Holding

A statement recorded under Section 164 CrPC that incriminates the accused as a whole is a confessional statement, admissible even without independent corroboration, and can be used to infer participation in the common object of an unlawful assembly, leading to the affirmation of both convictions with the death sentence for Nasim altered to life imprisonment and the life sentence for Lokeman Shah upheld.

Summary

In 1984 a communal riot in Calcutta led to the murder of two police officers. Four persons were initially sentenced to death, but on retrial only Lokeman Shah and Nasim @ Naso were convicted; the High Court altered Shah's sentence to life imprisonment and upheld Naso's death sentence. Both appellants challenged their convictions, while the State of West Bengal appealed for enhancement of Shah's sentence. The Supreme Court held that the statement recorded by a Judicial Magistrate under Section 164 CrPC was a confessional statement, voluntarily given, and admissible without separate corroboration, and that it could be used to infer participation in the common object of an unlawful assembly under Section 149 IPC. The Court also affirmed the reliability of the eye‑witness testimony of PW‑24, corroborated by PW‑21 under Section 157 of the Evidence Act. Consequently, the convictions were upheld, Naso's death sentence was reduced to life imprisonment, and Shah's life sentence was left unchanged. Both appeals and the State's enhancement petition were dismissed.

Issues considered

The admissibility and voluntariness of a statement recorded under Section 164 CrPC as a confessional statement.
Whether a confession requires corroboration for a conviction.
The use of a confessional statement to infer participation in the common object of an unlawful assembly under Section 149 IPC.
The reliability and admissibility of eye‑witness testimony of PW‑24 and its corroboration under Section 157 Evidence Act.
The appropriateness of the death penalty in the present case and whether it qualifies as a 'rarest of rare' case.

Legislation cited

Indian Evidence Act, 1872s. 157
Indian Penal Code, 1860s. 142, s. 149, s. 302

Subjects

confessional statementSection 164 CrPCunlawful assemblycommon objectSection 149 IPCdeath penaltyrarest of rare doctrinecorroborationevidencecommunal riot

Judgment

LOKEMAN SHAH AND ANR. ETC. ETC. A
v.
STATE OF WEST BENGAL ETC. ETC.

APRIL 11, 200 I

[K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.] B

Penal Code, 1860-Sections 142: 149 & 302-Murder-Unlawful as-
sembly-Murder of Police personnel by accused in a communal riot-First
accused sentenced to death by Trial Court-High Court upholding conviction
but altered sentence to life imprisonment-Conviction on basis of confessional C
statemen!-Validity of-Held, confessional statement valid-Accused was mem-
ber of unlawful assembly-Conviction and sentence upheld-Criminal Proce-
dure Code, 1974--Section 164.

Second accused sentenced to death by Trial Court and High Court-
Conviction on basis of evidence of eye-witness and corroboration of his state- D
ment by another witness-Admissibility of-Held, such evidence is admissible
in evidence as a corroborative material-Conviction upheld-However, sen-
tence altered to life imprisonment-Evidence Act, 1872--Section 157.

Two police personnel, including a Deputy Commissioner, were bru-
tally murdered after chasing them in a communal riot which broke out on E
account of demolition of a mosque during Holi celebrations. Four persons,
which included two accused appellants, were convicted for murder and
sentenced to death by Trial Court. On a retrial ordered by High Court, the
conviction of the appellants were confirmed by the Trial Court. The High
Court, while confirming the conviction of both, alterrd the sentence from F
death to life imprisonment in respect of the first accused and upheld the
death sentence of the second accused. Hence the appeals by the two ac-
cused. State Government also filed an appeal before this Court for en-
hancement of sentence to the first accused.

The first appellant contended that bis conviction, which was based G
on his statements to Judicial Magistrate, was not a confessional statement;
that the statement was not voluntarily given since one of the co-accused
who was arrested along with him died in lock-up which proved physical
torture by the Police; that he had no common intention with others to
murder the Police personnel; that there is nothing in his statement to show H
1095
1096 SUPREME COURT REPORTS (2001] 2 S.C.R.
A that he shared knowledge with others to murder the Police personnel; and
that the confession, without the corroboration, cannot be acted on for the
purpose of conviction. The second appellant contended that the deposition
PW-24, cannot be treated as wholly reliable; and that there is no corrobo-
ration for the evidence of PW-24.

