SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS.versusSTATE OF GUJARAT

                        [2016] 5 S.C.R. 421                              421



    SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS.                             A
                                 v.
                       STATE OF GUJARAT
             (Criminal Appeal Nos. 1999-2000 of20 I 0)
                        OCTOBER 03, 2016                                  B

   [PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.)
      Penal Code, I860:
      "s.302 rlw s.I49, .s.143, 147, 148, 323 rlw s.149 - Conviction
under - Unlawful assembly and murder - Common object of killing           c
- Prosecution case was that on the fateful day, hot altercation took
place over money between accused no. I-food stall owner and the
deceased and other prosecution witnesses - Accused no. I abused
PW-I and took out knife - However, PW-3 intervened and separated
PW-I and other prosecution witnesses and accused no.I - Thereafter,
                                                                          D
complainant party travelled to another village where they narrated
the incident to PW-5 - Thereafter, while PW-5 had gone to fill petrol,
accused persons came to the place where PW-I and other
prosecution witnesses were waiting for PW-5 - Accused no. I, 2 and
3 caused knife injuries to the victim-deceased while other accused
persons started beating the complainant and other prosecution             E
witnesses with sticks - Complainant and PW-2 and PW-3 fled to
save themselves and narrated the incident to PW-14 whereafter they
came to the spot and took victim-deceased to hospital where he
died - Trial court found the accused persons guilty - High Court
confirmed conviction - On appeal, held: The nature of the injury,
                                                                          F
the vital part of the body on which the same was inflicted and the
weapon used by accused no.I, and the medical evidence showed
that the said injury was sufficient in the ordinary course to cause
death - The offence of murder was proved beyond reasonable doubt
against the accused - Interference -with the conviction not called
 for.                                                                     G
       s.300, Exception 4 - Invocation of-Accused no. I had arrived
at the scene of occurrence with nine armed men out of which three
were equipped with knives and the rest with sticks - Sufficient time
had elapsed between the initial altercation at the restaurant of
accused no. I and the subsequent arrival of the accused persons at        H
                                 421
422            SUPREME COURT REPORTS                        [2016] 5 S.C.R.


A     the spot of the crime - It was also established from the evidence
      that accused no.I had inflicted knife injury of such a nature, upon
      the unarmed deceased, that was sufficient in the ordinary course of
      nature to cause death - Hence, benefit of Exception 4 of s.300
      cannot be granted to accused no. I in the present case.
B            s. I 49 - Invocation of- Overt act - Held: For invoking s.149,
      the liability of other members ofthe unlawful assembly for the offence
      co111mitted during the continuance of the occurrence, rests upon the
      fact whether the other members knew before hand that the offence
      actually committed was likely to be co111111itted in prosecution of the
      common object.
c
            Criminal law Motive - Conviction in the absence of proof of
                         1:


      motive - Held: In case there is direct trustworthy evidence of
      witnesses as to commission of an offence, the motive part loses its
      significance - Therefore, if the genesis of the motive of the
      occurrence is not proved, the ocular testimony of the witnesses as
D     to the occurrence cannot be discarded only on the ground of
      absence of motive, if otherwise the evidence is worthy of reliance.
            Dismissing the appeals, the Court
            HELD: 1. The High Court found that there were three stab
E     injuries on the chest, stomach and intestine which we~e sufficient
      in the ordinary course of nature, to cause death of the deceased,
      thereby attracting clause, "thirdly" of Section 300 read with
      Section 149 of the IPC. As per clause Thirdly of Section 300 of
      the IPC, if the accused were having common object of causing
      only bodily injury, which were found sufficient in the ordinary
 F    course of nature, to cause death, such killing will fall within the
      ambit of this clause Third of Section 300 of IPC. Thus, looking to
      the deposition of the prosecution witnesses, the offence of murder
      was proved beyond reasonable doubt against the accused. [Paras
      13, 14) [429-A-B, E)
G           2. Once it is established that the unlawful assembly had a
      common object, it is not necessary that all the persons forming
      the unlawful assembly must be shown to have committed some
      overt act. For the purpose of incurring vicarious liability under
      the provision, the liability of other members of the unlawful
      assembly rests upon the fact whether the other members knew
H
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                        423
                 STATE OF GUJARAT

