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PETITIONER: MIZAJI AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT: 18/12/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER DAS, S.K.

CITATION:  1959 AIR  572            1959 SCR  Supl. (1) 940  CITATOR INFO :  D          1974 SC1039  (7,16)

ACT: Murder-Unlawful  Assembly-Common  object to  take  -forcible possession-Killing  by  one-Liability  of   others-Sentence- -Indian Penal Code, 1860, (XLV of 1860) ss. 149 and 302.

HEADNOTE: Early one morning the five appellants, Tej Singh armed  with a spear, his son Mizaji armed with a pistol which he carried in  the folds of his dhoti, his nephew Subedar,  his  cousin Machal and his servant Maiku armed with lathis went to  take forcible possession of a field which was in the  cultivatory possession  of Rameshwar and others.  While Tej Singh  stood guard,  Maiku  started ploughing and overturning  the  jowar that  had  been  sown in one portion of the  field  and  the others started cutting the sugarcane which stood in  another portion.   When Rameshwar and others arrived they  protested to  Tej Singh, whereupon all the accused gathered  near  Tej Singh  and asked the complainants to go away otherwise  they would be finished.  On their refusal to go, Tej Singh  asked Mizaji to fire at them and Mizaji shot Rameshwar dead.   The Courts  below found that the common object of  the  unlawful assembly was to take forcible possession of the field and to meet  every eventuality even to the extent of causing  death if interfered with.  It accordingly convicted the appellants under  s.  302  read with s. 149,  Indian  Penal  Code,  and sentenced Mizaji to death and the others to imprisonment for life.   The appellants contended that the  other  appellants could not have the knowledge that Mizaji carried a pistol in the folds 941 of  his  dhoti,  that  the  murder  was  not  committed   in prosecution of the common object to take forcible possession nor did the other appellants know that murder was likely  to be committed in furtherance of the common object. Held,  that  the appellants had been rightly  convicted  and sentenced  under S. 302 read with s. 149 Indian Penal  Code. The  extent  to which the members of the  unlawful  assembly were prepared to go in prosecution of the common object,  is indicated by the weapons carried by them and their  conduct.

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The  circumstances show that the appellants must have  known that  Mizaji  was carrying a pistol.   The  appellants  were prepared  to  take forcible possession at any cost  and  the murder  was  immediately connected with the  common  object. Under  the  first part Of S. I49 the  offence  committed  in prosecution  of  the  common object must be  one  which  was committed  with a view to accomplish the common  object  and must be connected immediately with the common object of  the unlawful  assembly of which the accused were members.   Even if  the offence committed was not in direct  prosecution  of the  common object of the assembly, it would yet fall  under s. I49 if it could be shown that the offence was such as the members  knew  was likely to be committed.   The  expression ’know’  does not mean a mere possibility, such as  might  or might not happen. Queen v. Sabid Ali, (1873) 20 W.R. 5 Cr., Chikkarange Gowde v.   State of Mysore, A.I.R. (1956) S.C. 731, referred to. The fact that the appellants went to take possession in  the absence  of  the complainants did not show that  the  common object  was not to take forcible possession  as  proceedings were  going on between the parties in the Revenue Court  for possession over the field and the appellants had gone  armed with  lethal  weapons prepared to  overcome  the  opposition which they knew they would meet. Mizaji  was rightly given the sentence of death.  He  shared the  common object of the unlawful assembly and carried  the pistol from his house to use it in prosecution of the object and  did  use it.  The fact that he used the pistol  at  the instance of his father was not a mitigating circumstance.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  81 and 82 of 1958. Appeals  by special leave from the judgment and order  dated February  28, 1958, of the Allahabad High Court in  Criminal Appeal No. 1809 of 1957 and Referred No. 138 of 1957 arising out  of the judgment and order dated November 28,  1957,  of the  Court of Sessions at Farrukhabad in Sessions Trial  No. 61 of 1957. Jai Gopal Sethi and B. C. Misra, for the appellants. G.   C. Mathur, and C. P. Lal for the respondent. 942 1958.  December 18.  The Judgment of the Court was delivered by KAPUR, J.-These are two appeals which arise out of the  same judgment  and  order  of the High  Court  at  Allahabad  and involve a common question of law.  Appellants Tej Singh  and Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh’s cousin and Maiku was a servant of  Tej Singh.   They were all convicted under s. 302 read  with  s. 149  of  the  Indian Penal Code and except  Mizaji  who  was sentenced to death, they were all sentenced to  imprisonment for  life.   They  were also convicted  of  the  offence  of rioting  and because Tej Singh and Mizaji were armed with  a spear  and a pistol respectively, they were convicted  under s.  148  of  the Indian Penal Code and  sentenced  to  three years’  rigorous  imprisonment and the rest who  were  armed with lathis were convicted under s. 147 of the Indian  Penal Code and sentenced to two years’ rigorous imprisonment.  All the sentences were to run concurrently but Mizaji’s term  of imprisonment  was to come to an end after " he is hanged  ". Against  this  order of conviction the  appellants  took  an appeal  to  the High Court and both  their  convictions  and

