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PETITIONER: SANTOSH

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT07/02/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.

CITATION:  1975 AIR  654            1975 SCR  (3) 463  1975 SCC  (3) 727

ACT: Indian Penal Code Section 302/149--Common object--Concurrent findings  of  fact--Vicarious  liability of  members  of  an unlawful assembly.

HEADNOTE: 118  persons were prosecuted for participation in a  serious riot.   5   accused  were  discharged  by   the   Committing Magistrate.   The  Additional Sessions  Judge  acquitted  61 accused  and  convicted 52 under section 147  and  sentenced them  to 2 years’ rigorous imprisonment.  The appellant  was held guilty under section 304(1) read with 149 and sentenced to  5  years rigorous imprisonment,  under  section  325/149 sentenced to 2 years rigorous imprisonment and under section 323/149 sentenced to a month’s rigorous imprisonment. The convicted persons and the State filed appeals before the High Court.  Tile High Court convicted 14 persons  including the  appellant  and  altered his  conviction  under  section 304/1/149  into  302/149  for the murder of  3  persons  and sentenced the appellant to life imprisonment. The  Learned  Counsel for the appellant  before  this  Court contended  that  the appellant did not  participate  in  the riot. HELD  :  This  Court is unable  to  disturb  the  concurrent findings   of  the  two  courts  below   about   appellant’s participation  in  the riot.  The High  Court  however,  was wrong  in  holding that the common object  of  the  unlawful assembly   was   necessarily  to  cause   death   of   three individuals.   In  a case like the present  there  were  two factions;  one of the oppressors and the other of  the  opp- ressed,  and  the  intention of  members  of  the  oppressed faction  could be initially, to demonstrate quite  lawfully. The circumstances showed that the appellant’s intention  may have  been confined to joining a procession for purposes  of protest.   If it is doubtful that the common object  of  the unlawful  assembly  was to cause death, persons  other  than those  who  actually committed the acts resulting  in  death could  not be held vicariously liable for  murder.  [464F-G; 564H466D] [The  judgment  of  the High Court as far  as  appellant  is concerned  was  set  aside and that of  the  Sessions  Court restored.] [446G]

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JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 22  of 1971. (Appeal by Special Leave from the Judgment & Order dated the 30th  March,  1970  of  the Madhya  Pradesh  High  Court  in Criminal appeal No. 536 of 1966). P. P. Juneja for the appellant. Ram Punjwani and H. S. Parihar, for the respondent. The Judgment of the Court was delivered by BEG, J. This is an appeal by special leave by one out of 118 persons  who were prosecuted for participation in a  serious riot on August 1, 1965, in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pradesh, as a result of which several persons were attacked with sharp edged weapons and three  of them died of wounds sustained by them.  Five accused persons were  discharged by the Committing Magistrate.  One  hundred and thirteen persons were jointly tried for various offences punishable  under Sections 147, 148, 302, 307, 325  and  323 Indian  Penal Code.  Charges were also alternatively  framed under Section 464 302/149,  307/149, 323/149 and 325/149 against all of  them. An  Additional Sessions’ Judge of Bilaspur  acquitted  sixty one  accused  persons And convicted fifty two  persons.   He found  all  the convicted persons guilty under  Section  147 P.C. and sentenced them to two years rigorous  imprisonment. We need only mention the other convictions of the  appellant before us.  He was held guilty under Section 304(1)/149  IPC and sentenced to five years rigorous imprisonment and  under Section  325/149  IPC and sentenced to  two  years  rigorous imprisonment, and under Section 323/149 IPC and sentenced to a month’s rigorous imprisonment. On appeals by the convicted persons as well as by the  State Government,  the High Court, while convicting only  fourteen persons,  including  the appellant, altered  his  conviction under  section 304(1) /149 IPC into three convictions  under Section  302/149  for  the murder of  three  persons  Badlu, Santu,  Chhote  Bhurwa, but it made the  sentences  of  life imprisonment  concurrent for the three offences.   It  main- tained  the  other convictions and sentences passed  by  the learned Sessions’ Judge. Learned Counsel for the appellant has tried to advance  some ,arguments  to  assail the conviction of the  appellant  for participation in rioting.  But, we are not impressed by  any of the criticisms leveled against six witnesses relied  upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4,  Kabra, PW  5,  and  Lulwa, PW 7. The unshaken  evidence,  of  these witnesses   had   established   that   the   appellant   had participated  in the riot, and chased the victims, and  even inflicted some minor injuries on Baliram, PW 1. But,  beyond that, the participation of the appellant in the actual  acts of  cutting the limbs of the three persons,  who  eventually died  of  profuse  bleeding,  was  not  deposed  to  by  any prosecution witness. Although we are unable to disturb the concurrent finding  of the  fact  by  the Trial Court and the  High  Court  of  the participation  of  the appellant in the serious  riot  which took  place  on  1-8-1965 in village Ganiari,  we  are  also unable  to concur with the view of the High Court  that,  on facts established, the common object of the unlawful  assem- bly  was  necessarily  to  cause  the  death  of  the  three