before hand that the offence actually committed was likely to be       A
committed in prosecution of the common object. (Para 19) (432-
G-H; 433-A]
       3. It is settled legal position that even if the absence of
motive, as alleged, is accepted, that is of no consequence and
pales into insignificance when direct evidence establishes the          B
crime. Therefore, in case there is direct trustworthy evidence of
witnesses as to commission of an offence, the motive part loses
its significance. (Para 22) (433-E]
       4. To invoke Exception 4 to Section 300 of IPC, four
requirements must be satisfied, namely, it was a sudden fight;          c
there was no pre-meditation; the act was done in a heat of passion
and the assailant had not taken any undue advantage or acted in.
a cruel manner. Accused no.1 had arrived at the scene of
occurrence with nine armed men out of which three were equipped
with knives and the rest were equipped with sticks. Sufficient
amount of time had elapsed between the initial altercation at the       D
restaurant of Accused no.1 and the subsequent arrival of the
accused persons at the spot of the crime. Moreover, it was also
established from the evidence on record that Accused no.1 had
inflicted knife injury ofsU:ch a nature, upon the unarmed deceased,
that was sufficient in the ordinary course of nature to cause death.    E
Hence, benefit of Exception 4 of Section 300 IPC cannot be
granted to accused No.1 in the present case. [Para 32) [433-F;
437-B-C]
      Daya Kishan v. State of Haryana 2010 (4) SCR 854 :
      (2010) 5 SCC 81; Sikandar Singh v. State of Bihar 2010            F
      (8 ) SCR 373 : (2010) 7 SCC 477; State of U.P. v.
      Krishanpal & Ors. 2008 (11) SCR 1048 : (2008) 16
      SCC 73; Debashis Daw v. State of W.B. 2010 (9) SCR
      654 : (2010) 9 SCC 111; Ramachandran & Ors v. State
      Of Kera/a 2011 (13) SCR 923 : (2011) 9 SCC 257;
      Hari Shankar v. State of U.P. 1996 (2) Suppl. SCR 348             G
      : (1996) 9 SCC 40; _Bikau Pandey & Ors. v. State of
      Bihar 2003 (6) Suppl. SCR 201 : (2003) 12 SCC 616;
      Abu Thakir & Ors. v. State of Tamil Nadu 2010 (4)
      SCR794 : (2010) 5 SCC 91; State of U.P. l~ Kishanpal
      & Ors. 2008 (11) SCR 1048 : (2008) 16 sec 73; Bipin               H
424              SUPREME COURT REPORTS                 [2016) 5 S.C.R.



A          Kumar Monda! v. State of West Bengal 2010 (8) SCR
           1036 : (2010) 12 sec 91 - relied on.
           Ganga Kumar Srivastava v. The State of Bihar (2005)
           6 SCC 211; State <Jf U.P. v. Virendra Prasad AIR 2004
           SC 1517 : 2004 (2) SCR 39 : 2004 (9) sec 37; State
B          of Maharashtra v. Kashi Rao & Ors. 2003 (2) Suppl.
           SCR 1060 : (2003) 10 SCC 434; Akbar Sheikh & Ors.
           v. State of West Benf{al 2009 (7) SCR 518 : (2009) 7
           SCC 415; Rachamreddi Cheena Reddy v. State of A.P.
           (1999) 3 SCC 97; Fatta & Ors. v. State <Jf U.P. (1980)
           Supp SCC 159; Zahoor & Ors. v. State <Jf U.P. (1991)
c          S_upp(l) SCC 372; Lalji & Ors. v. State <Jf U.P. 1989
           (1) SCR 130 : (1989) 1 SCC 437; Gangadhar Behera
           and Ors. v. State of Orissa 2002 (3) Suppl. SCR183 :
           (2002) 8 SCC 381; Masalti v. State of U.P., AIR 1965
           SC 202 : 1964(8) SCR 133; Virsa Sinf{h v. State <Jf
D          Punjab AIR 1958 SC 465 : 1958 SCR 1495; Surinder
           Kumar v. Union Territory, Chandigarh 1989 (1) SCR
           941: (1989) 2 sec 217 - referred to.
                           Case Law Reference
      c200~) 6   sec 211          referred to            Para 10
E
      2004 (2) SCR 39             referred to            Para 14
      2003 (2) Suppl. SCR 1060    referred to            Para 15
      2009 p) SCR 518             referred to            Para 15
      (1999) 3 sec 97             referred to            Para 15
 F    (1980) Supp sec 159         referred to            Para 15
      (1991) Supp(l) sec 372      referred to            Para 15
      1989 (1) SCR 130            referred to            Para 16
      2002 (3) Suppl. SCR 183     referred to            Para 18
G     2010 (4) SCR 854            relied on              Para 19
      20.10 (8 ) SCR 373           relied on             Para 19
      2008 (11) SCR 1048         · relied on             Para 19
      2010 (9) SCR 654             relied on             Para 19
 H    20P (13) SCR 923             relied on             Para 19
    SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                             425
                  STATE OF GUJARAT

