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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: MATHU PANDEY & ORS.

DATE OF JUDGMENT: 23/04/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1970 AIR   27            1970 SCR  (1) 358  1969 SCC  (2) 207  CITATOR INFO :  R          1971 SC1834  (4)

ACT: Indian  Penal  Code, 1860, s. 302 read with s. 149  and  Ss. 103, 99-Party of accused persons preventing theft from  land by  another group-Causing death of two persons in  attacking party-If  unlawful assembly and committed offence  under  s. 3O2  read with s. 149-Whether entitled to exercise right  of private defence under s. 103 and causing death.

HEADNOTE: In   proceedings   against  the  accused   respondents   the prosecution case was that on certain land belonging to one B where   some   of  his  men  were  gathering   fruits,   the respondents,  armed  with bhallas,  lathis,  etc.,  attacked these  men  killing two of them and  injuring  others.   The trial court convicted the respondents under s. 302 read with s. 149 I.P.C. of the murder of the two deceased persons  and of  offences for inflicting injuries on other persons.   The respondents’  appeal to the High Court was allowed and  that Court set aside all the convictions and sentences.  The High Court found that the land in question was in the  possession of  one  of  the  respondents  and  that  on  the  date   of occurrence,  the members of the prosecution party  including the murdered victims committed thefts of fruits on the  land and that the respondents had the right of private defence of property  against  the theft; the theft of  the  fruits  was committed under such circumstances as might reasonably cause apprehension that death or grievous bodily hurt would be the consequence  if  the  right  of  private  defence  was   not exercised.   Accordingly, the respondents’ right of  private defence  of  property  extended  under  s.  103  I.P.C.   to voluntarily  causing  death  of  the  two  murdered  victims subject to the restrictions mentioned in s. 99. In  appeal  to  this  Court against  the  acquittal  of  the respondents,  it was contended that they were members of  an unlawful assembly prosecuting the common object of  forcibly preventing the two deceased from collecting ’fruit from  the land  in question and if necessary in causing the murder  of the  said  two persons for the purpose; that  some  of  them

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caused the murder of the two victims and that thereby all of them committed offences under s. 302 read with s. 149. HELD  : The respondents could not be convicted under s.  302 read with s.   149  I.P.C., nor was it possible  to  convict them under s. 302 read with s. 34. In order to attract the provisions of s. 149 the prosecution must establish that there was an unlawful assembly and  that the crime was committed in prosecution of the common  object of  the  assembly.   Under the fourth clause of  s.  141  an assembly of five or more persons is an unlawful assembly  if the common object of its members is to enforce any right  or supposed  right  by  means  of criminal  force  or  show  of criminal force to any person.  Section 141 must be read with Ss.  96  to 106 dealing with the right of  private  defence. Under  s.  96  nothing is an offence which is  done  in  the exercise of the right of private defence.  The assertion  of a  right of private defence within the limits prescribed  by law cannot fall within the expression "to enforce any  right or supposed right" in the fourth clause of s. 141. [362-C]                             359 As  it had been found ’in the present case that the land  in question  was in the possession of one of  the  respondents, the  object  of the respondents’ party was  to  prevent  the commission of theft of the fruits in exercise of their right of  private  defence of property.  This object was  not  un- lawful.  Nor was it possible to say that their common object was to kill the two deceased victims.  Those who killed them exceeded   the   right  of  private  defence  and   may   be individually  held  responsible for the  murders.   But  the murders  were  not committed in prosecution  of  the  common object  of the assembly or were such as the members  of  the assembly knew to be likely to be committed in prosecution of the  common  object.  The accused respondents could  not  be made constructively responsible for the murders under s. 302 read with s. 149. [363-B] Kapildeo  Singh v. The King, [1949-50] F.C.R.  834;  Kishori Prsad  & Ors. v. State of Bihar Cr.  Appeal No. 191 of  1966 decd.  on  5-12-1968;  and. Gurudittamal v.  State  of  U.P. A.I.R. 1965 S.C. 257; referred.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 203  of 1966. Appeal  by special leave from the judgment and  order  dated April 5, 1966 of the Patna High Court in Criminal Appeal No. 602 of 1963. D. P. Singh, for the appellant. Nur-ud-din Ahmed and D. Goburdhun, for the respondents. The Judgment of the Court was delivered by Bachawat,  J. The prosecution case was that  Bhaiya  Ramanuj Pratap Deo was the proprietor of village Phatpani and  owned and possessed bakasht and gairmazura lands therein including plot  no.  1311 and the mahua trees  standing  thereon.   On April  10,  1962 at 3 p.m. his employee  PW  33  Bindeshwari Singh  was in charge of collection of mahua fruits  in  plot no. 1311 and the victims Ram Swarup Singh and Ramdhari Singh were  supervising  the collection.  PW 1 Dhaneshwari,  PW  2 Deokalia,  PW 3 Dewal, PW 4 Rajmatia, PW 6 Udal Singh, PW  7 Border Singh, PW 8 Meghan Chamar, PW 9 Ram Dihal Kharwar, PW 10  Ram  Torai Kharwar, PW 11 Manan Singh and PW  13  Jhagar Kharwar  were collecting mahua fruits when suddenly  accused Mathua  Pandey, Kundal Pandey and Muneshwardhar Dubey  armed with garassas, Chandradeo Pandey, Dayanand Pandey and  Nasir

