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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: MAHENDRA SINGH & ORS.

DATE OF JUDGMENT15/10/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  455            1975 SCR  (2) 418  1975 SCC  (3) 314

ACT: Indian  Penal Code (Act 45 of 1860)-ss. 141 and  149,  Scope of. Practice- Sentence- Interference by Supreme Court with order of acquittal of High Court.

HEADNOTE: Eighteen persons were charged with various offences  arising out of five murders.  The trial court found, that there  was dispute  between the party of the accused and the  party  of the deceased regarding the right to take water from a  tube- well; that one of the accused party was appointed as Thokdar to  regulate the distribution of water; that on the  day  of the occurrence the accused party consisting of over 20 armed persons,  went  to  the field and the  Thokdar  ordered  big companions to divert the water from the field of one of  the members  of the deceased party ; that on an objection  being raised  by members of the deceased party the accused  opened fire as a result of which four persons died  instantaneously and a fifth was injured, that the four dead bodies were then dragged  to some distance, the injured person was forced  to ,walk,  the dead bodies were decapitated and limbs  severed, the  injured person was hacked to death, a fire was it,  and the five dead bodies were thrown into the fire; and that the severed heads were carried away by the accused as  trophies. On these findings the trial court convicted nine accused for offences  under ss. 302 and 201 read With s. 149 I.  P.  C., another accused under s. 201 read with s. 149 I. P. C.,  and acquitted  the other eight.  On appeal, the High  Court,  on the  basis that the Thokdar could regulate the  distribution of  water and was entitled to enforce his authority in  such manner  and by such means as he thought proper,  held,  that the common object of the assembly was to redivert the  water if  necessary by use of force and that the Thokdar  and  his followers  had armed themselves with guns and other  weapons only for carrying out that object and not for the purpose of committing murder, and that therefore, they did not form  an unlawful assembly.  The High Court accepted the evidence  of motive and found that the actual number of persons who  took part  in the incident must have been considerably more  than five  and that all those who took part in the incident  also took part in dragging the dead bodies and in the attempt  to

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do away with the evidence of murder, but convicted only  one out  of  the nine persons convicted by the trial  court  for murder, and convicted five others for offences under s.  201 read with s. 149 I. P. C. in the appeal to this Court, HELD  :  (1)  Under  s. 149, every  member  of  an  unlawful assembly. is liable for the offence committed by any  member of  the assembly in prosecution of its common object.   Such vicarious  liability  is  not limited to the  acts  done  in prosecution  of  the  common object  of  the  assembly,  but extends even to acts which the members of the assembly  knew to  be likely to be committed in prosecution of that  common object.  On the findings of the High Court the assembly  was undoubtedly  an  unlawful assembly as provided  by  s.  141, fourth paragraph, I. P. C. Under the Explanation to g.  141, an  assembly  which was not unlawful when it  assembled  may subsequently become an unlawful assembly.  The conclusion is also unavoidable that the members of the assembly knew  that the  prosecution of even the limited object of the  assembly was  likely  to result in the murder of the members  of  the opposite party.  If the accused were members of the unlawful assembly and had taken a leading part either in the first or the  final  stage of the incident they cannot  escape  their liability for the five murders.  There wag but one  unlawful assembly  and  its  members  were animated  by  a  unity  of purpose.   Whether  one  did this or  that  act,  there  was identity  of  interest  among the members  of  the  unlawful assembly  and they were actuated by a common object.   Hence the  five accused, who were convicted by the High  Court  of the  offences under s. 201 read with s. 149 should  also  be convicted under g. 302 I. P. C. read with, s.     149.  [421 H-423 E] 419 (2)As regards sentence, three of them bad taken part in  the decapitation  and throwing the dismembered bodies  into  the fire.  They were the more prominent members of the  unlawful assembly and without their active participation the assembly could  not  have achieved its common object. in  respect  of them, the sentence of death imposed by the trial Court must, therefore, be restored.  As regards the other two, there was no  evidence  as to how they were armed  and  therefore  the trial Court was as justified in imposing the lesser sentence and that sentence should be confirmed. [423 F-424 C] (3)As regards the three others convicted by the trial  court and  acquitted  by the High Court it is possible to  take  a view  different from that of the High Court but  that  would not  justify the setting aside of the High Court’s order  of acquittal,  when the finding of the High Court could not  be said to be perverse or against the weight of evidence.  [424 C-E]

