STATE OF BIHAR versus MATHU PANDEY & ORS.

STATE OF BIBAR

MATHU PANDEY .t ORS.

Ap~il 23, 1969

(S. M. SiKRl, R. S. BACHAWAT AND V. IlutASWAMI, JJ.]

Jndia11 Penal Codt, 1860, s. 302 rtad with s. 149 and Ss. 103, 99-Parry of accused persons preventing theft from land by another group-Causing death of two persons In attacking party-I/ unlawful tmembly and committed offence uruler s. 302 read with s. 149-Whether entitled l-0 exercise right of private defence undtr s. 103 and causing deaJh.

In proceedings against the accmed respondents the prosecution c:uo wu that on certain land belonging to one where some of his men wae pthering fruits, the respondents, armed with bhallas, lathis, etc., attacked these men killing two of them and inj~ others. Thc trial coon con-victed the respondents under s. 302 read wuh s. 149 I.P.C. of the murder of the I\\ o deceased persons and of offences for inflicting injuric3 on other persons. The respondent<" appeal 10 · rhe High Court was allowed and that C.urt set aside all the convictions and sentences. The Hi&h Court found that the land in question was in the possession of one of the respon-dents and that on !he date of occurrence, rhe members ot the prooccutioo party including the murdered victims committed thefto of fruits on the land and that the respondents had !he right df private defence of property against rhe theft; the theft of the fruits wu committed under such circuma-tances as might reasonably cause apprehension that death or grievous bodily h!!T! would be the consequence if the ri¥ht of private defence wu not exercised. Accordingly, the reopondenlJ' ngbt of private defence <Ii property extended under s. 103 1.P.C. to voluntarily causing dcarh of the two murdered victims subject to the r .. trictlons mentioned in s. 99.

In appeal to this Ol'ut against the acquittal of the respondents, it was contended that they were m•mbers of an unlawful assembly pros.-:Jt-lng the common object of forcibly preventin' the two deceased from collectini fruit from the land in queatioo and 1f necessary in causing the murder of the said two persons for the purpose; that some of them ca111-ed the murder of the two victims and .that thereby all of them committed olfences under s. 302 read wirh s. 149.

HELD : The re•pondenrs could 001 be convicled under s. 302 read with s. 149 J.P.C .. nor w•s it possible to convict them under '· 302 read with '· 34.

In orJer to attract the provisions of s. 149 the prosecutiou must estab-Iish that there was an unlawful assembly and that the crime was commit-ted in prosecution of !he common object of the ...embly. Under the fourth clause of s. 141 an assembly of five or more persons is an unlaw-ful assembly if the common object of its members is to enforce any right <>r supposed right by means of criminal foree or show of criminal force to any person. Sec1ion 141 must be read with S.. 96 to 106 dealing with the ri~ht of private de'fence. Under '· 96 nolhin& is an olfeoce whicb is done rn the exercise of the right of private defence. The a.ssertiOll of risJit of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or suppooed right" in the founh clause of s. 141. [362-C]

As it bad been fOllDd in the present case that the land in question was in the possession of one of the respondents, the object of the respon .. dents' party was to prevent the commission of theft of the fruits in exer-cise of their right <if. private defence of property. This object was not un. lawful. Nor was it possible to say that their common object was to kill the two deceased victims. Those who killed them exoeeded the right of private defence and may be individually held responsible for the murd~rs. But the murders were not committed in prosecution of the common obiect of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object. The accused respondents could not be made constructively responsible for the murders under s. 302 read with s. 149. [363-B]

Kapildeo Singh v. The King, [1949-50] F.C.R. 834; Kishori Prsad & Ors. v. State of Bihar Cr. Appeal No. 191 of 1966 deed. on 5-12-1968; and Gurudittamal, v. State of U;P. A.I.R. 1965 S.C. 257; referred.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 203 of 1966.

Appeal by special leave from the judgment and order dated April 5, 1 ~66 of the Patna High Court in Criminal Appeal No. 602 ot 1963. D. P. Singh, for the appellant.

Nur-ud-din Ahmed and D. Gob•trdhun, for the respondents.