 1996 (2) Suppl. SCR 348         relied on                Para 22            A
2003 (6) Suppl. SCR 201          relied on                Para22
201Q (4) SCR 794                 relied on                Para22
 2008 (11) SCR 1048              relied on                Para 22
 2010 (8) SCR 1036               relied on                Para 22            8

 1964(8) SCR 133                 referred to               Para 24
 1958 SCR 1495                   referred to               Para26
 19~~ (1) SCR 941                referred to               Para 31
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                                                                              c
 Nos. I 999-2000 of20 I 0.
       From the Judgment and Order dated 24.10.2008 of the High Court
 of Gujarat at Ahmedabad in CRLA No. I I 7/2007 & CRLA No. 2274/
 2006.
                                                                              D
       Prathiv Goswami, Pradhuman Gohil, Vikash Singh, Ms. Taruna
 Singh Gohil, Jaikriti S. Jadeja, Himanshu Chaubey, Advs. for the
 Appellants.
       D. N. Ray, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Aagam
 Kaur, Advs. for the Respondent.                                              E
       The Judgment of the Court was delivered by
       PINAKI CHANDRA GHOSE, J. I. These appeals by special
 leave, have been directed against the judgment and order dated
 24. I 0.2008 passed by the High Court of Gujarat atAhmedabad in Criminal
 Appeal Nos. I I 7 of 2007 and 2274 of 2006 respectively, whereby the         F
 High Court dismissed the criminal appeals filed by the appellants herein
 and confirmed their conviction and sentence for various offences
 punishable under Section 302 read with Sections 143, 147, 148, 323 of
 the Jndian Penal Code, 1860 [hereinafter referred to as "IPC"].
        2. The brief facts necessary to dispose of these appeals are that     G
  on 04.03.2005 at about 8:00 p.m., one Rajubhai Jesingbhai Vasava(PW I),
  along with Rajubhai Ramubhai Vasava (deceased), Rakeshkumar
  Manharbhai Patel (PW2) and Prajeshkumar lshwarbhai Patel (PW3),
· four persons, had gone toAmboli Cross-road, on two motorcycles, from
  the house of Rakeshbhai Tailor at Kho Iwad, for eating Biryani and after
                                                                              H
426             SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A     reaching at the Lari of Saddik @ Lalbhai Gulam Hussain Shaikh of
      Village Kathor (Accused No. I), they ordered four plates of Biriyani.
      But they were served only three plates ofBiriyani with chicken pieces
      and one plate of Biriyani without chicken pieces. When Accused No. I
      insisted on payment for four plates of Biriyani, there was a hot altercation
      between Rajubhai Ramubhai Vasava and other prosecution witnesses,
B
      on the one hand and Accused No. I i.e. Saddikbhai @ Lalbhai Gulam
      Hussain Shaikh, on the other. Thereafter, they had to pay money for
      four plates of Biriyani and all this while Accused No. I was abusing
      PW I and other prosecution witnesses and had also drawn out a knife.
      However, PW3 intervened and separated PWI and other prosecution
c     witnesses and Accused No. I.
             3. Thereafter, when PW! and other prosecution witnesses were
      travelling to Village Kholwad on two motorcycles, they met one
      Kishorbhai Kantibhai Dholia (PW5) who happened to be the uncle of
      PW I and narrated the whole incident before him who assured that he
D     would settle the dispute since he was well-acquainted with Accused
      No. I. Thereafter, while PWS had gone to fill petrol in his motorcycle,
      the accused persons came in auto rickshaws to the spot where PW!
      and other prosecution witnesses were waiting for the return of PW5
      and according to the statement of the complainant (PW I) in the FIR,
      Accused Nos. I, 2 and 3 caused knife injuries to the deceased Rajubhai
 E    Ramubhai Vasava while other accused persons started beating the
      complainant and other prosecution witnesses with sticks.
             4. Thereafter, the complainant, PW2 and PW3 had to flee to save
      themselves and when they arrived at the house of PW I, they recounted
      the entire incident to his father Jesingbhai Chhaganbhai Vasava (PW! 4)
 F    who immediately rushed to the scene of occurrence in the car of one
      Shri Aminbhai and carried the severely injured Rajubhai to Dinbandhu
      Hospital wherefrom he was shifted to Mahavir Hospital where he expired.
             5. The law was set into motion upon lodging of FIR by PWI
      (complainant) on 04.03.2005 at 11.55 p.m., at Kamrej Police Station.
G     The FIR was registered as C.R.No. 1-30 of 2005. The postmortem of
      the deceased was performed by Dr. Pranav Vinodchandra Prajapati
      (PW! 5). Looking to the postmortem note, marked Exh. 67, there were
      injuries on chest, stomach and intestine by knives.
            6. Upon completion of investigation, charge sheet under Sections
 H    143, 147, 148, 149, 302, 323 and 504 of the IPC and Sections 3(1)(10)
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                               427
    STATE OF GUJARAT (PINAKI CHANDRA GHOSE, J.]