JUDGMENT: CRIMINAL APPELATE JURISDICTION: Criminal Appeals Nos.  10  & 11 of 1971. Appeals by Special Leave from the Judgment & Order dated the 19th February; 1970 of the Allahabad High Court in  Criminal Appeals Nos. 20, 194 and 582 of 1969. O.P. Rana for the appellant. J.   P.  Goyal,  for respondent Nos. 3-5 (In  Crl.   A.  No. 10/71) and respondents (In Crl.  A. No. 11 of 1971). The Judgment of the Court was delivered by CHANDRACHUD,   J.-Eighteen  persons  were  tried   by   the, Additional  Sessions  Judge,  Agra,  for  various   offences

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arising  out of the murders of five persons : Gajraj  Singh, Bhairon  Singh,  Budh Singh, Pancham Singh and  Amar  Singh. The learned Judge acquitted eight persons and convicted  the remaining  ten.  Nine out of these ten were convicted  under sections  302  and 201 road with section 149  of  the  Penal Code.   Seven out of these nine were sentenced to death  and the remaining two to imprisonment for life.  The tenth to be convicted  was  held  guilty under  section  201  read  with section  149  and was sentenced to  imprisonment  for  seven years. In appeals filed by the accused, the High Court of Allahabad substantially modified the judgment of the trial court.   It convicted only one accused, Dev Chand, under section 302 and upheld  the  sentence of death imposed on him by  the  trial court.   It  also upheld his conviction and  sentence  under section  201  read  with section 149.   The  conviction  and sentence of eight of the accused under section 302 read with section 149 was set as’, ’de by the High Court. it  however, upheld  the  conviction and sentence of five  out  of  those under section 201 read with section 149. These  appeals by special leave are filed by the.  State  of Uttar  Pradesh  against  the  judgment  of  the  High  Court acquitting eight out of the nine accused who were  convicted by the trial court under section 302 read with section  149. Thus, the main questions to be considered in this appeal are whether   the  respondents  were  members  of  an   unlawful assembly,-whether the common object of that assembly was  to commit  the  murder  of the five  persons  and  whether  the respondents or any of them can be held variously liable  for those murders. 12-255 Sup C 1/75 420 The  incident leading to the prosecution of the  respondents occurred  on  November,  5, 1967 at  Pilwa,  District  Agra, ’LJ.P.  There were disputes between the villagers  regarding the  right  to take water from a tube-well  as  the  revenue authorities  were unable to fix the turns for taking  water, Mahipat  Singh-the  absconding accused was  appointed  as  a Thokdar to regulate the distribution of water. On  or  about  November 1, 1967 the  deceased  Gajraj  Singh cleared  the channel leading to his field in an  attempt  to take water from the well.  The Thokdar, Mahipat Singh, asked Gajraj  Singh to postpone taking the water until he  himself had  finished  his  turn.  Two  days  before  the  incident, Mahipat Singh told Gajraj Singh that he could take water for irregating  his  field  from the eve  of  Saturday  the  4th November.   Gajraj Singh accordingly started irrigating  his field  on  Saturday but Mahipat Singh objected  once  again. Gajraj Singh and his companions affirmed their intention  to take  water at all costs whereupon Mahipat Singh is  alleged to have left the field uttering some threats. A little after sunrise on the next day, the 5th November, an armed group of over twenty persons including the respondents went  to  Gajraj Singh’s field.  Mahipat Singh  ordered  his companions  to  divert the water from the  field  of  Sarnam Singh  who, it seems, was taking water from the  well  after Gajraj  Singh  had  finished irrigating his  field.   On  an objection  being raised by Gajraj Singh and his  companions, the  accused are alleged to have opened fire as a result  of which   at   least   four   out   of   five   persons   died instantaneously.   Those four are Gajraj Singh, his  brother Bhairon  Singh,  his nephew Budh Singh and a  person  called Pancham  Singh.   Amar Singh, the son of Gajraj  Singh,  was also injured by a gun-shot, but according to the persecution he survived for some time,