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individuals who, unfortunately, lost their lives as a result of  the  out-burse  of frenzy of ,an  outraged  mob  against persons  who, according to the learned Session’  Judge,  had given cause to the villagers to be seriously displeased with their nefarious activities. The learned Sessions’ Judge, while convicting the  appellant under Section 304(1), had observed               "I am inclined to take a lenient view of these               killings because the persons killed had become               a nuisance to the village community and  their               criminal  acts knew no bounds or  rationality.               A  time  comes when even  an  orderly  society               revolts  finding  no  relief  in  the  regular               course.  Though such acts are not  permissible               even  in such cases and cannot  be  encouraged               yet  due discrimination was not lost sight  of               by               4 65               the assailants and severe penalty is thus  not               called for in the present case.’ We  do  not consider these reasons of the  learned  Sessions Judge,  who  had  given them for  convicting  the  appellant together  with other accused persons under Section  304  (1) /149  IPC  and  sentencing  them  to  five  years’  rigorous imprisonment, to be at all sound or relevant in justifying a conviction under Section 304(1)/149 IPC. The  learned Sessions’ Judge had relied upon Kapur Singh  v. State of Pepsu(1), to hold that, as injuries were  inflicted upon  the limbs of the three men, who died of bleeding,  but infliction  of  injuries  on vital parts  of  the  body  was deliberately avoided, an intention of anybody to murder  was not  established.   The learned Session’s Judge  appears  to have overlooked the various clauses of Section 300 IPC.   An intention  to  kill  is  not  required  in  every  case.   A knowledge  that the natural and probable consequences of  an act  would  be  death will suffice for  a  conviction  under Section 302 IPC. The  question  on which we entertain serious  doubts,  after examining  the nature of the case and the relevant  evidence on record is whether the killing of any of the three men who died  was  within the common object of the large  number  of persons  who.  took part in the riot in various  ways  in  a fairly  wide-spread  area.  It may well be  that  those  who actually  inflicted the injuries on the three men  who  died could  be  held liable for causing death in  a  particularly cruel manner.  The( question, nevertheless, remains  whether each  of the large number of other rioters in  the  village, who  took  part in various ways in what appeared  to  be  an upsurge of resentment and hostility against a party three of which  lost  their lives, shared the common object  to  kill them or to do acts whose natural and probable results  would be their deaths. A  reference  made to Chikkarange Gowda & Ors. v.  State  of Mysore(2), would show that each member of a mob need not  be necessarily  be held liable for the actions of  every  other member of that mob.  It may be easier, in some respects,  to prove  a common object as a basis for a vicarious  liability under Section 149 IPC, than to establish a common  intention within the meaning of Section 34 IPC.  Nevertheless, as  was pointed  out  by  this Court  in  Chikkarange  Gowda’s  case (supra),  the principle has been well recognised, since  the decision  in  1873  in Queen v.  Sabed  Ali(3),  that  every offence  which may be committed by a member of  an  unlawful assembly will not be necessarily ascribed to or  vicariously fastened  upon every other member of that assembly by  using

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Section 149 IPC.  The likelihood of causing of death by  the nature of the actions of the members of the assembly must be shown  to be within the knowledge of a member who is  to  be made vicariously liable for a death.  Such knowledge may  be inferred from the nature of the actions committed by  others in  an unlawful assembly which the member  held  vicariously liable  continues  to associate himself with  despite  these actions seen by him or known to him. In a case such as the one before us, in which there were two factions  in a village, one of the oppressors and the  other of the oppressed, (1) AIR 1956 S.C. 654.              (2) AIR 1956 S.C. 731. (3)  20 Sut.  W.R. (Cr.) 5 (A). 466 smarting  under  the pain of injuries   inflicted  by  their oppressors,  the intention of a member of an assembly  could be  initially  quite lawful.  His object may not  go  beyond joining  a  procession  for purposes  of  protest.   We  are convinced, on the evidence on record, that the participation of  the  appellant before us went beyond,exhibiting  a  mere intention  to  protest.  It not only embraced  knowledge  of likelihood  of  hurt of some kind to members  of  the  party attacked,  but  it included an attack by  the  appellant  on Baliram,  PW  1.  The nature of that  attack  was,  however, relatively mild.  At most, from the, concerted action of  so many men a member of the unlawful assembly, on the facts and circumstances  of  the case before us, could  be  reasonably held to be aware that grievous hurt would result. After   examining   all  the  evidence   relating   to   the participation of the appellant and others in the riot we are left in grave doubt whether the assembly had a common object of  killing  any one at all,’ even if such  was  really  the object  of any particular member or members of the  unlawful assembly.  It may be that those who cut the limbs of men who lost  their lives due to bleeding could reasonably  be  held liable  for murder.  But, it seems to be unlikely that  each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had  such an object.  This was exactly the view adopted by this  Court in Chikkarange Gowda’s case (supra). As  we  are  doubtful whether the appellant  could  be  held guilty  of participation in an unlawful assembly  which  had the  common object of killing or even maiming the three  men who lost their lives, we think that the appellant could  not be convicted under Section 302/149 IPC.  We also think  that the learned Sessions’ Judge was in error in holding that the appellant could be convicted under Section 304 (1) /149 IPC. For  a  conviction under Section 304(1) IPC., it has  to  be shown that the case of the convicted person falls within one of  the  five Exceptions found in Section 300  IPC.   It  is obvious  that the case of the appellant does not fall  under any  of  these Exceptions.  If it is  doubtful  whether  the common  object  of  the  unlawful  assembly  joined  by  the appellant was to commit any acts which were either  intended to  cause death, or, from which knowledge of  likelihood  of death  could be inferred, we think that persons  other  than those  who  actually committed the acts resulting  in  death could not be held vicariously liable for murder. The  result is that we allow this appeal to the extent  that we set aside the convictions and sentences of the  appellant under  Section 302/149 IPC.  We maintained  his  convictions and  sentences under Section 147, 323/149 and  325/149  IPC. Subject  to the modification indicated here this, appeal  is dismissed.   We, understand that the appellant  has  already undergone  imprisonment longer than the longest one  imposed

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for  the convictions sustained by us.  We therefore,  direct that  he be released forthwith unless wanted in  some  other connection. P.H.P.                Appeal allowed. 467