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.
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
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 ”
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
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
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
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
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.