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The  dead  bodies of four victims were then dragged  by  the accused over a distance of about a furlong.  Amar Singh  was forced to walk the distance.  At a spot near a  cattle-shed, six  of  the accused who were armed with  Gandasas  beheaded Amar Singh and severed his arms and legs.  Thereafter,  they decapitated  the four dead bodies and severed  their  limbs. They smashed two nearby huts, collected a little wood, asked one  Nanney Khan (since acquitted) to lend petrol  from  his jeep,  sprinkled  the petrol on the wood and  after  setting fire there to threw the five dead bodies into the fire.  The severed  heads were carried away as souvenirs.  So  gruesome is the manner of murder. The prosecution led the evidence of two eye-witnesses Punjab Singh (P.W. 1) and Sant Ram (P.W. 2).  While Amar Singh  was being  hacked to death, Punjab Singh asked Sant Ram to  give information  of  the  incident  to a  member  of  the  Armed Constabulary  who  was posted at Noorpur, a  distance  of  3 miles.   Punjab Singh himself went to the  Firozabad  police station  and lodged the First Information Report at about  8 a.m.  After  receiving  the report from  Sant  Ram,  a  Head Constable  of the Armed Constabulary rushed to the place  of occurrence  with three other Constables and found  the  dead bodies  burning.   He extinguished the  fire  and  recovered parts of the bodies from the fire. 421 Out   of  the  twenty-four  accused  named  in   the   First Information  Report,  six  had  absconded.   The   remaining eighteen  were  put  up for trial  with  the  result  stated earlier. We  see great difficulty in understanding the  approach  and reasoning  of the High Court.  The High Court  accepted  the evidence  of  motive and held that the village  was  divided into  two factions, one headed by the deceased Gajraj  Singh and the other by Mahipat Singh.  The High Court also  found, specifically,  that on the morning of November 5,  1967  the party of the accused, under the leadership of Mahipat Singh, went to the field of Gajraj Singh "armed with gun and  other weapons".   According  to the High  Court,  considering  the number  of   persons who were murdered,  the  distance  over which  the dead bodies were dragged and the manner in  which those  bodies were thrown into the fire, there could  be  no doubt  "that the actual number of accused who took  part  in the incident must have been considerably more than five". On  the basis of these findings the High Court proceeded  to consider whether the accused could be said to be members  of an  unlawful  assembly.  It answered this  question  in  the negative  on the ground that Mahipat Singh and his  partymen had  gone with guns and Gandasas to Gajraj Singh’s field  in order  to prevent Gajraj Singh from taking the water of  the well  and  not for the purpose of  committing  the  murders. This is how the High Court explains its point of view:               "As Gajraj Singh and his partymen were waiting               in  fields  armed with spears and  Lathis,  so               Mahipat  Singh  and  his party  men  had  also               equipped   themselves  with  guns  and   other               weapons.   But  it could not be  assumed  that               they had themselves collected there to  commit               murders  and  therefore, were  members  of  an               unlawful assembly.". The  High  Court  seems to have thought that  as  a  Thokdar Mahipat  Singh could regulate the distribution of water  and was entitled to enforce his authority in such manner and  by such means as he thought proper. In  coming  to this conclusion the High Court  fell  into  a grave  error.   Section  141, Penal Code,  provides  by  its