and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention          A
ofAtrocities) Act, I 989, was filed on 26.04.2005 in the Court of Judicial
Magistrate, First Class, Kathor. However, the case being exclusively
triable by the Court of Sessions, Surat, the same was committed to the
Hon'ble Sessions Court under Section 209 of the Cr.P.C. Accordingly, a
Special Atrocity Case No.6 of2005 was registered against the accused.
                                                                              B
Thereafter, upon the case being transferred to the Court of Additional
Sessions Judge, 2"d Fast Track Court, Surat City, Surat, charges were
framed against the accused persons vide Exh.8, for the offences
punishable under Sections 143, 147, 148, 149, 302, 323, 504 oflPC and
under Sections 3(1)(I0) and 3(2)(5) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. After they denied      c
the said charges, the evidence of prosecution witnesses was recorded.
       7. Upon recording the evidence of the prosecution witnesses and
after considering all the relevant facts, the Trial court vide its judgment
and order dated I 6.11.~06 convicted the accused persons, mainly for
the offence punishable under Section 302 read with Sections 143, 147,          D
148, 323 of the IPC and sentenced them to rigorous imprisonment for            '
life and to pay a fine of Rs. 1,000/- and in case of default, to undergo
further simple imprisonment for six months. The accused persons were
acquitted of the offences punishable under section 504 of lPC and
Sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. Being aggrieved by the            E
aforesaid judgment and order of the Trial Court, the accused persons
filed appeals before the High Court. While Accused No. 5 preferred
Criminal Appeal No. 2000 of2010, Criminal Appeal No. I 999 of2010
was preferred by original Accused Nos. I to 4, 6 and 7.
      8. The High Court vide its judgment and order dated 24.10.2008,          F
dismissed the aforesaid appeals filed by the accused persons and
confirmed the judgment of conviction passed by the Trial court. Aggrieved
by the aforesaid judgment and order passed by the High Court, the
accused persons have sought to challenge the same before us in these
appeals.                                                                       G
      9. We have heard the learned counsel appearing for the accused
appellants as also the learned counse I appearing for the respondents and
have perused the oral and documentary evidence on record.
      I 0. The principles for the exercise of jurisdiction in a petition
under Article 136 of the Constitution of India have been succinctly            H
428               SUPREME COURT REPORTS                         [2016] 5 S.C.R.


A     summarized by a two-judge Bench of this Court in G"nga Kumar
      Srivastava Vs. The State of Bihar, (2005) 6 SCC 211, in the following
      terms:
            I.      "The powers of this Court under Article 136 of the
                    Constitution are very wide but in criminal appeals this Court
B                   does not interfere with the concurrent findings of the fact
                    save in exceptional circumstances.
            u.      It is open to this Court to interfere with the findings of fact
                    given by the High Court if the High Court has acted
                    perversely or otherwise improperly.
c           m.•     Jt is open to this Court to invoke the power under Article
                    136 only in very exceptional circumstances as and when a
                    question of law of general public importance arises or a
                    decision shocks the conscience of the Court.
            1v.     When the evidence adduced by th~ prosecution fell short
D                   of the test ofreliability and acceptability and as such it is
                    highly unsafe to act upon it.
            v.      The appreciation of evidence and finding is vitiated by any
                    error oflaw of procedure or found contrary to the principles
                    of natural justice, errors of record and misreading of the
 E                  evidence, or where the conclusions of the High Court are
                    manifestly perverse and unsupportable from the evidence
                    on record."
              11. Keeping in mind the above position oflaw as enunciated and
      settled by a series of decisions of this Court, we shall now examine the
 F    evidence adduced by the parties and the materials on record and see
      that in view of the nature of offence alleged to have been committed by
      the appellants, whether the concurrent findings of fact call for interference
      in the facts and circumstances of the case.
              12. In the present case, there have been concurrent findings as
 G    to the guilt of the accused persons by both the courts below. In upholding
      the judgment and order of conviction of the Trial Court, the High Court
      had primarily relied upon the evidence of eye-witnesses, namely, PW I,
      PW2 and PW3, who were found to be trustworthy and their statements
      corroborated each other. The High Court held that the accused were
      sharing the common object of causing injuries to the deceased and the
 H
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                                  429
    STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.]