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Mian  armed  with  bhalas and  Bife  Bhogta,  Thegu  Bhogta, Nageshwardhar Dubey and Uma Shankar Dubey armed with  lathis surrounded  Ramswarup and Ramdhari and assaulted  them  with their  weapons.  Dewal also was assaulted by Bife and  Thegu and  suffered  minor injuries.  Ramdhari died on  the  spot. Ramswarup  died while preparations were being made to  carry him to the hospital. Bindeshwari lodged the first information report at 8 p.m. on the  same  date.  On April 14, 1962 ’accused  Mathu  gave  a report 360 at Nagaruntari hospital.  He said that on April 10, 1962  at 3  p.m. while he was returning home, he was  assaulted  with lathis,  garassas and bhalas by the employees of the  Bhaiya Saheb. The  following injuries were found on the dead body of  Ram- swarup Singh : "(1) abrasion 1 1/2"x 1 1/4" with  ecchymosis on  anterior  aspect  of  right  knee  joint,,  (2)  another abrasion 1/2" x 1/4 " with ecchymosis on anterior aspect  of right leg, (3) a small abrasion with ecchymosis on  anterior aspect  of left knee joint, (4) an incised wound 4" x  1"  x scalp on anterior aspect of the left side of the head, (5) a lacerated wound 31" X 1/3" X scalp with ecchymosis on  right side  of  head and’ (6) a penetrating wound with  clean  cut margins  2 1/2" X 1" X abdominal cavity placed  transversely on  right hypochondrium just right to mid line with  stomach and  loop of large bowel bulging out of it." On opening  the abdominal  wall  it was found that the peritoneum  was  con- gested and the stomach was perforated on its anterior  wall. Injuries  1,  2,  3  and 5 were caused  by  hard  and  blunt substance  such as lathi.  Injury no. 4 was caused by  sharp cutting  weapon  such  as  garassa.  Injury  no.  6  on  the abdominal  cavity  was caused by some sharp  pointed  weapon with sharp cutting margin such as bhala.  The death was  due to  shock and internal haemorrhage caused by  the  abdominal wounds. The  following  injuries  were found on  the  dead  body  of Ramdhari  Singh : "(1) the helix of left ear was cut; (2)  a lacerated wound 1/2" x 1/10" x 1/10" with ecchymosis on  the outer part of the left eye brow, (3) a punctured wound  with clean  cut margins 2 1/2"X I" X 1 1/2" on left  thigh  below its middle, (4) a punctured wound with clean cut margin 1" X 1/4"  X  1"  on posterior aspect of the left  thigh  in  its middle, and (5) a penetrating wound with clean cut margins 2 1/4" x 3/4" x abdominal cavity on right side of the abdomen. The  loops of intestines were bulging out of  this  opening. Injury no. 2 was caused by hard and blunt substance such  as lathi.   The other injuries were caused by a  sharp  pointed weapon with sharp cutting edge such as bhala.  Death was due to shock and internal haemorrhage caused by injury no. 5 the abdominal wound. The  trial  court convicted the  accused-respondents  Mathu, Chandradeo,  Kundal, Dayanand, Bife, Thegu,  Nasir,  Munesh- wardhar,  Nageshwardhar,  Umashankardhar under S.  302  read with s. 149 of the Indian Penal Code for the murders of Ram- dhari and Ramswarup and sentenced them to rigorous imprison- ment for life each.  Bife, Thegu, Nageshwardhar and Umashan- kardhar were convicted under s. 147 of the Indian Penal Code and sentenced to rigorous imprisonment for six months  each. The remaining respondents were convicted under S. 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year                             361 each.   Bife  and Thegu were convicted under s. 323  of  the Indian Penal Code for causing hurt to Dewal and sentenced to