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Fourth Paragraph that an assembly of five or more persons is designated as an "unlawful assembly" if the common object of the  persons  composing it is, inter alia,  to  deprive  any person  of  the  use of water or to  enforce  any  right  or supposed right, by means of criminal force.  The High  Court found that Ma Mahipat Singh and his followers went to Gajraj Singh’s field with guns and Gandasas in order to enforce the right of Mahipat Singh to regulate the distribution of well- water.  Mahipat Singh may be assumed to have an  unqualified right  to  regulate the distribution of water  but  when  he collected a gang of twenty odd people and marched to  Gajraj Singh’s field to enforce that right, real or supposed he was clearly collecting an unlawful assembly.  The only  question which the High Court had then to consider was as to what was the object of that unlawful assembly. 422 The High Court did advert to this question but it again fell into  the  error of supposing that if there was  "a  regular confrontation"  between the rival factions, it could not  be said that the common object of the unlawful assembly was  to commit  the  murders.   On this aspect the  High  Court  has expressed its view thus:               "They no doubt went heavily armed in order  to               use  force  if necessary to  carry  out  their               common  object.  After they carried out  their               common  objects,  it appears, there  was  con-               frontation  between the parties which  led  to               the  main  incident  resulting  in  the   five               deaths." If  the accused went to Gajraj Singh’s field  heavily  armed and if they were determined to carry out their object by the use of criminal force, it is difficult to appreciate how  it could  be ’said that the limited object of the assembly  was to  redivert  the  water from the  field  of  Gajraj  Singh. Evidently, the attention of the High Court was not drawn  to the  Explanation  to section 141, Penal Code, by  which  "An assembly,  which  was not unlawful when  it  assembled,  may subsequently become an unlawful assembly".  Assuming for the sake  of argument that there was some slender  justification for the view that the assembly was initially not actuated by an  unlawful  object,  it is impossible to  agree  that  the assembly  did  not  even  subsequently  become  an  unlawful assembly.   The  savage  shooting,  the  decapitation,   the consignment  of dead bodies to the fire and the flight  back with  the severed heads as trophies, are  circumstances  too glaring  to justify the merciful findings of the High  Court that the five murders arose out of a confrontation, that the common object of the assembly was not to commit the  murders and  that  therefore  none  of  the  accused  can  be   held vicariously  liable  for  the acts committed  by  the  other members of the assembly. The  High  Court missed the essence of  section  149.   That section  has  two  facets.   Every  member  of  an  unlawful assembly is by that section rendered liable for the  offence committed  by any member of the assembly in  prosecution  of its  common object.  That fixes vicarious liability  of  the members of an unlawful assembly for acts done in prosecution of the common object of the assembly.  But such liability is not  limited to the acts done in prosecution of  the  common object  of the assembly.  It extends even to acts which  the members  of the assembly "knew to be likely to be  committed in prosecution of that object." The High Court having  found that the common object of the assembly was to re-divert  the water by use of force, if necessary, and that Mahipat  Singh and  his  followers  had armed  themselves  with  guns  and-

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Gandasas  for carrying out that object, the  conclusion  was unavoidable  that the members of the assembly knew that  the prosecution  of even the limited object of the assembly  was likely  to  result in the murder of  the  opposition.   This latter aspect was overlooked by the High Court. There  can thus be no doubt that Mahipat Singh and  such  of the  respondents  whose presence is  established  formed  an unlawful  as, embly, that the common object of the  unlawful assembly  was to commit the murders of Gajraj Singh and  his men, that even assuming that the 423 common  object was to re-divert the water, if  necessary  by the  use of force, the members of the assembly knew that  in prosecution of such an object, murders of the opponents were likely  to be committed and therefore, every member  of  the unlawful  assembly would be vicariously liable for the  acts committed by any member of that assembly. Three  of the respondents: Niwedan Singh, Bhikham Singh  and Nawab  Singh  have been convicted by the  High  Court  under section  201 read with section 149 on the basis of  evidence showing that they beheaded the victims, severed their  limbs and threw their bodies in the raging fire.  Two more,  Karam Singh  and  Arjun Singh, have been  convicted  similarly  as their  presence was clearly established.  The former  had  a spear  injury on his chest while the clothes of  the  latter were  stained  with  human blood.   If  these  accused  were members  of  the unlawful assembly and had taken  a  leading part either in the first or the final stage of the incident, they  cannot  escape  their  liability  for  the   quintuple murders.   There  was  but one  unlawful  assembly  and  its members were animated by a unity of purpose.  Some fired the fatal  shots,  some severed the limbs of the  victims,  some threw the dead bodies into the fire and some led the victory march parading the heads of victims as prizes.  But  whether one  did  this or that act, there was identity  of  interest among  the  members of the unlawful assembly and  they  were actuated by a common object.  Their varying participation in the  different  stages  of  the  incident  was  directed  at achieving  the common object-first the murders and then  the destruction of evidence establishing the murders.  The steps and  therefore the acts in prosecution of the common  object were manifold, but the incident was one. The  High Court has itself found that : "all those who  took part  in  the incident along with Dev  Chand,  Karan  Singh, Arjun Singh and the Gandasa-men also took part in taking the dead bodies to the field of Bedari and tried to do away with the  evidence  of  the murders by  removing  the  heads  and burning the dead bodies." We are unable to appreciate how in view  of this finding the High Court could say in  the  very next sentence that their conviction "under section 302  read with section 149, I.P.C., has to be set aside". This part of the High Court’s judgment therefore requires to be reversed.  In addition to their conviction under  section 201 read with section 149 and for the other minor  offences, the  five respondents mentioned above shall stand  convicted under section 302 read with section 149, Penal Code. As  regards sentence, a plausible distinction may  be,  made between the cases of Niwedan Singh, Bhikham Singh and  Nawab Singh oil the one hand and of Karan Singh and Arjun Singh on the  other.  The three first named are proved to  have  been armed with Gandasas.  The High Court has found-in  agreement with  the  view  taken by the trial  court  that  there  was "reliable  corroboration"  to  the  evidence  of  the   eve- witnesses  in  regard  to the part  played  by  these  three persons  They  decapitated  the dead bodies  and  threw  the