The Judgment of the Court was delivered by

Bacbawat, J. The prosecution case was that Bhaiya Ramanuj Pratap Deo was the proprietor of village Phatpani and owned and possessed bakasht and gainnazura lands therein including plot no. 1311 and the mahua trees standing thereon. On April 10, 1962 at 3 p.m. his employee PW 33 Bindeshwari Singh was in charge of collection of mahua fruits in plot no. 1311 and the · victims Ram Swarup Singh and Ramdhari Singh were supervising the collection. PW 1 Dhaneshwari, PW 2 Deokalia, PW 3 Dewal, PW 4 Rajmatia, PW 6 Udal Singh, PW 7 Border Singh, PW 8 Meghan Chamar, PW 9 Ram Dihal Kharwar, PW 10 Ram Torai Kharwar, PW 11 Manan Singh and PW 13 Jhagar Khar-war were cbllecting mahua fruits when suddenly accused Mathua Pandey, Kunda! Pandey and Muneshwardhar Dubey armed with garassas, Chandradeo Pandey, Dayanand Pandey and Nasir Mian armed with bhalas and Bife Bhogta, Thegu Bhogta, Nageshwardhar Dubey and Uma Shankar Dubey armed with lathis surrounded Ramswarup and Ramdhari and assaulted them with their weapons. Dewal also was assaulted by Bife and Thegu and suffered minor injuries. Ramdhari died on the spot. Ramswarup died while preparations were being made to carry him to the hospital ·

Bindeshwari lodged the first information report at 8 p.m. on the same date. On April 14, 1962 'accused Mathu gave report

at Nagaruntari hospital. He said that· on April 10, 1962 at 3 "Jl.m. while he was returning -home, he was assaulted with lathis, garassas and bhalas by the employees of the Bhaiya Saheb.

1962 at

The following- injuries were found on the dead body of Ram-swj!rup Singh : "( l) abral!ion 1 :¥' x H" with ecchymosis on anterior aspect of right knee joint, ( 2) another ·abrasion :¥' x t" with ecchymosis on anterior aspect of right leg, (3) small abra-sion with eccliYmosis on anterior aspect of left knee joint, ( 4 )· an incised wound 4" x i" x scalp on anterior aspect of the left side of the head, (5) lacerated wound 3t" X '1/3" X scalp with ecch)rmosis on . right side of head and ( 6) penetrating wound with clean cut margins 2t" X l" X abdominal ·cavity placed1rans-versely on right hypochondrium just right to mid line with stomach and loop of large bowel _bulging out of it." On opening the abdominal wall it was found that the peritoneum was con-gested and the, stomach was perforated on its anterior wall. In-juries 1, 2, 3 and 5 were caused by hard and blunt subst8jnl;e such as lathi. Injury no. 4 was caused by sharp cutting weapon such as garassa. Injury no. 6 on the .abdominal cavity was caused by some sharp pointed weapon with sharp cutting margin such as bhala. The death was due to sh0«k and internal haemorrhage caused by the abdominal wounds.

The following injuries were found on the dead body of Ramdhari Singh : "(1) the helix of left ear was cut; (2) lace-rated wound :¥' x 1/10" x 1/10" with ecchymosis on the Otiter part of the left eye brow, ( 3) punctured wound with clean cut margins 2t"X l" X 1 t" on left thigh belo.w its middle, ( 4) punc-tured wound with clean cut margin 1" X !-" X 1" on posterio: as-pect of the left thigh in its middle, and ( 5) penetrating wound with cleari cut margins 2¥' x 3/ 4" x abdominal cavity on right side of the abdomen. !The loops of intestines were bulging. out -0f this 'opening. Irijyry no. 2 was caused by hard and blunt sub-stance such as. lathi. 'The other injuries were caused by sharp pointed weapon witli sharp cutting edge such as bhala. Death was due to shock and internal haemorrhage caused by injury no. 5 the aJ?dominhl wound. ·