B Dismissing the appeals, the Court

HELD : 1.1. The statement made by the first appellant does incrimi·
nate himself very much. Whether a statement recorded by Judicial Magis-
trate under Section 164 Cr.P.C. from an accused is confessional or
non-confessional is not by dissecting the statement into different sentences
c and then to pick out some as not inculpative. The statement must be
read as a whole and then only the Court should decide whether it contains
admissions of his incriminatory involvement in the offence. If the result
of that test is positive then the statement is confessional, otherwise not.
Applying that test, the statement of the first appellant is a confessional
D statement. [1102-A-C]

Balbir Singh v. Stale ofPunjab, AIR (1957) SC 216; Pyare Lal Bhargava
v. State of Rajasthan, AIR (1963) SC 1094; Ram Chandra Prasad Shanna v.
Stale of Bihar, AIR (1967) SC 349; Hemraj v. The Stale ofAjmer, [1954) SCR
1133 and M. Narsinga Rao v. State of A.P., [2001) 1 SCC 691, referred to.
E
1.2. The death of the co-accused in the lock up is not a sufficient
ground to eclipse the voluntariness of the confession of the first appellant,
which was recorded by the Judicial Magistrate. There is no allegation that
the Judicial Magistrate has not adopted all the precautions enjoined by
F law before recording the confession. No other formality prescribed under
law has been infringed by the Judicial Magistrate. [1103-D-E)

1.3. The confession shows that the first appellant got himself in-
volved in the episode and the role played hy him. He did not say in so many
words that he shared the common object of the unlawful assembly, which
G usually nobody would say. [1103-H; 1104-A]

1.4. It is within the radius of permissibility that Court can rely on a
factual presumption for the purpose of reaching one conclusion. Thus, the
confessional statement, if admissible and reliable, can be used by the
0

Court for drawing inferences as to whether the confessor shared the com-
H mon object with the rest of the members of the unlawful assembly. For that
LOKEMAN SHAH v. STATE OF WEST BENGAL 1097
purpose the Court will take into account other materials available in A
... evidence. There is no warrant for the proposition that the Court cannot
proceed from the confession even a wee bit for the purpose of knowing
whether the confessor had entertained any particular intention while per·
petrating the acts admitted by him in his confession. [1104-E-G]

1.5. The appellant joined the unlawful assembly knowing fully well B
that it had already become unlawful as its common object was to chase the
persons whom the rioters believed to be responsible for defilement of the
mosque. It is immaterial that the deceased police personnel had no part in
the destruction or defilement of any mosque, but the rioters believed him
to be the one. The chasers carried with them explosive and lethal weapons. c
In all such broad circumstances, it would be insane to presume that the
common object of the chasers was something less than finishing the prey
whom they were chasing after. The conviction passed by the Trial Court
y and the High Court in respect of the first appellant is upheld. [1106-D-F)

Mirzaji v. State of U.P, AIR (1959) SC 572; Mathur Naickerv. State of D
T.N., AIR (1978) SC 647 and Samant v. State ofMaharashtra, AIR (1979) SC
1265, referred to.

1.6. The positional importance of PW-24 as a witness for the occur·
rence is significant. The incident happened in his own house and in his
E
presence. He would thus be one of the most natural witnesses to speak
about what happened in front of him. Neither any cause for PW-24 to have
any bias against the appellant for falsely implicating him nor any difficulty
in indentifying the appellant among the assailants was shown. His evidence
has secured corroboration from the testimony of his father PW-21 who
said that his son reported to him of the incident. Such evidence of PW-21 is F
admissible under Section 157 of the Evidence Act as a corroborative mate-
rial. The conviction of the offence under different counts passed on the
second accused needs no interference. [1100-C-F)

State of T.N. v. Sure sh & Anr., [1998) 2 SCC 372, relied on.
G

• 1.7. Appellants had neither any previous enmity to the victims nor
even any acquaintance with them. They acted in a rage of fury blindfolded
by communal frenzy. In most of the communal riots, the participants are
~
by and large illiterate and indoctrinated people. Such a case cannot be
treated as rarest of the rare cases. The sentence passed on the second H
1098 SUPREME COURT REPORTS [2001] 2 S.C.R.
A appellant under Section 302 read with Section 149 IPC is altered to life
imprisonment. (1106-G-H; 1107-C-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 784
of 2000.