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dismembered bodies 424 into the fire.  Decapitation of a dead body is of course not murder,  for section 300 of the Penal Code shows  that  only ’homicide’  though  culpable homicide, can be  murder.   But considering the grisly behaviour of these three  respondents there  can  be no doubt that they were  the  more  prominent members  of the unlawful assembly and without  their  active participation  the  assembly  could not  have  achieved  its common  object.   We  therefore restore  the  order  of  the Sessions Court imposing the sentence of death and the  other concurrent  sentences  on Niwedan Singh, Bhikham  Singh  and Nawab Singh. Karan Singh and Arjun Singh were undoubtedly members of  the unlawful  assembly but the evidence is not clear  enough  to show  how they were armed or if at all.  The Sessions  Court was  therefore justified in imposing the lesser sentence  of life imprisonment on them.  We confirm that sentence and the other  concurrent sentences imposed on them by the  Sessions Court. As regards the remaining three respondents, Mahendra  Singh, Malkhan  Singh and Bachan Singh, the High Court  appears  to have felt considerable doubt about their presence.  Some  of the  absconding  accused were also armed with guns  and  the evidence is not clear either regarding the presence of these three  accused  or  about  the acts  alleged  to  have  been committed  by  them.  The two eye-witnesses were  so  placed that  they  may not have been in a position to  notice  that Mahendra  Singh, Malkhan Singh and Bachan Singh  came  along with  Mahipat Singh and others or that they were armed  with guns.   Left to ourselves, a different view of the  evidence may  not be ruled out but that is not  enough  justification for  interfering with the order of acquittal passed  by  the High Court.  The :finding of the High Court in regard to the three  respondents  cannot be characterized as  perverse  or against  the weight of evidence.  We therefore  confirm  the order of acquittal passed by the High Court in their favour. In  the  result, Criminal Appeal No. 10 of  1971  is  partly allowed.   The  acquittal  of respondents  1  to  3  therein (Mahendra   Singh,  Malkhan  Singh  and  Bachan  Singh)   is confirmed.   Respondents  4  to 6  therein  (Niwedan  Singh, Bhikam Singh and Nawab Singh) are sentenced to death for the offence under section 302 read with section 149, Penal Code. The  sentences imposed on them by the Trial Court for  other offences shall run concurrently. Criminal Appeal No. 11 of 1971 is allowed to the extent that the  respondents therein, Karan Singh and Arjun  Singh,  are sentenced  to  imprisonment for life for the  offence  under section  302 read with section 149, Penal Code.   The  other sentences  imposed  on  them by the Trial  Court  shall  run concurrently with the sentence of life imprisonment. V.P.S.                                               Appeals partly allowed. 425