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PETITIONER: RAMU GOPE AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 29/10/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1969 AIR  689            1969 SCR  (2) 558

ACT:     Indian  Penal  Code, 1860, ss. 149,  302--Conviction  by trial Court of H as one member of unlawful assembly under s. 302  for causing death  of a  person in pursuance of  common object  and  of others under s. 302 read with  s.  149--High Court  acquitting H in appeal but confirming  conviction  of others--If conviction sustainable.

HEADNOTE:     The  appellants and one H were tried on the charge  that on July 2, 1962 they had formed an unlawful assembly and  in prosecution  of the common object of  the unlawful  assembly i.e.,  to rescue  their  cattle which had damaged the  maize crop  of one B and had on that account beer detained by  the villagers,  made an assault on persons resisting the  rescue causing injuries to various persons including B as a  result of  which B died.  The Trial Court, relying on the  evidence of certain witnesses, held that H had caused injuries with a spear  to  B  which  resulted in  her  death.  It  therefore convicted  H  of  an offence under s.  302  I.P.C.  and  the appellants  for  an offence under s. 302 read  with  s.  149 I.P.C. The High Court appeal acquitted H as it entertained a doubt  about   his presence in the  unlawful  assembly,  but confirmed the conviction of the other appellants.     In  appeal to this Court it was contended on  behalf  of the  appellants  that  because of the acquittal  of  H,  the conviction  of the other appellants for an offence under  s. 302 read with s. 149 I.P.C. could not, in law, be sustained; when according to the prosecution case H was responsible for causing the: death of B and he was acquitted, the appellants who  were  charged  with sharing the common  object  of  the unlawful assembly could not be   convicted for the vicarious liability   arising   out  of  the  offence   committed   in prosecution of the common object of the unlawful assembly. HELD:  Dismissing the appeal:     The  order  of  conviction of  the  appellants  for  the offence    under  s.  302 read with s. 149  I.P.C.  was  not rendered  illegal  because  H was held not to  have  been  a member of the unlawful assembly. [56.2 B]     There  was clear evidence to show that B was one of  the persons upon whom an attack was made and injuries  inflicted

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by the unlawful assembly of which the appellants and  others were   members.   On  the findings of the  High  Court,  the offender  who  actually caused injuries to B  could  not  be ascertained: it follows that the injuries were, caused to  B by some members of the unlawful assembly. [561 H]     Failure  to prove the presence  of the   named  offender among  the members of the unlawful assembly will not  affect the criminality of those who are proved to be members of the assembly if the other conditions of the applicability of  s. 149 I.P.C. be established. [56.1 A]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION:  Criminal  Appeal  No. 145  of 1966. 559     Appeal  by  special leave from the  judgment  and  order dated January 29, 1966  of the Patna High Court in  Criminal Appeal No. 231  of 1963. D. Goburdhun, for the appellants. B.P. Jha, for the respondent. The Judgment of the Court was delivered by Shah,  J. At mid-day on July 2, 1962, an  unlawful  assembly about  30 persons armed with lethal weapons made an  assault upon  certain villagers of Mananki Khandha who were  engaged in  agricultural  operations  and  caused  injuries  to  six persons.  Budhia one of the persons injured died as a result of  the injuries, a few hours after the assault.  The  seven appellants  in this appeal and one Harihar Gope  were  tried before  the Additional Sessions Judge, Patna,  for  offences under s. 302 read with ss. 149, 147, 148, 323, 324, 325 read with  34  and  326 I.P. Code, on the charge  that  they  had formed an unlawful assembly and had committed rioting and in prosecution  of the common object of the unlawful  assembly, viz. to rescue their cattle which had damaged the maize crop of  Budhia  and  had on that account been  detained  by  the villagers, and to assault persons resisting the rescue,  and had  caused  injuries to the victims as a  result  of  which Budhia  died.   The  Sessions Judge  held,  relying  on  the evidence  of  four  witnesses P.Ws. 5, 8, 12  and  18,  that Harihar  Gope  had caused injuries with a  spear  to  Budhia which  resulted  in her death.  He accordingly  recorded  an order  of  conviction against Harihar Gope  of  the  offence under s. 302 I.P. Code and against the other appellants  for the offence under s. 302 read with s. 149 I.P. Code.     The High Court of Patna in appeal acquitted Harihar Gope for the offence under s. 302 I.P. Code for they  entertained doubt about Harihar Gope’s presence in the unlawful assembly in question.  The High Court observed that Harihar Gope  was a resident of another village and had no reason to bring his cattle  to  the village .Mananki Khandha for  grazing,.  and that the name of Harihar Gope was not mentioned in the first information  which  was given at the police station  in  the presence of the witnesses who deposed to the assault made on Budhia by Harihar Gope.  The State has not appealed  against that order of acquittal.     The High Court has however, confirmed the conviction  of the other appellants for the offence under s. 302 read  with s. 149 I.P. Code.     In this Court, counsel for the appellants contends  that because  of the order of acquittal passed by the High  Court in   favour  of  Harihar  Gope,  conviction  of  the   other appellants  for  the offence under s. 302 read with  s.  149 I.P. Code cannot, in law, be sus-