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sentences were confirmed. The  offence  for which the appellants  were  convicted  was committed  on July 27, 1957, at about sunrise and the  facts leading to the occurrence were that field no. 1096 known  as Sukhna field was recorded in the revenue papers in the  name of  Banwari who was recorded as in possession as  tenant-in- chief Sometime in 1949 he mortgaged this plot of land to one Lakhan  Singh.  In 1952 this field was shown as being  under the  cultivation of Rameshwar, the deceased and four  others persons,  Ram Sarup who was the uncle of  Rameshwar,  Jailal his brother, Sita Ram and Saddon.  The record does not  show as  to  the  title under which these  persons  were  holding possession.   The  mortgage was redeemed sometime  in  1953. The  defence  plea was that in the years  1954,  1955,  1956 possession was shown as that of Banwari.  But if there  were any such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of 943 Rameshwar,  and  four  others  abovenamed.   These   entries showing  cultivating  possession of the  deceased  and  four others  were continued in 1957.  On April 18, 1957,  Banwari sold  the field No. 1096 to Tej Singh appellant who made  an application for mutation in his favour but this was  opposed by  the  deceased and four other persons  whose  names  were shown  as being in possession.  In the early hours  of  July 27,  1957, the five appellants came armed as  above  stated. Mizaji’s  pistol is stated to have been in the fold  (phent) of  his  dhoti.   A plough and plank  known  as  patela  and bullocks  were also brought.  The disputed field  had  three portions,  in one sugarcane crop was growing, in  the  other Jowar  had been sown and the rest had not  been  cultivated. Maiku  started ploughing the Jowar field and overturned  the Jowar  sown  therein  while Tej Singh with  his  spear  kept watch.   Bateshwar  P. W. 7 seeing what was  happening  gave information  of  this  to  Ram  Sarup  who  accompanied   by Rameshwar,  Jailal and Israel came to the Sukhna  field  but unarmed.   Ram Sarup inquired of Tej Singh as to why he  was damaging  his field and Tej Singh replied that he  had  pur- chased the field and therefore would do " what he was  doing " which led to an altercation.  Thereupon, the four  persons cutting the sugarcane crop i.e. Mizaji, Subedar, Machal  and Maiku  came  to the place where Tej Singh was and  upon  the instigation  of  Tej Singh, Mizaji took out the  pistol  and fired  which  hit Rameshwar, who fell down and died  I  hour later.   The accused, after Rameshwar fell down,  fled  from the  place.  Ram Sarup, Jailal and Israel then went  to  the police station Nawabgunj and Ram Sarup there made the  first information  report  at about 7-30 a. m., in which  all  the five  accused were named.  When the police searched for  the accused  they could not be found and proceedings were  taken under  ss. 87 and 88 of the Code of Criminal Procedure,  but before any process was issued Subedar, Tej Singh and  Machal and Maiku appeared in court on August 3, 1957, and Mizaji on August 14, 1957, and they were taken into custody. The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar who carried the 944 information to the party of complainant as to the coming  of Tej  Singh  and others.  The defence of the  accused  was  a total denial of having participated in the occurence and  as a  matter of fact suggested that Rameshwar was killed  in  a dacoity  which  took place at the house of Ram  Sarup.   The learned Sessions Judge accepted the story of the prosecution and  found  Ram Sarup to be in possession of the  field;  he also found that the appellants formed an unlawful assembly "