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rigorous imprisonment for six months each.  The sentences of each  respondent were to run concurrently.  The trial  court held  that  (1) Bhaiya Saheb was in possession of  plot  no. 1311; (2) while Ramswarup and Ramdhari were collecting mahua on the plot, the respondents armed with bhalas, garassas and lathis  inflicted  fatal  injuries on them with  a  view  to forcibly  prevent them from collecting the mahua, (3)  Thegu and  Bife  assaulted  Dewal with  lathis,  (4)  the  accused persons  knew  that there was likelihood  of  murders  being committed  in prosecution of the common object, and (5)  the assailants inflicted the injuries on Ramswarup and  Ramdhari with the intention of murdering them. The respondents filed an appeal in the High Court of  Patna. The  High  Court allowed the appeal and set  aside  all  the convictions  and sentences.  The High Court, found that  (1) respondent Chandradeo was the thikadar of plot no. 1311  and was  in possession of the mahua trees standing thereon,  (2) on  the  date  of  the  occurrence,,  the  members  of   the prosecution party including Ramdhari and Ramswarup committed theft on the fruits of the mahua trees, and the  respondents had  the  right of private defence of property  against  the theft; (3) Ramswarup carrying a tangi and Ramdhari  carrying a  danta caused severe injuries to respondent Mathu  on  his head,  leg, and that while doing so they were not  defending themselves;   Mathu   became   unconscious.    He   regained consciousness  on  April 14, 1962. (4) the  theft  of  mahua fruits  was  committed  under such  circumstances  as  might reasonably  cause apprehension that death or  grievous  hurt would be the consequence if the right of private defence was not  exercised.   Accordingly,  the  respondents’  right  of private  defence  of property extended under s. 103  of  the Indian  Penal Code to voluntarily causing death to  Ramdhari and  Ramswarup subject to the restrictions mentioned  in  s. 99;  (5)  the person or persons who caused  the  two  deaths exceeded the right of private defence as they inflicted more harm  than was necessary for the purpose of defence.   These findings are based on adequate evidence and are not shown to be  perverse.   In  this  appeal  under  art.  136  of   the Constitution  from an order of acquittal passed by the  High Court,  we  are  not inclined to interfere  with  the  above findings.   The question is whether in  these  circumstances the High Court rightly acquitted the appellants., The  fatal wounds on the abdominal cavities of Ramdhari  and Ramswarup  were caused by bhalas.  The prosecution case  was that Chandradeo, Dayanand and Nasir were armed with bhalas. The  High Court rightly held that the prosecution failed  to established  that  Chandradeo was armed with a  bhala.   The prosecution   witnesses   said  generally   that   all   the respondents surrounded Ram- 362 dhari  and Ramswarup and. assaulted them.   The  prosecution case has been found to be false in material respects.  It is not possible to record the finding that Chandradeo, Dayanand and  Nasir were armed with bhalas.  Some of the  respondents were  armed with bhalas but it is not possible to say  which of them were so armed and which of them inflicted the  fatal wounds  on  Ramdhari and Ramswarup.  Accordingly  we  cannot convict  any  of  the respondents under s.  302.   The  only question is whether they can be convicted under s. 302  read with either s. 149 or s. 34. In order to attract the provisions of s. 149 the prosecution must establish that there was an unlawful assembly and  that the crime was committed in prosecution of the common  object of  the  -assembly.  Under the fourth clause of  s.  141  an assembly of five or more persons is an unlawful assembly  if