B From the Judgment and Order dated 1.12.99 of the Calcutta High Court
in Crl.A. No. 274/92 and Death Ref. No. 11/96.

WITif J...
Criminal Appeal No. 785 of 2000.
c ,
A.K. Ganguli, S.K. Bhattacharya, V. Rama Subramanian, Ms. Sumita
Mukherjee and Assis Mathew for the Appellants.

Altaf Ahmad, ASG, T.C. Sharma, Ajay Sharma, Ms. Neelam Sharma
and Ms. Paukhuri for the Respondents.
D
The Judgment of the Court was delivered by

THOMAS, J. On the day of Hali celebrations, seventeen years ago in
Calcutta, (as the city was then known) an infuriated motley mob carmined
one street not with "Gula!" (which is often used by ecstatic celebrants) but
E with human blood. They ran berserk blinded by communal frenzy and
unleashed a terror of murder spree on 18.3.1984, along Fatehpur Village ~
Road, which was within the limits of Garden Reach Police Station. Two
among the innocent casualties of the gory episode were a young JPS officer
and his security· guard, both of whom were violently murdered.

F Four persons, out of a number of accused arraigned before the Sessions
Court for murder and other allied offences, were convicted and sentenced to
death by the trial court at the first round. But on a retrial as ordered by the
High Court the Sessions Court confined the conviction to two persons (the
appellants herein) and awarded the sentence of death to both of them.
A Division Bench of the High Court of Calcutta, while confirming the
G
conviction of both, has chosen to uphold the death penalty for appellant
Nasim @ Naso, and altered the sentence passed on appellant Lakeman Shah
from death to life imprisonment, besides lesser sentences for lesser counts of
offences. Both of them have filed appeal before this Court by special leave.

H State of West Bengal is not prepared to spare Lakeman Shah from
LOKEMAN SHAH v. STATE OF WEST BENGAL [THOMAS, J.] 1099
.._ extreme penalty for murdering two of its police personnel and hence the State A
has filed an appeal for enhancement of the sentence to the extreme penalty.
As we heard both the appeals together we have the advantage of disposing
of both of them together by this common judgment.

A communal ri<:>t broke out on the morning of 18.3.1984. Tue rioters
were running on a rampage hither and thither with bombs, brickbats and other B
weapons, prowling for human prey. Vinod Kumar Mehta, a 35-year old JPS
officer was then thei Deputy Commissioner of Police (DCP) at the Port
Division, Calcutta. Tue Garden Reach Police Station falls within the territorial
limits of his domain and henoe he set out to quell the riots, escorted by his
security guard Mukhtar Ali (a police constable) besides some other police c
personnel. When they felt that the infuriated rioters were thirsting for victims
they thought it safe to go into a mosque expecting asylum. But the Imam of
the mosque was not disposed to afford a shelter to such people. So they went
out of the mosque. Tue security guard Mukhtar Ali ran into the house of a
private individual while the Deputy Commissioner ran into the house of a
police constable (PW-21 Abdul Latif Khan). As the rioters were chasing him D
PW-24 Md. Hadis Khan son of PW-21 Abdul Latif Khan gave asylum to the
Deputy Commissioner in his house.

The rioters spotted the fleeing cops. The Deputy Commi8'ioner in order
to save himself from the fury of the chasing mob got into the bathroom of
E
the house of PW-21 but a few of the marauders pursued him up to that place
and caught him and killed him. The security guard was also intercepted by
the blood thirsty assailants and he too was killed. Not having satisfied with
the death of these police personnel the killers mutilated their corpses, stripped
them off, tethered them and tried to incinerate the dead bodies which
succeeded only partly as the bodies remained charred. F

We may refer to the evidence focussing on the two appellants alone.
As against appellant_ Nasim @ Naso, PW-24 Hadis Khan has deposed that
• he saw that accused among the assailants inflicting two blows with an iron
rod on the head of the Deputy Commissioner of Police, the first blow caused
his helmet to slide off, but the second blow fell on the head of the victim.
G
Tue doctor who conducted the autopsy noted as many as twenty two ante-
mortem injuries on the dead body of the Deputy Commissioner, out of which
the injuries on the head consisted of a depressed comminuted fracture
involving the right frontal and parietal and left temporal bones of the skull
crushing tl1e brain. According to the doctor the said injury could be inflicted H
llOO SUPREME COURT REPORTS [2001] 2 S.C.R.
A by an iron rod and that was sufficient in the ordinary course of natnre to cause
death.