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the  common object of which was to take forcible  possession of  the  field  and to meet every eventuality  even  to  the extent of causing death if they are interfered with in their taking  possession of the field " and it was in  prosecution of the common object of that assembly that Mizaji had  fired the  pistol and therefore all were guilty of the offence  of rioting  and of the offence under s. 302 read with  s.  149, Indian  Penal Code.  The High Court on appeal held that  the appellants were members of an unlawful assembly and had gone to  the  Sukhna  field with the object  of  taking  forcible possession and "  there  is also no doubt that the accused had  gone  there fully prepared to meet any eventuality even to commit murder if  it was necessary for the accomplishment of their  common object  of  obtaining possession over the field.   There  is also  no  doubt that considering the  various  weapons  with which  the accused had gone armed they must have known  that there  was  likelihood  of  a  murder  being  committed   in prosecution of their common object ". The  High Court also found that all the appellants had  gone together  to  take forcible possession and were  armed  with different   weapons  and  taking  their  relationship   into consideration  it was unlikely that they did not  know  that Mizaji was armed with a pistol and even if the common object of the assembly was not to commit the murder of Rameshwar or any other member of the party of  the complainants  II there can  be  no doubt that the accused fully  knew,  considering ’the  nature of weapons with which they were armed,  namely, pistol and lathis, that murder was likely to be committed in their attempt to take forcible possession over the  disputed land ". The High Court further 945 found  that  the accused had gone prepared if  necessary  to commit  the murder in prosecution of their common object  of taking forcible possession.  They accepted the testimony  of Matadin  and  Hansram who stated that all  the  accused  had asked  Ram Sarup and his  companions to  go  away, otherwise they would finish all of them and when they resisted  Mizaji accused  fired  the pistol at them and thus in view  of  the nature  of  the  weapons with which they  had  gone  to  the disputed  piece of land, " they knew that murder was  likely to  be committed in prosecution of their object  ".  Another finding  given  by the High Court was  that  the  appellants wanted to forcibly dispossess the complainants and with that object  in  view  they went to the disputed  field  to  take forcible  possession  and that the  complainant’s  party  on coming to know of it went to the field and resisted.  Mizaji fired  the  pistol and thus caused the death  of  Rameshwar. The High Court also held :- " We are also of the opinion that the act of the accused was premeditated   and  well-designed  and  that   the   accused considering  the circumstances of the case and  the  weapons with  which they were armed, knew that murder was likely  to be committed in accomplishment of their common object." For the appellants it was contended that the High Court  was not justified in drawing the inference that other members of the  party of the appellants had knowledge of the  existence of  the pistol.  There is no doubt that on the evidence  the father Tej Singh must have known that the son, Mizaji, had a pistol.   And  in the circumstances of this  case  the  High Court cannot be said to have erroneously inferred as to  the knowledge  of  the rest as to the possession  of  pistol  by Mizaji. The  question  for  decision is as to what  was  the  common object  of the unlawful assembly and whether the offence  of

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murder was committed in prosecution of the common object  or was such an offence as the members of the unlawful  assembly knew was likely to be committed in prosecution of the common object.  It was argued on behalf of the appellants that  the 119 946 common  object  was  to take forcible  possession  and  that murder  was committed neither in prosecution of  the  common object  of  the  unlawful assembly nor was it  such  as  the members  of  that  assembly  knew  to  be  ,.likely  to   be committed.  That the common object of the unlawful  assembly was to take forcible possession of the Sukhana field  cannot be  doubted.   Can it be said in the circumstances  of  this case that in prosecution of the common object the members of the  unlawful assembly were prepared to go to the extent  of committing  murder  or they knew that it was  likely  to  be committed ? One of the members of the assembly Tej Singh was armed with a spear.  His son Mizaji was armed with a  pistol and  others were carrying lathis.  The extent to  which  the members  of  the unlawful assembly were prepared  to  go  is indicated  by the weapons carried by the appellants  and  by their conduct, their collecting where Tej Singh was and also the language they used at the time towards the complainant’s party.   The High Court has found that the appellants "  had gone   prepared  to  commit  murder  if  necessary  in   the prosecution  of  their  common  object  of  taking  forcible possession of the land ", which it based on the testimony of Matadin and Hansraj who deposed that when the  complainant’s party arrived and objected to what the appellants were doing they  (the appellants) " collected at once " and  asked  Ram Sarup  and  his companions to go away otherwise  they  would finish  all of them and when the latter refused to go  away, the  pistol  was  fired.  That finding  would  indicate  the extent  to which the appellants were prepared to go  in  the prosecution  of  their  common  object  which  was  to  take forcible  possession of the Sukhana field.  The  High  Court also found that in any event the case fell under the  second part  of  s. 149, Indian Penal Code in view of  the  weapons with  which the members of the unlawful assembly were  armed and their conduct which showed the extent to which they were prepared to go to accomplish their common object. Counsel for the appellants relied on Queen v. Sabid Ali (1), and argued that s. 149 was inapplicable.  There (1)  (1873) 20 W.R. 5 Cr. 947 the   learned  Judges  constituting  the  full  bench   gave differing opinions as to the interpretation to be put on  s. 149,  Indian Penal Code.  That was a case where the  members of an unlawful assembly went to take forcible possession  of a  piece of land.  The view of the majority. of  the  Judges was that finding unexpected opposition by one member of  the party  of the complainants and also finding that  they  were being  over.  powered  by him, one of  the  members  of  the unlawful  assembly whose exact time of joining the  unlawful assembly  was  not  proved fired a gun killing  one  of  the occupants  of  the  land who were  resisting  forcible  dis- possession.  It was also held that the act had not been done with  a view to accomplish the common object of driving  the complainants  out of the land, but it was in consequence  of an  unexpected  counter-attack.   Ainslie, J.,  was  of  the opinion that the common object of the assembly was not  only to  forcibly eject the occupants but to do so with  show  of force and that common object was compounded both of the  use of the means and attainment of the end and that it  extended to  the  committing  of murder.  Phear, J.,  said  that  the

