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PETITIONER: BHUDEO MANDAL & OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT24/03/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA ISLAM, BAHARUL (J) VARADARAJAN, A. (J)

CITATION:  1981 AIR 1219            1981 SCR  (3) 291  1981 SCC  (2) 755        1981 SCALE  (1)578

ACT:      Indian Penal  Code 1860-S.  149-Conviction under  clear finding regarding common object of assembly-Necessity of.

HEADNOTE:      When the  appellants wanted  to irrigate  the land they were prevented  from doing so by the deceased as a result of which the 1st appellant who is now dead gave a bhala blow to the deceased.  The other  appellants were  supposed to  have been armed  with lathis  but they did not cause any injuries either to the witnesses or to the deceased.      The Sessions  Judge convicted  the 1st  appellant under section 304  Part I  of the  Indian Penal Code and sentenced him  to   undergo  imprisonment   for  life  and  the  other appellants under  section 326/149  of the  Indian Penal Code and sentenced them to undergo 3 years’ rigorous imprisonment but affirmed  the acquittal  of the individual charges under sections 323  and 325 I.P.C. The High Court while convicting the appellant under sections 325/149 of the I.P.C. has given no finding  regarding the  common  object  of  the  unlawful assembly.      Accepting the appeal, the Court ^      HELD:  In  the  instant  case,  there  is  neither  any evidence nor  any finding  that any  of the  ingredients  of section 149  have been  established by the prosecution. Even on the  prosecution case itself the occurrence took place as a result  of an  irrigation dispute  and the appellants were merely acting  under a  bona fide  claim or belief that they had the  right to  irrigate the  land. There is no overt act attributed to  any  of  the  appellants  in  regard  to  the deceased and  the mere  fact that  the appellants were armed with lathis  by itself  would not prove that they shared the common object  with which the deceased was inspired. [292 G- H]      2. Before  the High  Court upheld the conviction of the appellants under  sections 326/149  I.P.C.  it  should  have recorded a  clear finding  as to  what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. [293 A]      3. Whenever  the High  Court  convicts  any  person  or

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persons of  an offence  with the  aid of section 149 a clear finding regarding  the common object of the assembly must be given and the evidence discussed must 292 show not  only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149  of the  I.P.C.  the  essential  ingredients  of section 141 of the I.P.C. must be established. [293 D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 365 of 1974.      Appeal by  Special Leave  from the  Judgment and  Order dated 24.1.1974 of the Patna High Court at Patna in Criminal Appeal No. 306/1969.      U. P. Singh for the Appellants.      K. G. Bhagat and U. N. Prasad for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against the judgment of the Patna High Court dated 24.1.1974 and  has  been  preferred  by  appellants  Dayanand  Mandal, Bhubneshwar Mandal,  Kuldip  Mandal,  Bhagwat  Mandal,  Nemo Mandal, and  Udin Yadav. The occurrence seems to have arisen out of  an irrigation  dispute. According to the prosecution case the  appellants wanted  to irrigate  the land  and when they were  prevented from doing so, Mainu Mandal resisted as a result of which Bhudeo Mandal who is now dead gave a bhala blow to  the deceased  Mainu Mandal.  So far  as  the  other appellants are  concerned, they  are supposed  to have  been armed with lathis but they did not cause any injuries either to the  witnesses or to the deceased. The Sessions Judge had convicted the accused Bhudeo Mandal under section 304 Part I of the  Indian Penal  Code  and  sentenced  him  to  undergo imprisonment for life and the other appellants under section 326/149 of  the Indian  Penal Code  and sentenced  them to 3 years rigorous  imprisonment but  affirmed the  acquittal of the accused of the individual charges under sections 323 and 325 of  the Indian Penal Code by the Sessions Judge. We have gone through  the judgment  of the  High Court  which  while convicting the appellant under section 326/149 of the Indian Penal Code  has given no finding regarding the common object of the  unlawful assembly.  Even  on  the  prosecution  case itself  the   occurrence  took  place  as  a  result  of  an irrigation dispute  and the  appellants were  merely  acting under a bona fide claim or belief that they had the right to irrigate the  land. There  is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were  armed with lathis by itself would not prove that they shared the common 293 object with  which Bhudeo  Mandal was  inspired. Before  the High  Court   could  have   upheld  the  conviction  of  the appellants under  section 326/149  of the Indian Penal Code, it should  have recorded  a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. In these circumstances we  find ourselves  in complete agreement with the argument  of Mr.  U.P. Singh,  learned counsel  for  the appellants  that   there  is  no  material  to  support  the conviction of  the appellants  under section  326/149 of the Indian Penal Code. Mr. Bhagat appearing for the State fairly conceded that in the circumstances of this case it would not be possible  for him to support the conviction mainly on the

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ground that  since the  main  accused  was  convicted  under section 304,  Part I  the other  appellants should also have been convicted  under section  304/149 and not under section 326 of  the Indian  Penal Code.  We should like to point out that whenever  the High Court convicts any person or persons of an  offence with  the aid  of section 149 a clear finding regarding the  common object  of the  assembly must be given and the  evidence discussed must show not only the nature of the common  object but  also that  the object  was unlawful. Before recording  a conviction  under  section  149  of  the Indian Penal  Code, the  essential ingredient of section 141 of the  Indian Penal  Code must  be established. Section 149 creates a  specific offence and deals with the punishment of that offence.  There is  an assembly of five or more persons having a  common object  and the doing of acts by members is in prosecution  of that  object. The  emphasis is  on common object. In  the instant  case there  is neither any evidence nor any  finding that  any of the ingredients of section 149 have been established by the prosecution.      In the  result the appeal is allowed and the conviction and sentence  of  the  appellants  are  set  aside  and  the appellants are  acquitted of the charge framed against them. The appellants  are hereby  discharged from their bail bonds and need not surrender. N.K.A.    Appeal allowed. 294