prosecution witnesses.                                                           A
       13. Further, looking to the evidence given by PWIS (Exh. 63),
who had performed the post-mortem of the deceased, the High Court
found that there were three stab injuries on the chest, stomach and
intestine which were sufficient in the ordinary course of nature, to cause
death of the deceased, thereby attracting clause, "thirdly" of Section            B
300 read with Section 149 of the !PC.
       14. The High Court relied upon the judgment of this Court in
State of U.P. Vs. Virendra Prasad, AIR 2004 SC 1517= 2004 (9) SCC
37, in support of the aforesaid conclusion, wherein it was held that the
intention to cause death is not an essential requirement of clause (2), but       c
intention of causing the bodily injury coupled with the offender's
knowledge of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the ambit of this
clause of section 300. lt has also been held by this Court in the aforesaid
case that as per clause Thirdly of Section 300 of the !PC, if the act is
done with the intention of causing bodily injury which injury is sufficient       D
in ordinary course of nature to cause death and if the accused persons
have common object to cause such injury, then also it will fall under
Section 300 oflPC. Thus, intention to cause death is nothing decisive,
but, as per clause Thirdly of Section 300 of the !PC, ifthe accused were
having common object of causing only bodily injury, which were found              E
sufficient in the ordinary course of nature, to cause death, such killing
will fall within the ambit of this clause Third of Section 300 of !PC.
Thus, looking to the deposition of the prosecution witnesses, the offence
of murder of Rajubhai Ramubhai Vasava has been proved beyond
reasonable doubt against the accused.
                                                                                  F
       IS. Learned counsel for the appellants has tried to assail the
findings of the Courts below on more than one grounds. It has been
contended that except Accused No. I, the involvement of other accused
persons, even on looking to the injuries caused to the deceased and the
complainant, does not seem to be probable and the prosecution has roped
in accused persons as many as possible in the commission of the offence.          G
In support of this contention, the counsel for the appellants has sought to
rely upon the following decisions of this Court:
      State of Maharashtra Vs. Kushi Rao & Ors., (2003) IO SCC
434; Akbar Sheikh & Ors. Vs. State of West Bengal, (2009) 7 SCC
415; Raclwmretldi Cliee11a Reddy Vs. State ofA.P., (1999) 3 SCC97;                H
430            SUPREME COURT REPORTS                          [2016) 5 S.C.R.



A     Fatta & Ors. Vs. State of U.P., (1980) Supp SCC 159; and Zalwor &
      Ors. Vs. State of U.P., (1991) Supp(l) SCC 372.
            All these decisions are to the-effect that mere presence in an
      unlawful assembly without sharing the common object of the same, will
      not render a person liable for an offence under Section 149 of the IPC
B     and also as to what constitutes 'common object' in terms of Section 149
      IPC.
             16. Per contra, the learned counsel for the State has submitted
      that every member of the unlawful assembly who had joined Accused
      No. 1 has to be punished under Section 302 read with section 149
c     ingredients whereof have been squarely met. In support of this submission,
      the learned counsel for the State has placed reliance on the judgment of
      this Court in La/ji & Ors. Vs. State of U.P., (1989) 1 SCC 437,
      particularly paragraphs 8, 9 and 10, which have been reproduced below:
            "8. Thus, whenever so many as five or more persons meet together
D           to support each other, even against opposition, in carrying out the
            common object which is likely to involve violence or to produce in
            the minds of rational and firm men any reasonable apprehension
            of violence, then even though they ultimately depart without doing
            anything whatever towards carrying out their common object, the
            mere fact of their having thus met will constitute an offence ....
E
            9. Once the case ofa person falls within the ingredients of the
            section the question that he did nothing with his own hands would
            be immaterial. He cannot put forward the defence that he did not
            with his own hands commit the offence committed in prosecution
            of the common object of the unlawful assembly or such as the
 F          members of the assembly knew to be likely to be committed in
            prosecution of that object. Everyone must be taken to have intended
            the probable and natural results of the combination of the acts in
            which he joined. It is not necessary that all the persons forming
            an unlawful assembly must do some overt act. When the accused
G           persons assembled together, armed with lathis, and were parties
            to the assault on the complainant party, the prosecution is not
            obliged to prove which specific overt act was done by which of
            the accused. This section makes a member of the unlawful
            assembly responsible as a principal for the acts of each, and all,
            merely because he is a member of an unlawful assembly: While
H           overt act and active participation may indicate common intention
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                               431
    STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.]

