SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. versus STATE OF GUJARAT
[2016] 5 S.C.R. 421, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Ratio
[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 
[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 
- 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, 
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 
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, 
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. 
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 
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[2016] 5 S.C.R. 
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. 
s. I 49 - Invocation of- Overt act - Held: For invoking s.149, 
the liability of other members of the 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. 
Criminal law1: Motive - Conviction in the absence of proof of 
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 
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 
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 
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) 
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
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT 
before hand that the offence actually committed was likely to be 
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 
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; 
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 
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. 
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 
(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 
: (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 
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SUPREME COURT REPORTS 
[2016) 5 S.C.R. 
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 
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) 
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 
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 
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 
(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 
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 
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 
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 
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 
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. 
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 
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Kaur, Advs. for the Respondent. 
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The Judgment of the Court was delivered by 
PIN AKI 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 
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
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 I wad, for eating Biryani and after 
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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, 
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 
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 
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 
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) 
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. 
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 
143, 147, 148, 149, 302, 323 and 504 of the IPC and Sections 3(1)(10)
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT (PINAKI CHANDRA GHOSE, J.] 
and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention 
of Atrocities) 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. 
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 
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, 
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 
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, 
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. 
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 
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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: 
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I. 
"The powers of this Court under Article 136 of the 
Constitution are very wide but in criminal appeals this Court 
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. 
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 
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 
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 
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 
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
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.] 
prosecution witnesses. 
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 
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 
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 
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 
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. 
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. 
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 of A.P., (1999) 3 SCC97; 
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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 
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 
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 
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 .... 
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 
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 
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 
overt act and active participation may indicate common intention
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.] 
of the person perpetrating the crime, the mere presence in the 
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. 
' 
I 0. Thus, once the Court hold that certain accused persons formed 
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 
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 
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 
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 
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: 
(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 
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[2016] 5 S.C.R. 
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. 
• (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. 
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 
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 
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." 
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
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.] 
whether the other members knew before hand that the offence actually 
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 
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. 
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 
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 & 
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 
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that the evidence is silent and vague as to who inflicted the stick injuries 
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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 
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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 
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 
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 
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 
.• 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 
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). 
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 of Pu1tj(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
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.] 
with clause 'Thirdly' under Section 300 of the IPC, the Court explained 
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. 
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 
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 
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 
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, 
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 
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." 
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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. 
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. 
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 
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 
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 
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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, 
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a person in the heat of the moment picks up a weapon which is
SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. v. 
STATE OF GUJARAT [PINAKI CHANDRA GHOSE, J.] 
handy and causes injuries, one of which proves fatal, he would be 
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 
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 
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 
interfere with the judgment passed by the High Court. The appeals are, 
accordingly, dismissed. 
Devika Gujral 
Appeals dismissed. 
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