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the common object of its members is to enforce any right  or supposed  right  by  means  of criminal  force  or  show  of criminal force to any Person.  Section 141 must be read with ss.  96  to 106 dealing with the right of  private  defence. Under  s.  96  nothing is an offence which is  done  in  the exercise of the right of private defence.  The assertion  of a  right of private defence within the limits prescribed  by law cannot fall within the expression "to enforce any  right or  supposed  right"  in the fourth clause of  s.  141.   In Kapildeo  Singh v. The King(1) the High Court  had  affirmed the appellant’s conviction and sentence under s. 147 and  s. 304 read with s. 149, without considering the question as to who  was actually in possession of the plot at the  time  of the  occurrence.  The High Court observed that the  question of  possession was immaterial and that the appellants  party were  members of an unlawful assembly, "as both  sides  were determined to vindicate their rights by show of force or use of  force." The Federal Court set aside the  conviction  and sentence.  It held that the High Court judge stated the  law too loosely "if by the use of the word ’vindicate’ he  meant to include even cases in which a party is forced to maintain or defend his rights".  The assembly could not be designated as an unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law. The  charges  against the respondents were that  they  "were members of an unlawful assembly in prosecution of the common object of which, viz., in forcibly preventing Ramdhari Singh and  Ramswarup  Singh from collecting  mahua  from  Barmania field  of village Phatnapi and if necessary in  causing  the murder of the said two persons, for the purpose, "that  some of  them  caused the murders of Ramdhari and  Ramswarup  and that  thereby  all of them committed offences under  s.  302 read with s. 149.  We have found that respondent  Chandradeo was in possession of plot (1)  [1949-50] F.C.R. 834.                             363 no.  1311 and the mahua trees standing thereon.  The  object of  the respondent’s party was to prevent the commission  of theft  of  the  mhua fruits in exercise of  their  right  of private defence of property.  This object was not  unlawful. Nor  is it possible to say that their common object  was  to kill Ramdhari and Ramswarup.  Those who killed them exceeded the  right of private defence and may be  individually  held responsible  for  the  murders.  But the  murders  were  not committed  in  prosecution  of  the  common  object  of  the assembly or were such as the members of the assembly knew to be  likely  to  be committed in prosecution  of  the  common object.    The   accused   respondents   cannot   be    made constructively responsible for the murders under s. 302 read with s. 149. In Kishori Prasad & Ors. v. State of Bihar(1) the High Court convicted  the  appellants under s. 326/149  of  the  Indian Penal  Code though the appellant Hirdaynarain was in  lawful possession  of  the western portion of plot no. 67  and  the attempt  by the prorecution party to cultivate the same  was high-handed.   This  Court  set  aside  the  conviction  and sentence.  Ramaswami J. observed               "In  a  case where the  accused  person  could               invoke  the  right of private  defence  it  is               manifest  that no charge of rioting  under  s.               147  or  s.  148, Indian  Penal  Code  can  be               established for the common object to commit an               offence attributed in the charge under s.  147               or s. 148, Indian Penal Code is not made  out.               If  any accused person had exceeded the  right

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             of  private  defence in causing the  death  of               Chitanu Rai or in injuring Gorakh Prasad it is               open   to   the  prosecution  to   prove   the               individual assault and the particular  accused               person  concerned  may be  convicted  for  the               individual assault either under s. 304, Indian               Penal  Code or of the lesser offence under  s.               326, Indian Penal Code.  The difficulty in the               present  case is that the High Court  has  not               analysed the evidence given by the parties and               given  a finding whether any or which  of  the               appellants are guilty of causing the death  of               Chitanu  Rai or of assaulting  Gorakh  Prasad.               As   we  have  already  said,  none   of   the               appellants  can be convicted of the charge  of               rioting  under s. 148 or of  the  constructive               offence under s. 326/149, Indian Penal Code." We accordingly hold that the respondents cannot be convicted under s. 302 read with s. 149, Indian Penal Code.  Nor is it possible to convict them under s. 302 read with s. 34.   The High  ’Court  rightly found that the respondents  wanted  to prevent the (1)  Cr. App.  No. 191 of 1966 decd. on 5-12-1968. 364 collection  of mahua fruits and that a common  intention  of all  of  them  to  murder  Ramdhri  and  Ramswarup  was  not established. The case of Gurudittamal v. State of U.P.(1) is distinguish- able.   In  that case the Court found that (1)  the  accused persons  who were in possession of a field had exceeded  the right  of  private  defence of property  by  murdering  four persons who were peacefully harvesting the crops standing on the  field  and (2) each of the four appellants  killed  one member   of   the  prosecution  party  and  each   of   them individually   committed  an  offence  under  S.  302   (see paragraph   6   and  end  of  paragraph   14).    In   these circumstances,   the  Court  upheld  their  conviction   and sentence  under  s.  302.  The Court  also  found  that  the appellants had the common intention to kill the victims  and could  be  convicted  under  s. 302 read  with  s.  34  (see paragraph  12  and  9).  In the present case,  none  of  the respondents  can  be convicted under s. 302.   As  a  common intention   to   murder  Ramdhari  or   Ramswarup   is   not established, they cannot be convicted under s. 302 read with s. 34. In the result, the appeal is dismissed. R.K.P.S.                                              Appeal dismissed. (1) A.I.R. 1965 S.C. 257.                             365