      of the person perpetrating the crime, the mere presence in the          A
      unlawful assembly may fasten vicariously criminal liability
      under section 149. It must be noted thatthe basis of the constructive
      guilt under section 149 is mere membership of the unlawful
      assembly, with the requisite common object o~ knowledge.
                                                        ' persons formed
      I 0. Thus, once the Court hold that certain accused                      B
      in unlawful assembly and an offerice is committed by any member
      of that assembly in prosecution of the common object of that
      assembly, or such as the members of the assembly knew to be
      likely to be committed in prosecution of that object, every person
      who at the time of committing of that offence was a member of
      the same assembly is to be held guilty of that offence. After such
                                                                               c
      a finding it would not be open to the Court to see as to who actually
      did the offensive act. or require the prosecution to prove which of
      the members did which of the offensive acts. The prosecution
      would have no obligation to prove it."
      17. In this.regard, the observations made by the High Court in the       D
present case on this point are worth reproducing:
       "It is vehemently contended by learned counsel for the appellants
       that accused Nos.2 to 7 were not sharing common object, which
      ·is described under Section 141 of the Indian Penal Code and they
       ought not to have been punished for an offence punishable under         E
       Sections 143 and 147, 302 read with Section 149 of the Indian
       Penal Code. This contention is not accepted by this Court mainly
       for the reasons that
      (a) Looking to the evidence, it appears that initially there was hot
      altercation between the deceased and P. W.Nos. I, 2 and 3 with           F
      accused No. I at lari of accused No. I for payment of four plates
      ofbiriyani. Accused No. I pointed a knife to the deceased.
      (b) Accused No. I thereafter had gone and called his brothers
      and friends:
                                                                               G
      (c) They all came in two rickshaws with knives and sticks.
      (d) Thus, all the accused were going for a particular purpose,
      they were going with knives and sticks, their object was common.
       (e) The common object is also revealed by their assault. No
     · sooner did, they saw the deceased, P. W.Nos. I, 2 and 3, they           H
432        ."· · SUPREME COURT REPORTS                         [2016] 5 S.C.R.



A           alighted from.the rickshaws, assaulted them with knives and sticks.
            (f) Rajubhai Vasava sustained three stab injuries, as per medical
            evidence and postmortem note, which corroborate the evidence
            given by injured eye-witness P. W.No.1 and evidence given by
            other eye-witnesses P.W.no.2 and 3.
B        • (g) P. W.No. I has also sustained two injuries by sticks, who is
           examined by Doctor i.e. P. W.No.12, who has stated that P. W.No. l
           was brought with police yadi (Exh- 62), who has examined
           P.W.No. l an<l issued Injury Certificate at Exh-63. Looking to his
           deposition and cross-examination, injuries by sticks were fresh.
c          Thus, both knives as well as sticks were used."
           18. In Gangad/1ar Be/1era and Ors. Vs. State of Orissa, (2002)
      8 SCC 381, this Court has held:
            "Even if the 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 offence was such as the members knew
            was likely to be committed and this is what 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
E           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 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
 F          result therefrom. Though no hard and fast rule can be laid down
            under the circumstances from which the common object can be
            called out, it may reasonably be collected from the nature of the
            assembly, arms it carries and behaviour at or before or after the
            scene of incident."
 G            19. Further, once it is established that the unlawful assembly had
      a common object, it is not necessary that all the persons forming the
      unlawful assembly must be shown to have committed some overt act.
      For the purpose of incurring vicarious liability under the provision, the
      liability of other members of the unlawful assembly· for the offence
      committed during the continuance of the occurrence, rests upon the fact
H
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                                433
    STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.]

whether the other members knew before hand that the offence actually A
committed was likely to be committed in prosecution of the common
object. [See: Daya Kislian Vs. State of Haryana, (20 I 0) 5 SCC
81; Sikandar SinKh Vs. State of Bihar, (2010) 7 SCC 477, State of.
U.P. Vs. Krishanpal & Ors., (2008) 16 SCC 73, Debaslris Daw Vs.
State ofW.B., (2010) 9 SCC 111, and Ramaclrandran & Ors Vs. State
                                                                     B
Of Kera/a, (2011) 9 SCC 257].
       20. In the light of the above discussion, we are of the opinion that
none of the cases cited above help the cause of Accused Nos. 2 to 7 to
warrant acquittal under Section 149 IPC. Thus, we find no reason to
differ with the findings of the High Court on this point and we do not
accept the contention of the learned counsel for the appellants that a
case under Section 149 is not made out against Accused Nos. 2 to 7.
       21. The contention of the counsel for the appellants that there
was no reason for Accused No.I to commit assault on the deceased, is
liable to be dismissed as unsustainable in view of the evidence of the
eye-witnesses, namely, PW!, PW2 and PW3.                                        D