Shri A.K. Ganguli, learned senior counsel who argued for the appel-
lants contended that the testimony of PW-24 cannot be treated as wholly
reliable and hence there is no legal justification in relying on his evidence
B being the solitary item as against appellant Naso. Learned senior counsel
alternatively contended that there is no corroboration for the evidence of PW-
24 (Md. Radish Khan) in so far as he implicated appellant Naso. It must be
pointed out that the trial court and the High Court have concurrently accepted
the evidence of PW-24 (Md. Hadis Khan) as reliable. Normally the Supreme
c Court would not upset such a finding unless it is shown that his evidence is
affiicted with such serious infinnity.

The positional importance of PW-24 (Md. Radish Khan) as a witness
for the occurrence is significant. 111e incident happened in his own house and
in his presence. He w01tld thus be one of the most natural witnesses to speak
D about what happened in front of him. We are not told of any cause for PW-
24 to have any bias against appellant Naso for falsely implicating him nor
are we told of any difficulty for PW-24 to identify Naso as one among the
assailants particularly when the witness ascribed a specific serious role to that
accused. His evidence has secured corroboration from the testimony of his
father PW- 21 Abdul Latif who said that his son told him that Deputy
E
Commissioner of Police took shelter in his house and that appellant Naso and
some other persons (whose names were also mentioned) assaulted him. Such
evidence of PW-21 is admissible under Section 157 of the Evidence Act as
a corroborative material. (vi de State of T.N. v. Suresh and Anr., [1998] 2 SCC
372.
F
Thus we have no reason to dissent from the findings of the trial court
in so far as the involvement of appellant Naso in the murder of Deputy
Commissioner of Police (V.K. Mehta) is concerned. The conviction of the
offences under different counts passed on that appellant thus needs no
interference. The question whether tpe sentence of death passed on him need
G be altered or not can be dealt with while considering the appeal filed by the
State of West Bengal for enhancement of the sentence passed on the co-
appellant Lakeman Shah.

Now we proceed to consider the appeal filed by Lakeman Shah. The
H only evidence which prosecution succeeded in adducing against him is a
LOKEMAN SHAH v. STATE OF WEST BENGAL [TIIOMAS, J.] 1101
statement (Ext.13) which is described as confessional statement of appellant A
Lakeman Shah as recorded by PW-51 P.K. Deb (Snb Divisional Judicial
Magistrate). That statement was acted on by the trial court and the High Court
as a confession voluntaiily made by the appellant, and the conviction of that
appellant was made entirely on the said material. Before dealing wiU1 the
contention advanced by Shri A.K. Ganguli, learned senior counsel we deem
B
it apposite to extract the substance of Ext.13 below:

"At about 10 or 10.30 A.M. Naso, Puttan, Akhtar and Chowdhary
came to me for money. They said that money was needed to buy
weapons to fight against persons who set fire to the mosque if they
created any trouble. I told them that I would also fight out. After they c
ran away I heard tl1e sound of a commotion around 11.45 A.M. I saw
two police officers scampering and many who chased them pelting
b1ickbats at them. One policeman in white uniform went to the house
of the Mulla and the other police officer in Khaki dress ran straight.
I threw a brickbat when that police ollicer crossed me, but I do not
D
know whether it hit him. He entered the house of PW-21 and he was
chased by at.hers who threw b1ickbats at him. I also threw one or two
brickbats but I am not sure whether they hit him or not. After some
time four persons (Naso, Pnttan, Akhtar and Chowdhary) came from
the side ofBattikal mosque. I was also taken by them inside the house
of PW-21. I found the police officer in Khaki dress stai1ding near the E
kitchen. When he revealed his identity as the DC some among us said
that they did not know whether he was DC or not. Then all the otl1ers
caught him, I too caught him. ·Then Naso hit him wit11 an iron rod on
his head, but his helmet fell off. Naso hit him again and then tl1e
policeman fell down. Pnttan and Akhtar also dealt blows on him with F
deadly weapons. As I could not stand the gushing of blood I left the
room."

