pendency of the appeal before the High Court
 the appeals abated. The convicted accused preferred three separate appeals
 before the High Court"which by the impugned judgment disposed of them.

      In support of the appeals, learned senior counsel submitted that the
 appellants have been convicted by application of Section 149 IPC. The G
 ingredients necessary to bring in application of the said provision have not
 been established. The plea of alibi has been accepted in respect of two
 accused persons. Though, appellant Mahendra Rai stood at a better footing,
 his plea of alibi has been rejected on erroneous premises. Evidence was
 produced and a witness was examined to substantiate his plea of alibi H
    208                 SUPREME COURT REPORTS (2003) SUPP. 6 S.C.R.

A which has been discarded without, any ba,,;is. Thoug!'t there .were large
    number of injuries, no pa11icular one has been attributed to any pa11icular
    accused, except accused Deo Sharan Rai (A-1 ), Kamal Rai (A-7) and Satya
    Narain Rai (A-9). Accused Kamal Rai has died and the rest two are
    appellants 3 and 5 respectively in these appeals. The motive which was
B sought to be indicated as the foundation of the crime is too scarce and in
    fact Deo Narain Rai(PW-11) who is not an eyewitness and spoke about
    the motive of Kamal Rai has been disbelieved by both the trial Court and
    the High Court. The witnesses are closely related and in fact PW-I I has
    been discarded as unreliable. The investigation was more than perfunctory
    and the Courts below should have taken note of that. Identification in a
C mob is highly improbable. When plea of alibi has been accepted it clearly
    indicates the extent of false implication and the design therefor. One of the
    accused Rabindra Pandey was a child at the time of occurrence. Though
    he should have been separately dealt with under the Children's Act and
    that having not been done his conviction is vitiated. The genesis as
D described by the prosecution is highly improbable._ It is not believable that
    the deceased was going to offer puja in a temple whichprimafacie appears
  . to be without a deity. The place of occurrence has been chosen in a manner
  •as would give some credence to the evidence of some persons like Pujari
    Dukha Sah (PW-6). The evidence of prosecution is to the effect that all
    the accused persons came from the house of accused Kamal Rai. The
E visibility from the place where PW-6 claims to have seen them is well nigh
    impossible. There is no evidence to show that Kamal Rai has disclosed
    to others what he proposed to do, or there was sharing of common object.
    On the other hand, e:ven if it was a case of similar or common intention,
    at the most, the prosecution could press into service Section 34 IPC for
F' which there was no charge and for bringing in application of Section 34
    IPC participation is a must. The allegations of a very general and repetitive
  · nature have been made against all the accused persons. There is no
    evidence that Satya Narain Rai was carrying a country made gun and
    therefore the conviction under Section 27 of the Arms Act is not
G maintainable.
            In response, Mr. B.B. Singh, learned counsel for the State submitted
    that the common object which sine qua non have application under Section
    149 IPC has been clearly brought out. The unimpeachable evidence is that
    all the accused persons armed with deadly weapons came from outside the         .-
H   village in a group. The deceased was dragged first and given lathi blow
          BIKAU PANDEYv. STATE OF BIHAR [PASAYAT, J.]                  209

by accused Kamal Rai which was a fatal one and when his son (PW-14) A
wanted to protect gun was fired to dissuade others from coming to his
rescue. The evidence was more than sufficient to attract Section 149. So
far as the alleged interestedness of the witnesses is concerned, it is trite law
that if after careful analysis and scrutiny, the evidence is found credible,
the conviction can be maintained. Additionally, there were witnesses who B
were not in any manner related. So far as the question of alibi is concerned,
when presence of the concerned accused is satisfactorily established, the
Cou1t would be slow to believe the counter evidence unless it is of such
quality as would create a reasonable doubt on the minds of the Coutt that
the prosecution version was not cogent. The trfal Court and the High Court
have analysed in detail the plea of alibi and have discarded it in view of C
the evidence on record. So far as the claim of accused Rabindra Pandey
to be a minor is concerned, the order dated 27. 7 .1984 passed by the trial
Court clearly shows that it had discarded the plea. In fact the school records
clearly indicated that he was more than 18 years of age on the date of
occurrence. The father filed an affidavit with oblique motive to say that D
there was a wrong recording in the school register. Apparently, such a plea
 is not acceptable and the order dated 27.7.1984 was passed much before
the completion of trial and the same having not been assailed has become
final. Therefore, neither the trial Court nor the High Comt has dealt with
this plea which even does not appear to have been raised before the said E ·
Courts.

         The jurisdictional issue based on purported age of the accused
needs consideration first. The question relating to age of the accused was
never raised before the courts below during trial, and in appeal, necessitating
a decision in this regard. In fact, the Juvenile Act on which the appellants F
have placed reliance was not in existence at the time of occurrence. Further
at no point of time during trial or before the High Court this question was
raised. The necessity of determining the age of accused arises when the
accused raises a plea and the Court ente1tains a doubt. Here, when the claim
was made by the accused that he was a child the plea was considered and G
a decision was rendered that he was not a child. That order has attained
finality without any challenge thereto. The clearly untenable plea that the
school register was wrong, cannot be accepted by accepting the self-
serving affidavit of the father. In any event, there was no argument
advanced either before the trial Court or the High Court on this issue and   H
    210                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A the disputed factual question which has ;; iso attained finality in view of an
    earlier order cannot be permitted to be raised.