       22. It is settled legal position that e~'Cn ifthe absence of motive,
as alleged, is accepted, that is of no consequence and pales into
insignificance when direct evidence establishes the crime. Therefore, in
case there is direct trustworthy evidence of witnesses as to commission
of an offence, the motive part loses its significance. Therefore, if the        E
genesis of the motive of the occurrence is not proved, the ocular testimony
of the witnesses as to the occurrence cannot be discarded only      on  the
ground of absence of motive, if otherwise the evidence is worthy of
relian_ce. fSee: Hari Sltankar Vs. S~ateof U.P.,(1996) 9 SCC 40; Bikau
Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; Abu Tlrakir &              F
Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91; State of U.P. Vs.
Kisltanpal & Ors., (2008) 16 SCC 73; and Bipin Kumar Monda/ Vs.
State of West Bengal, (2010) 12 SCC 91].                     •
       23. It has also been contended by the counsel for the appellants
that the evidence is silent and vague as to who inflicted the stick injuries    G
upon PW!. Moreover, the injuries were only on the back and thigh of
PWI while there was no evidence of any injury upon PW2 and PW 3. It
was further submitted that though appellant Nos.2 and 3 were armed
with knives, the evidence on record shows that appellant Nos.2 and 3
did not inflict any injury upon anyone with their knives. Further, since the
original quarrel did not involve appellant Nos. 2 to 7 and the same was         H
434             SUPREME COURT REPORTS                              [2016] 5 S.C.R.


A     confined to the deceased and the prosecution witnesses on one side and
      Appellant No. 1 on the other, Appellants nos. 2 to 7 did not have any
      motive/intention to murder the deceased.
            24. These contentions made by the learned counsel for the
      appellants are not liable to be accepted in light of the observations of this
B     Court in Mflsfllti Vs. Stflte of U.P., AIR 1965 SC 202= 1964(8) SCR
      133, wherein it was held:        ...
              "Where a crowd of assailants who are members of an unlawful
              assembly proceeds to commit an offence of murder in pursuance
              of the commori object of the unlawful assembly, 1t is often not
c             possible for witnesses to describe accurately the part played by
              each one of the assailants. Besides, if a large crowd of persons
              armed with weapons assaults the intended victims, it may not be
              necessary that all of them have to take part in the actual assault.
              In the present case, for instance, several weapons were carried
              by different members of the unlawful assembly, but it appears
D             that the guns were used and that was enough to kill 5 persons. In
              such a case, it would be unreasonable to contend that because
              the other weapons carried by the members of the unlawful
              assembly were not used, the story in regard to the said weapons
              itself should be rejected. Appreciation of evidence in such a
E          .• complex case is no doubt a difficult task; but criminal courts have
              to do their best in dealing with such cases and it is their duty to sift
              the evidence carefully and decide which part of it is true and
              which is not."
             25. It has been next contended by the learned counsel for the
F     appellants, as an alternative submission, that Accused Nos.2 to 7 are
      liable to be sentenced under Section 304 (Part-II) of the IPC since they
      did not have any intention of committing the murder of the deceased.
      We are not inclined to agree with the learned counsel for the appellants
      in the light of the findings of fact recorded by the High Court as well as
      the judgment of this Court in Sf(lfe of U.P. Vs. Vtremlr" Pflls{I(/ (supra).
G
             26. Moreover, the locus classicus on the interpretation of Sections
      299 and 300 of the !PC is the often quoted decision of this Court in Vtrs"
      Si11glt Vs. St"te ofPu1tj(lb, AIR 1958 SC465 = 1958 SCR 1495, where
      Vivian Bose, J. speaking for the Court, explained the ingredients that
      must be satisfied for a culpable homicide to amount to murder. Dealing
H
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                                 435
    STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.]

with clause 'Thirdly' under Section 300 of the IPC, the Court explained         A
the essentials of that clause in the following words:
      "12. To put it shortly, the prosecution must prove the following
      facts before it can bring a case under Section 300 'thirdly';
      First, it must establish, quite objectively, that a bodily injury is
      present.                                                                  B