... Shri A.K. Ganguli, learned senior counsel raised a three-pronged attack
on Ext.13. Firstly, he said it did not amount to a confession at all. Second
is, even assuming that it is a confession it caimot be relied on as the statement G
was not voluntary. Third is, even if it can be acted on as a confession it is
insufficient to convict its maker for the offence under Section 302 read witl1
Section 49 !PC as the confessor never said tliat there was a common object
to murder the police officer. Alternatively, he contended that there is nothing
in Ext.13 to show that the confessor shared any knowledge with any others, H
.,_

1102 SUPREME COURT REPORTS [2001] 2 S.C.R
A much less a common object to murder a police officer.

Dealing with the first point we have no doubt that the statement
(Ext.13) attributed to accused Lakeman Shah, does incriminate himself very
much. At any rate it is not exculpative despite the possibility ol reading one
or two sentences culled out separately from the rest of it, in order to say that
B they are not tantamounting to inculpative nature. But the test of discerning
whether a statement recorded by judicial magistrate under Section 164 from
an accused is confessional or non-confessional is not by dissecting the
statement into different sentences and then to pick out some as not inculpa-
tive. The statement must be read as a whole and then only the court should
C decide whether it contains admissions of his incriminatory involvement in the
offence. If the result of that test is positive then the statement is confessional,
otherwise not. Applying that test on Ext.13 statement we have no doubt that
it is a confessional statement.

Learned counsel contended that the confession without corroboration
D cannot be acted on for tl1e purpose of entering a conviction. We are unable
to agree with the said submission as a legal proposition. Way back in
1957, the Supreme Court has laid down the law in explicit terms
that confession if true and reliable can form tl1e basis of conviction. [vi de
Balbir Singh v. State of Punjab, AIR (1957) SC 216, Pyare I.al Bhargava
v. State of Rajasthan, AIR (1963) SC 1094 = [1963] Supple 1 SCR 689
E
and Ram Chandra Prasad Sharma v. State of Bihar, AIR (1967) SC 349 =
[1966] 3 SCR 517. Yet this Court said time and again that as a rule
of prudence the court must seek other circumstances to corroborate a
confession, particularly when the same is retracted. There also the delay
involved in making the retraction was considered relevant for a court to
F judge regarding genuinene;s of the confession. Even about the extent of
corroboration this Court has pointed out as early as in 1954, that if it is
insisted that "each and every circumstance mentioned in the confessional
statement must be separately and independently corroborated then the rule
would become meaningless inasmuch as the independent evidence itself
G would afford sufficient basis for conviction and hence it would be unneces-
sary to call the confession in aid." (vide Hemraj v. The State of Ajmer,
[1954] SCR 1133. This was reiterated by a three-Judge Bench of this Court
in Balbir Singh v. State of Punjab (supra). This is what the learned Judges
observed then:

H "It is necessary to emphasise here that the rule of prudence does not
LOKEMAN SHAH v. STATE OF WEST BENGAL [THOMAS, J.] 1103
require that each aud every circurustauce mentioned in the confession A
with regard to the participation of the accused person in the crime
must be separately aud independently corroborated, nor is it essential
that the corroboration must come from facts aud circurustauces
discovered after the confession was made."

Dealing with the contention that a confession was not voluntary learned B
senior counsel invited our attention to a fact that one of the persons arrested
along with the appellaut died in the lock up (his name is Idris) aud that would
give sufficient indication as to the physical torture which the persons involved
in this case would have been subjected to. Unfortunately neither the prosecu-
tion nor the defence could show how Idris died when he was in police c
custody. The defence did not even bother to ask the investigating officer about
the result of the inquiry conducted by a magistrate under Section 176 of the
Code of C1iminal Procedure, regarding the death of!dris (if he had died while
he was in the lock up the afore-mentioned provision maudates that the inquiry
should be conducted by a magi state). In the absence of any such material it
is too late in the day for this Court, particularly dealing with the appeal under D
Article 136 of the Constitution, to use the death of Idris as a sufficient ground
to eclipse the voluntariness of the confession of Lakeman Shah which was
recorded by a judicial magistrate. In this context we may also point out that
there is no allegation that the Judicial Magistrate has not adopted all the
precautions enjoined by law before recording the confession. No other E
formality prescribed under law has been infringed by PW-51 Judicial Mag-
istrate.