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offence  committed must be immediately connected  with  that common  object by virtue of the nature of the  object.   The members of the unlawful assembly must be prepared and intend to  accomplish that object at all costs.  The test was,  did they  intend to attain the common object by means of  murder if  necessary  ?  If events were of sudden  origin,  as  the majority of the learned Judges held them to be in that case, then the responsibility was entirely personal.  In regard to the second part he was of the opinion that for its  applica- tion it was necessary that members of the assembly must have been aware that it was likely that one of the members of the assembly  would do an act which was likely to  cause  death. Couch,  C.  J., was of the opinion that firing  was  not  in prosecution  of the common object of the assembly  and  that there  was  not much difference between the  first  and  the second part of s. 149.  He said :- " At first there does not seem to be much difference between the two parts of the section and I think the 948 cases which would be within the first, offences committed in prosecution  of the common object, would be,  generally,  if not  always, within the second, namely, offences  which  the parties knew to be likely to be committed in the prosecution of the common object.  But I think there may be cases  which would come within the second part and not within the first." Jackson, J., held in the circumstances of that case that the assembly  did not intend to commit nor knew it  likely  that murder  would be committed.  Pontifex, J.,  interpreted  the section  to  mean that the offence committed  must  directly flow from the common object or it must so probably flow from the prosecution of the common object that each member  might antecedently expect it to happen.  In the second part "know" meant to know that some members of the assembly had previous knowledge that murder was likely to be committed. This  section has been the subject matter of  interpretation in the various High Court of India, but every case has to be decided  on its own facts. - The first part of  the  section means  that  the  offence committed in  prosecution  of  the common object must be one which is committed with a view  to accomplish  the  common object.  It is  not  necessary  that there  should be a preconcert in the sense of a  meeting  of the  members  of  the unlawful assembly  as  to  the  common object; it is enough if it is adopted by all the members and is  shared by all of them.  In order that the case may  fall under the first part the offence committed must be connected immediately with the common object of the unlawful  assembly of  which  the accused were members.  Even  if  the  offence committed is not in direct prosecution of the common  object of  the assembly, it may yet fall under s. 149 if it can  be held  that  the  offence was such as the  members  knew  was likely  to  be committed.  The expression I know’  does  not mean a mere possibility, such as might or might not  happen. For instance, it is a. matter of common knowledge that  when in  a village a body of heavily armed men set out to take  a woman  by force, someone is likely to be killed and all  the members  of  the  unlawful assembly must be  aware  of  that likelihood and would be guilty 949 under  the second part ’of s. 149.  Similarly, if a body  of persons go armed to take forcible possession of the land, it would  be equally right to say that they have the  knowledge that  murder is likely to be committed if the  circumstances as  to the weapons carried and other conduct of the  members of the unlawful assembly clearly point to such knowledge  on the part of them all.  There is a great deal to be said  for