           The first information report was lodged almost immediately. The
    police station is situated at a distance of 4 K.M. from the place of
B   occurrence. The occurrence took place at around 8.00 a.m. The FIR was
    recorded at I 0.00 a.m. almost immediately. The investigating officer
    reached the place of occurrence at 11.00 a.m. and the post mortem was
    conducted at 4.00 p.m. The evidence on record goes to show that the
    eyewitnesses were examined from 2.00 p.m. onwards.

C          Acquittal of some of the accused persons will not come to the rescue
    of the other appellants in respect of whom the High Court has considered
    the evidence on record and found them guilty. As noted ~bove, PW-I has
    no relationship with the deceased and his assertion in the examination-in-
    chief has gone unchallenged. It is to be noted that nothing has been elicited
D   in the cross-examination of various witnesses as regards the place of
    occurrence and the manner of occurrence. That being the position, the
    convictions as done cannot be faulted.

          We shall deal with the question regarding applicability of Section
E   149 IPC, which was urged emphatically.

          A plea which was emphasized by the respondents relates to the
    question whether Section 149, IPC has any application for fastening the
    constructive liability which is the sine qua non for its operation. The
    emphasis is on the common object and not on common intention. Mere
F   presenc~ 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 in Section 141. Where common object of
    an unlawful assembly is not proved, the accused persons cannot be
    convicted with the help of Section 149. The crucial question to determine
G   is whether the assembly consisted of five or more persons and whether the
    said persons entertained one or more 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 a
    member of unlawful assembly, it cannot be said that he is a member of
H   an assembly. The only thing required is that he should have understood
            B!KAU PANDEY v. STATE OF BIHAR [PASAYAT, J.]              211

 that the assembly was unlawful and was likely to commit any of the acts A
 which fall within the purview of Section 141. The word 'object' means
 the purpose or design and, in order to make it 'common', 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 it. A common object may be formed by express agreement after B
 mutual consultation, but that is by no means neqessary. 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 may be modified or altered or abandoned at any stage. The
 expression 'in prosecution of common object' as appearing in Section 149 C
·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 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 D
 knowledge, possessed by each member of what is likely to be committed
 in prosecution of their common 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 E
assembl~.


        '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 that object. The F
'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 assembly. For determination of the common
object of the unlawful assembly, the conduct of each of the members of G
the unlawful assembly, before and at the time of attack and thereafter, the
motive for the crime, are some of the relevant considerations. What the
common object of the unlawful assembly is at a particular stage of the
incident is essentially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the members, and the H
    212                 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A behaviour of the members at or near the scene of the incident. It is not
    necessary under law that in all cases of unlawful assembly, with an
    unlawful common object, the same must be translated into action or be
    successful. Under the Explanation to Section 141, an assembly which was
    not unlawful when it was assembled, may subsequently become unlawful.
B   It is not necessary that the intention or the purpose, which is necessary to
    render an assembly an unlawful one comes into existenc.e at the outset. The
    time of forming an unlawful intent is not material. An assembly which, at
    its commencement or even for some time thereafter, is lawful, may
    subsequently become unlawful. In other words it can develop during the
C   course of incident at the spot co instanti.

        Section 149, IPC consists of two pa11s. The first part of the section
  means that the offence to be committed in prosecution of the common
  object must be one which is committed with a view to accomplish the
  common object. In order that the offence may fall within the first part,
D the offence must be connected immediately with the common object of the
  unlawful assembly of which the accused was member. Even ifthe offence
  committed is not in direct prosecution of the common object of the
  assembly, it may yet fall under Section 141, if it can be held that the off.nee
  was such as the members knew was likely to be committed and this is what
E is required in the second part of the section. The purpose for which the
  members of the assembly set out or desired to achieve is the object. If
  the object desired by all the members is the same, the knowledge that is
  the object which is being pursued is shared by all the members and they
  are in general agreement as to how it is to be achieved and that is now
  the common object of the assembly. An object is entertained in the human
F mind, and it being merely a mental attitude, no direct evidence can be
  available and, like intention, has generally to be gathered from the act
  which the person commits and the result therefrom. Though no hard and
  fast rule can be laid down under the circumstances from which the common
  object can be culled out, it may reasonably be collected from the nature
G of the assembly, arms it carries and behaviour at or before or after the scene
  of incident. The word 'knew' used in the second branch of the section
  implies something more than a possibility and it cannot be made to bear
  the sense of 'might have been known'. Positive knowledge is necessary.
  When an offence is committed in prosecution of the common object, it
H would generally be an offence which the members of the unlawful
           BIKAUPANDEYv. STATEOFBIHAR[PASAYAT,J.]                          213

assembly knew was likely to be committed in prosecution of the common A
object. That, however, does not make the converse proposition true; there
may be cases which would come within the second part but not within the
first pai1. The distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue to be determined,
whether the offence committed falls within the first part or it was an offence B
such as the members of the assembly knew to be likely to be committed
in prosecution of the common object and falls within the second part.
However, there may be cases which would be within first offences
committed in prosecution of the common object would be generally, if not
always, with the second, namely, offences which the parties knew to be C
likely committed in the. prosecution of the common object. [See
Chikkarange Gowda and others v. State of Mysore, AIR (1956) SC 731]