      Secondly, the nature of the injury must be proved; These are
      purely objective investigations.
      Thirdly, it must be proved that there was an intention to inflict
      that particular bodily injury, that is to say, that it was not             c
      accidental or unintentional, or that some other kind of injury was
      intended.
      Once these three elements are proved to be present, the
      enquiry proceeds further and, Fourthly, it must be proved that
      the injury of the type just described made up of the three                 D
      elements set out above is sufficient to cause death in the
      ordinary course of nature. This part of the enquiry is purely
      objective and inferential and has nothing to do with the intention
      of the offender."
       27. This Court then went on to explain the third ingredient referred
                                                                                 E
to the above passage and made the following observations:
      "The question is not whether the prisoner intended to inflict a
      serious injury or a trivial one but whether he intended to inflict the
      injury that is proved to be present. If he can show that he did not,
      or ifthe totality of the circumstances justify such an inference,
                                                                                 F
      then, of course, the intent that the section requires is not proved.
      But if there is nothing beyond the injury and the fact that the
      appellant inflicted it, the only possible inference is that he intended
      to inflict it. Whether he knew of its seriousness, or intended serious
      consequences, is neither here nor there. The question, so far as
      the intention is concerned, is not whether he intended to kill, or to      G
      inflict an injury of a particular degree of seriousness, but whether
      he intended to inflict the injury in question; and once the existence
      of the injury is proved the intention to cause it will be presumed
      unless the evidence or the circumstances warrant an opposite
      conclusion."                                                   ·
                                                                                 H
436             SUPREME COURT REPORTS                             [2016] 5 S.C.R.



A            28. Applying the above tests to the case at hand, we have no
      difficulty in holding that, keeping in view the nature of the injury, the vital
      part of the body on which the same was inflicted and the weapon used
      by the Accused No. I, and the medical evidence, the said injury was
      sufficient in the ordinary course to cause death.
B            29. Finally, it has been argued by the counsel for the appellants
      that there was no prior enmity between Accused No. I and the deceased
      and the prosecution witnesses and that he committed the crime in the
      heat of passion upon a sudden quarrel and therefore, his case, is covered
      under Exception 4 of Section 300 IPC and therefore, he may at best be
      convicted under Section 304 Part II of the !PC.
c
             30. On the other hand, it has been submitted by the counsel for
      the State that the incident did not happen in the middle of any heated
      exchange between parties but as a result of a cold blooded plan to murder
      the deceased. Had the incident occurred in the heat of the moment
      during violent altercations, then it would have happened in Accused No. I 's
D     Biriyani stall. The very fact that Accused No. I had arrived at the scene
      of the crime with nine armed men in two auto rickshaws goes to show
      that he had the fullest intent to commit the murder of the deceased
      Rajubhai. Thus, Accused No. I was liable to be punished only under
      Section 302 of IPC and not under Part I or Part II of Section 304, he
E     urged.
            31. The law relating to appropriate invocation of Exception 4 to
      Section 300 of the !PC, has been laid down by this Court in Suri11der
      Kumar Vs. Union Territory, Clzamligar/1, ( 1989) 2 SCC 21 7, in the
      following words:
 F           "To invoke this Exception four requirements must be satisfied,
             namely, (i) it was a sudden fight; (ii) there was no premeditation;
             (iii) the act was done in a heat of passion; and (iv) the assailant
             had not taken any undue advantage or acted in a cruel manner.
             The cause of the quarrel is not relevant nor is it relevant who
G            offered the provocation or started the assault. The number of
             wounds caused during the occurrence is not a decisive factor but
             what is important is that the occurrence must have been sudden
             and unpremeditated and the offender must have acted in a fit of
             anger. Of course, the offender must not have taken any undue
             advantage or acted in a cruel manner. Where, on a sudden quarrel,
 H           a person in the heat of the moment picks up a weapon which is
   SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v.                                 437
    STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.]

      handy and causes injuries, one of which proves fatal, he would be         A
      entitled to the benefit of this Exception provided he has not acted
      cruelly."
        32. Applying these tests to the case at hand, we find that they do
not help the cause of Accused No. I. In the present case, Accused No. I
had arrived at the scene of occurrence with nine armed men out of                B
which three were equipped with knives and the rest were equipped with
sticks. Sufficient amount of time had elapsed between the initial altercation
at the restaurant of Accused No.1 and the subsequent arrival of the
accused persons at the spot of the crime. Moreover, it was also established
from the evidence on record that Accused No. I had inflicted knife injury
of such a nature, upon the unarmed deceased, that was sufficient in the
                                                                                 c
ordinary course of nature to cause death. Hence, we are not inclined.to
grant the benefit of this Exception clause to Accused No.1 in the present
case.
       33. Thus, in the light of the above discussion, we are of the view
that the present appeals are devoid of merits, and we find no ground to          D
interfere with the judgment passed by the High Court. The appeals are,
accordingly, dismissed.
Devika Gujral                                              Appeals dismissed.