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the  opinion of Couch, C. J., in Sabid Ali’s case  (1)  that when  an offence is committed in prosecution of  the  common object,  it would generally be an offence which the  members of the unlawful assembly knew was likely to be committed  in prosecution  of the common object.  That, however, does  not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The  distinction  between the two parts of  s.  149,  Indian Penal Code cannot be ignored or obliterated.  In every  case it  would be an issue to be determined whether  the  offence committed falls within the first part of s. 149 as explained above  or  it  was an offence such as  the  members  of  the assembly know to be likely to be committed in prosecution of the common object and falls within the second part. Counsel for the appellants also relied on Chikkarange  Gowde v.  State  of Mysore (2).  In that case there  were  special circumstances  which were sufficient to dispose of it.   The charge  was a composite one mixing up common  intention  and common  object under ss. 34 and 149, Indian Penal  Code  and this  Court  took the view that it really was one  under  s. 149,  Indian  Penal Code.  The charge did not  specify  that three  of  the members had a separate  common  intention  of killing  the  deceased,  different from that  of  the  other members of the unlawful assembly.  The High Court held  that the  common object was merely to chastise the deceased,  and it  did not hold that the members of the  unlawful  assembly knew   that  the  deceased  was  likely  to  be  killed   in prosecution  of  that  common object.  The  person  who  was alleged to have caused the fatal injury was acquitted.  This Court held that on the findings (1) (1873) 20 W. R. 5 Cr. (2) A.I.R. 1956 S.C. 731. 950 of  the  High Court there was no liability under s.  34  and further  the  charge  did  not  give  proper  notice  nor  a reasonable opportunity to those accused to meet that charge. On  these findings it was held that conviction under s.  302 read  with s. 149 was not justified in law nor a  conviction under s. 34. It  was  next  argued  that  the  appellants  went  to  take possession  in the absence of the complainants who  were  in possession  and therefore the common object was not to  take forcible  possession but to quietly take possession of  land which  the appellants believed was theirs by right.  In  the first place there were proceedings in the Revenue Department going  on about the land and the complainants were  opposing the  claim of the appellants and then when -people go  armed with  lethal weapons to take possession of land which is  in possession  of  others, they must have  the  knowledge  that there would be opposition and the extent to which they  were prepared  to  go  to accomplish their  common  object  would depend on their conduct as a whole. The  finding  of the High Court as we have pointed  out  was that  the  appellants  had gone with the  common  object  of getting  forcible  possession  of the  land.   They  divided themselves  into three parties, Maiku appellant was  in  the field where jowar was sown and he was ploughing it,  Mizaji, Subedar  and Machal were in the sugar field and cutting  the crop.   Tej Singh was keeping watch.  When the party of  the complainants on being told of what the appellants were doing came,  they  protested  to Tej Singh.   Thereupon,  all  the members of Tej Singh’s party gathered at the place where Tej Singh was and asked the complainants " to go away  otherwise they would be finished ", but they refused to go.  Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired  the

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pistol  which he was carrying in the fold of his dhoti as  a result of which Rameshwar was injured, fell down and died  I hour later.  It was argued on behalf of the appellants  that in  these circumstances it cannot be said that  the  offence was  committed  in prosecution of the common object  of  the assembly which was clear- from the fact 951 that the party had divided itself into three parts and  only Mizaji used his pistol and the other appellants did not  use any weapon and just went away. Both  the Courts below have found that the pistol was  fired by Mizaji and thus he was responsible for causing the  death of  Rameshwar  which would be murder and also  there  is  no doubt  that  Tej Singh would be guilty of abetment  of  that offence.   But the question is whether s. 149 is  applicable in this case and would cover the case of all the  appellants ? This has to be concluded from the weapons carried and  the conduct of the appellants.  Two of them were armed one  with a  spear and the other with a pistol.  The rest  were  armed with  lathis.  The evidence is that when  the  complainants’ party  objected  to  what  the  appellants  did,  they   all collected   together   and   used   threats   towards    the complainants’  party telling them to go away otherwise  they would be finished and this evidence was accepted by the High Court.   From  this conduct it appears that members  of  the unlawful assembly were prepared to take forcible  possession at  any cost and the murder must be held to  be  immediately connected  with  the common object and  therefore  the  case falls  under  s.  149, Indian Penal Code and  they  are  all guilty  of  murder.  This evidence of  Hansram  and  Matadin which  relates  to a point of time  immediately  before  the firing of the pistol shows that the members of the  assembly at  least knew that the offence of murder was likely  to  be committed  to  accomplish  the  common  object  of  forcible possession. It  was then contended that Mizaji did not want to fire  the pistol and was hesitating to do so till be was asked by  his father  to  fire and therefore penalty of death  should  not have  been imposed on him.  Mizaji carried the  pistol  from his house and was a member of the party which wanted to take forcible  possession of the land which was in possession  of the  other party and about which proceedings were  going  on before  the  Revenue Officer.  He fully  shared  the  common object  of the unlawful assembly and must be taken  to  have carried the pistol in order to use it in the prosecution  of the common object of the assembly and he did use 952 it. Merely because a son uses a pistol and causes the  death of  another at the instance of his father is  no  mitigating circumstance which the courts would take into consideration. In  our  opinion the courts below have rightly  imposed  the sentence of death on Mizaji.  Other appellants being equally guilty  under s. 149, Indian Penal Code, have  been  rightly sentenced to imprisonment for life. The appeals Must therefore be dismissed. Appeals dismissed.