        Therefore, Section 149 has been rightly applied when the factual
position as highlighted by the eyewitnesses is considered. Even if the
absence of motive as alleged is accepted that is of no consequence and I)
pales into insignificance when direct evidence establishes the crime. The
first information report was lodged almost immediately and whatever
elaboration has been done is really very minor in nature. Mere seemingly
inconsistencies which are not contradictions or omissions or are of trivial
nature do not affect substratum of the prosecution version. That is the E
situation in the case at hand. The number of injuries even if not co-related
to the number of assailants is not material. [See Leela Ram (dead) through
Duli Chand v. State of Haryana and Anr., AIR (1999) SC 3717]

     Similarly, even if there are irregularities or illegalities in the conduct
of investigation that is of no consequence. [See State of Rajasthan v.            F
Kishore, AIR ( 1996) SC 3"03 5 and State of Karnataka v. K Yarappa Reddy,
AIR (2000) SC 185].

        For discarding the plea of alibi the trial Court and the High Court
have given cogent reasons. Merely because the plea was accepted in respect G
of two accused, that cannot be a ground for acceptance of the plea of alibi
so far as accused Mahendra Rai is concerned. It is interesting to note that
the date of occurrence is 17 .8. l 983 and the accused Mahendra Rai is
supposed to have served from 10.8.1983 onwards till the date of occurrence.
The trial Court noticed that there was no material to show that on the date
                                                                                  H
    214                 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A   of occurrence he was present in the school thro.ughout and even no
    appointment letter showing appointment was produced. This is also evident
    from the certificate exhibito:d. The certificate was to the effect that he was
    on duty as a guard for a period from 10.8.1983 to 17.8.1983 on a regular
    basis. It is inconceivable that a person was appointed for one week on a
B   regular basis. That is an additional ground to reject the plea of alibi. The
    signatures of the appellant on the attendance register were also found to
    be not acceptable.

           Merely because two persons have been acquitted that benefit cannot
    be extended to others in view of the direct evidence establishing their
C   presence and participation in the crime. Though it was pleaded that there
    was no evidence regarding the breaking of lock as deposed by eyewitnesses,
    it is to be noted that investigating officer's objective findings clearly lead
    to acceptability of such plea. The broken lock was seized and exhibited
    as Exb-1. The marks of violence on the door were clearly noticed and noted
D   by the investigating officer.

         It is a settled position in law that there cannot be a re-appraisal of
    evidence unless it is shown that the findings are perverse.

E           We are not inclined to re-examine the whole of the prosecution case
    for finding out as to whether occurrence had taken place in the manner
    alleged by the prosecution. We find no reason to disbelieve any of the
    eyewitnesses. The trial Court as well as the High Court have after critical
    examination of their statements, _rightly concluded that they were' the
    truthful witnesses and that all the appellants in these appeals were present
F   at the time of occurrence. Merely because the witnesses happened to be
    the relations of the deceased is not a ground to reject their testimony. Under
    the circumstances of the case, the aforesaid witnesses appear to be natural
    witnesses who were supposed to be at the place of occurrence. Time and
    again, it has been held by this Court that no interference would be made
G   with the concurrent findings of fact based on pure appreciation of evidence,
    even if this Court was to take a different view on the evidence. The Court
    will normally not enter into reappraisal or the review of evidence unless
    the trial Court or the High Court is shown to have committed an error of
    law or procedure and the conclusions arrived at are perverse. This Court
H   cannot enter into the credibility of the evidence with a view to substitute
          BIKAU PANDEY v. STATE OF BIHAR [PASAYA T, J.]                215

its opinion for that of the trial Court .or the High CoUti. This Court may A
interfere where on proved facts, wrong inferences oflaw are shown to have
been drawn. It needs to be emphasized that this Court is not a regular court
of appeal to which every judgment of the High Court in criminal case may
be brought up for scrutinising its correctness. It is only in rare or
exceptional case where there is some manifest illegality or grave or serious B
irreg~larity resulting in miscarriage of justice that the Court would interfere
with such findings of fact. In this regard, reference may be made to the
judgments of this Court reported in Duli Chand v. Delhi Administration,
[1975] 4 SCC 469; Ramnik Lal Gokaldas and Ors. v. The State ofGujarat,
[1976] I SCC 6); Mst. Dalbir Kaur and Ors. v. State of Punjab, [1976] C
4 SCC 158; Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat,
[2000]1SCC358 and Chandra Bihari Gautam and Ors. v. State of Bihar,
JT (2002) 4 SC 62. This does not appear to be a case where interference
is called for. Looked at fro~ny angle, the appeals are without merit and
deserve dismissal which we direct.
                                                                             D
v.s.s.                                                 Appeals dismissed.