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560 tamed.   Counsel  argues  that  if  Harihar  Gope  who   was according  to  the case of the prosecution  responsible  for causing the death of Budhia is acquitted the appellants  who were charged with sharing the common object of the  unlawful assembly  cannot  be convicted for the  vicarious  liability arising out of the offence committed in prosecution  of  the common  object  of  the  unlawful  assembly.  There  is   no substance  in that argument.  The case for  the  prosecution when analysed consists of four parts--(1) that there was  an unlawful  assembly of 30 persons the common object of  which was  to forcibly rescue cattle detained by the villagers  of Mananki Khandha and to beat up all those who resisted;   (2) that six villagers of Mananki Khandha were beaten up by  the members  of  the  unlawful  assembly  and  Budhia  died   in consequence  of the injuries suffered by her; (3)  that  the injuries  were caused to the six victims by the  members  of the unlawful assembly in prosecution of the common object of the  unlawful  assembly or the injuries were such  that  the members of the assembly knew to be likely to he caused;  (4) that Harihar Gope was a member of the unlawful assembly, and he  caused injuries to Budhia in prosecution of  the  common object of the assembly in consequence of which she died. The result  of the findings of the High Court is that the  first three parts are made out but not the last.  On that  account however  we are unable to hold that the appellants  who  are proved  to  be  members  of  the  unlawful  assembly  escape liability for conviction under s. 302 read with s. 149  I.P. Code.   On  the  finding  recorded  by  the  High  Court  it inevitably follows that fatal injuries were caused to Budhia by  a member of the unlawful assembly which the  members  of the  assembly knew to be likely to be caused in  prosecution of the common object of the  unlawful  assembly. The  State, however,  failed to establish that it was Harihar  Gope  who caused  those injuries.  Failure to establish that a  member or members of the unlawful assembly named by .the  witnesses for the State cause the particular injury which resulted  in the death of Budhia will not result in the rejection of  the case  of the State against persons proved to be  members  of the unlawful assembly, if the common object of the  unlawful assembly   and  the  commission  of  the  offence   in   the prosecution  of the common object or which the members  knew to be likely to be committed be proved.     Where  a member of an unlawful assembly is named  as  an offender who committed an. offence for which the members  of the unlawful assembly are liable under s. 149 I.P. Code, and the evidence at the trial is insufficient to establish  that the named person committed the act attributed to him, he may still  be convicted of the offence if it is proved  that  he was  a member of the unlawful assembly and that the act  was done by some  member  of  the assembly in prosecution of the common  object  or which the members knew was likely  to  be committed in prosecution of that 561 object.  In our judgment, failure to prove the  presence  of the  named  offender  among  the  members  of  the  unlawful assembly  will not affect the criminality of those  who  are proved to be members of the assembly if the other conditions of the applicability of s. 149 I.P. Code be established.  If the  Court refuses to accept the testimony of witnesses  who speak  to  the  presence  of and  part  played  by  a  named offender,  the  weight to be attached to  the  testimony  of those   witnesses  insofar  as  they  involve   others   may undoubtedly be affected, but it cannot be said that  because the testimony of witnesses who depose to. the assault by the

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named  offender is not accepted, other members proved to  be members  of the unlawful assembly escape  liability  arising from  the  commission of  the offence in prosecution of  the common object of the assembly.      The  High Court found that on the day in question  more than  30  persons formed an unlawful  assembly,  the  common object  of  which  was  to rescue  cattle  detained  by  the villagers  of  Mananki  Khandha,  and  to  kill  those   who resisted,   and  that  members  of  the  unlawful   assembly committed ’an assault  on the  villagers  and severely  beat up  the  villagers including Budhia in  prosecution  of  the common object.  The offence being such that it was known  to be likely to be committed, every person who was a member  of that  unlawful  assembly at the time of the  commission   of the offence would by virtue of s. 149 I.P. Code be guilty of the offence committed.  The argument that Harihar Gope alone had the object of causing the death of Budhia cannot on  the evidence be accepted as correct.  The object to beat up  and kill  those who resisted the rescue of the  cattle  detained was according to the case for the prosecution common to  all members  of  the  unlawful assembly,  and  that  object  was established by abundant evidence. Proof of the common object of  the unlawful assembly did not depend upon  the  presence therein of Harihar Gope.  Failure to establish that  Harihar Gope  was a member of the unlawful assembly did not, in  our judgment,  affect the liability of the persons proved to  be members  of  the  unlawful assembly for  the  acts  done  in prosecution  of its common object, or which they knew to  be likely to be committed in prosecution of the object thereof. When  a  concerted attack is made on the victim by  a  large number  of  persons it is often difficult to  determine  the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common  object, persons proved to be members  cannot  escape the  consequences arising from the doing of that  act  which amounts to an offence.      There  is  clear evidence on the record  to  show  that Budhia was one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and  others were members. 562 In the assault made by the members of the assembly Budhia as well as other persons were injured.  On the findings of  the High  Court,  the offender who actually caused  injuries  to Budhia  cannot be ascertained: it follows that the  injuries were  caused  to  Budhia  by some  member  of  the  unlawful assembly,  and that Budhia succumbed to those  injuries.  In our  judgment,  the order of conviction of  the  appellants, other  than Harihar Gope, for the offence under s. 302  read with  s.  149  I.P. Code is not  rendered  illegal,  because Harihar  Gope  is  held not to have been  a  member  of  the unlawful assembly.       The appeal fails and is dismissed. R.K.P.S.                                   Appeal dismissed. 563