It is on the next point (whether anytl1ing more could be built up on
the basis of the confession) that Shri Ganguli, learned senior counsel for the
appellant, aud Slrri Altaf Ahmad, learned Additional Solicitor General, ap- F
pearing for the State of West Bengal, argued in extenso. Learned senior
counsel for the appellauts pointed out that de hors Ext.13 there is not even
a shred of evidence for involving accused Lokemau Shah with this crime and
hence even if the confession in its full text is received in evidence it is
impermissible to add anything to it for the pmpose of building up a conviction G
of the confessor. At the first blush we felt that the above contention was
impressive. But after hearing Shri Altaf Alunad, learned Additional Solicitor
General and after ruminating deeper into it we felt that the contention is not
legally acceptable.

The confession shows that appellaut Lokemau Shah got himself in- H
!104 SUPREME COURT REPORTS [2001] 2 S.C.R.
A volved in the episode and the role played by him. True, he did not say in
so many words that he shared the common object of the unlawful assembly.
Usually nobody would say like that. We may observe that even a witness for
prosecution in cases involving unlawful assembly would not testify in court
that the accused persons had a particular common object. It is normally the
judicial work of the court to make out from proved facts whether a particular
B
accused shared the common object of the assembly. After all, the common
object once formed would invariably remain in the minds of the members of
the unlawful assembly and it is very seldom that they proclaim it to be heard
by others.

c A fact is said to be proved when, after considering the matters before
i~ the court either believes it to exist or considers its existence so probable
that a prudent man ought under the circumstances of a particular case, to act
upon the supposition that it exist•, (vide Section 3 of the Evidence Act). What
is required is materials on which the court can reasonably act for reaching
the supposition that a certain fact exists. Proof of the fact depends upon the
D degree of probability of its having existed. The standard required for reaching
the supposition is that of a prudent man acting on any important matter
concerning him. [vide M. Narsinga Rao v. State of A.P., [2001] 1 SCC 691].

It is within the radius of permissibility that court can rely on a factual
presumption for the purpose of reaching one conclusion. Thus, the confes-
E
sional statement, if admissible and reliable, can be used by the court for
drawing inferences as to whether the confessor shared the common object
with tl1e rest of the members of the unlawful assembly. For that purpose tl1e
court will take into account other materials available in evidence. There is
no warrant for the proposition that the court cannot proceed from the
F confession even a wee bit for the putpose of knowing whether the confessor
had entertained any particular intention while perpetrating tl1e acts admitted
by him in bis confession. Whether such intention could have focussed on the
common object of the unlawful assembly to which he joined depends upon
other facts.
G Section 149 of !PC consists of two parts. The first part deals with the
commission of an offence by any member of the unlawful assembly in
prosecution of the common object of that assembly. Second part deals with
commission of an offence by any member of an unlawful assembly in a
situation where other members of that assembly know to be likely to be
H committed in prosecution of that object. In either case every member of that
LOKEMAN SHAH v. STATE OF WEST BENGAL [THOMAS, J.] 1105
assembly is guilty of the same offence which another members committed in A
.prosecution of the common object. The focal point is the common object.

In Mizaji v. State of U.P. AIR (1959) SC 572, this Court vivisected
S.149 into two parts and held that the first part means that "the offence
committed in prosecution of the common object must be one which is
committed with a view to accomplish with tl1e common object". Learned B
Judges further observed that "the offence committed must be connected
immediately with the common object of the unlawful assembly of which
accused were members." If it is to come under the second par~ the court must
be in a position to hold that the offence committed was such as the members
knew was likely to be committed, even if the offence was not committed in C
direct prosecution of the common object. But in that event mere possibility
of commission of offence by one of the members of the assembly is not
enough. Mere possibility would swing only in the range of "might or might
not happen". A higher degree of possibility is required to say that the member
of the assembly knew that the offence was reasonably likely to be committed.
In Muthu Naicker v. State ofI:N. AIR (1978) SC 1647, this Court made the D
following observations, which should always be borne in mind by the courts
while considering the application of S.149 of the Penal Code:

"Whenever an uneventful rural society something unusual occurs,
more so where the local community is faction ridden and a fight E
occurs amongst factions, a good number of people appear on the
scene not \Vith a vie\V to participating in the occurrence but as curious
spectators. In such an event mere presence in the unlawful assembly
should not be treated as leadipg to the conclusion that the person
concerned was present in the unlawful assembly as a member of the
unlawful assembly." F

In that case this Court held that where a large crowd collected, and one
among them committed a stray assault on a victim. the said assaul~ cannot
be treated as an act committed in prosecution of the common object of the
unlawful assembly. Nor can the remaining accused be imputed with the
knowledge that such an offence was likely to be committed in prosecution
G
of the common object of the assembly. In Samant v. State of Maharashtra,
AIR (1979) SC 1265, this Court observed that it is an over statement of law
that when a morcha moved on to a stage when it became unlawful any person
who was a member of that morcha must be presumed to share the common
object of the unlawful assembly. The col!It must enter satisfaction that a H
1106 SUPREME COURT REPORTS [2001] 2 S.C.R.
A particular accused was a member of the unlawful assembly either through his
active participation or otherwise. It must further be shown that he shared the
common object of the assembly. Of course the court can draw necessary
inference from the conduct, but mere presence in the assembly is hardly
sufficient to draw any adverse inference against him. The question whether
or not the offence having been committed in prosecution of the common
object of the assembly is one of the fac~ depending upon facts and circum-
stances of each particular case.

In this context it is appropriate to refer to Section 142 of the !PC. It
pertains to a person who intentionally joins an unlawful assembly and
C continues to involve himself in it. The only condition which the section
envisages is tl1at the person who joins the unlawful assembly should have
been aware of the facts which rendered such assembly as unlawful. If he knew
that an unlawful assembly had been formed with a common object and if he
has chosen to join it en-route to its destination the person joining midway
can also be fastened with tl1e vicatious liability envisaged in Section 149 of
D the !PC, unless he drops himself out before reaching such destination.

We have no doubt that appellant Lakeman Shah joined the unlawful
assembly knowing fully well that it had already become unlawful as its
common object was to chase the persons whom the rioters believed to be
responsible for defilement of the mosque. It is immaterial that the deceased
E
V.K. Mehta had no part in the destruction or defilement of any mosque, but
the rioters believed him to be the one. We must bear in mind that the chasers
carried with them explosive and lethal weapons. In all such broad circum-
stances it would be inane to presume that tlie common object of those chasers
was sometlling less than finishing the prey whom they were chasing after.
F
For the aforesaid reasons we are not persuaded to interfere with the
conviction passed by the uial court and concurred by tl1e High Court, in
respect of the appellant Lakeman Shah.

The last and the only remaining aspect is regarding sentence. Appel-
G !ants had neither any previous enmity to the victims nor even any acquaint-
ance with them. It is admitted fact that they acted in a rage of fury blind-
folded by communal frenzy. We are aware that in most of the communal riots
the participants are by and large illiterate and indoctrinated people. When the
literate leaders try to keep themselves away, without participating in the
H perpetration of crimes though, perhaps, some such persons would fan up the
LOKEMAN SHAH v. STATE OF WEST BENGAL [THOMAS, J.] 1107
communal frenzy by their utterances in the minds of the ignorant poor people A
who in a deranged fury rush into the streets prowling for prey. It was an
unfortunate plight of ~ people who are ignorant about the real sublime
thoughts of religions that they threw themselves into the cauldron of com-
munal delirium which was burning up to boiling point. That was a time when
the minds of the rioters turned demented and no sensible thoughts would enter
B
into them. The leaders and the society have not played their part to teach them
that religions are not meant for killing fellow human beings. If ignorance had
prompted people to take up cudgels in the name of religion for indulging in
carnage or murders they are no doubt liable to be convicted and sentenced
for the offence committed by them. But we have great difficulty to treat such
a case as rarest of the rare cases in which the alternative sentence of life c
imprisonment can unquestionably be foreclosed.

Thus, we alter the sentence passed on Nasim @ Naso for the offence
under Section 302 read with Section 149 !PC and impose the next alternative
+ (imprisonment for life) for the said offence. Subject to this modification of
the sentence we dismiss both these appeals. D

B.S. Appeals dismissed.