The trial court convicted the · accused-respondents Mathu, Chandradeo, Kunda!, Dayanand, Bife, Thegu, Nasif, Munesh-wardh~~ Nageshwardhilr, .Uma~haukardhar under s. 302 read Y'.f\h:;S,;);4JJ,!?f .• the:1!/~i.a~· 'f'?n~ C~e for the II!un;lers, <?f ~am­dl:ian ·~d :~amswaruJl an sentenced them· to ngorous llllpnson-men(-fopiJ.ife 'J!;ich.. Bue~ . egu, N ageshwardhar and umashan-kardfial:;/~'fe" 'oonvicte<!>unaer · s. 147 of the Indian Penal "Code and sentenced to'.iigoroiis llnpriwnment for six months each. The remaining resP.9ndents WC?re convicted under s. 148 of the Indian Penal. Code 'and sent.enced to rigorous imprisonment for one year

each. Bife an4 Thegu were convicted under s. 323 of the. Indian Penal Code for causing hurt to Dewal and sentenced to ngorous . imprisonme111t for six months each. The sentences ct each res. · poildent were to run concurrently, The trial court held that ( ~) Bhaiya Saheb was in possession of plot no. 1311; (2) while Ramswarup and '.Ramdhari were collecting mahua o~ ~e .Plot, n the respoildents armed with bhalas, garassas and lathis inflicted fatal injuries on them with view to forcibly prevent them from collecting the mahua, (3) Thegu and Bife assaulted pe':"al with lathis, ( 4) the accused persons knew that there was likelihoo4 of murders being COllllllitted in prosecution of the common object, and ( 5) the assailants inflicted the injuries on Ramswarnp and Ramdhari with the intention of murdering them. The respoildents filed an appeal in the High Court of Patna. The High Court allowed the appeal and set aside all the convic-tions and sentences. The High Court found that ( 1). respondent Chandradeo was the thikadar of plot no. 1311 and was in posses-sion of the mahua trees standing thereon, ( 2) on the date of the occurrente, the members of the prosecution party including Ram-dhari and Ramswarup committed theft on the fruits of the mahua trees, and the respondents had the right of private defence of property against the theft; ( 3) Ramswarup carrying tangi and Ramdhati carrying danta caused severe injuries to respondent Mathu on his head, leg and that while doing so they were not defending themselves; Mathu became unconscious. He regain. ed consciousness on April 14, 1962. ( 4) the, theft of mahua fruits was collll11itted under such circumstances as might reason-ably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. Accordingly, the respondents' right of private defence of property extended under s. 103 of the Indian Penal Code to voluntarily causing death to :Ramdhari and Ramswarnp subject to the res. ' trictions mentioned in s. 99; (5) the person or persons who cau~ t!te two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. These findings are based on adequate evidence and are not shown to be perverse. In this appeal under art. 136 of . the Constitution from an order of acquittal passed by the High Court, we are not inclined to interfere with the above findings. The question is whether in these circumstances the High Court rightly acquitted the appellants. .

The fatal woulids on the abdominal cavities of Ramdhari and Ramswarup were caused by bhalas. The prosecution case was that Chandradeo, Dayanand and Nasir were armed with bhalas., The High Court rightly. held that the prosecution failed to estab-lish that Chandradeo was armed with bhala. Tho proseeution witnesses said generally that all the respondents swroundod Ram-

dhari and Ramswarup and assaulted them. The prosecution case has been found to be false in material respects. It is not possible to record the finding that Cbandradco, Dayanand and Nasir were armed wilh bhalas. Some of the respondents were armed with bhalas but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Ramdhari and Ramswarup. Accordingly we cannot convict any of the respon-dents under s. 302. The only question is whether they can be con-victed under s. 302 read with either s. 149 ors. 34.In order to attract the provisions of s. 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the as&embly. Under the fourth clause of s. 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed light by means nf oriminal force or show of criminal force to any person. Section 141 must be read with ss. 96 to 106 dealing with the right of private defence. Under s. 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of right of private defence within the limits prescribed by law C&llllOi fall within the expression "to enforce any right or sup-posed right" in the fourth clause of s. 141. In Kapildeo Singh v. The King(') the High Coun had affinned the appellant's convic-tion and sentence under s. 147 ands. 304 read withs. 149, with-out considering the question as to who was actually in possession of the plot at the time of the occurrence. The High Court ob-served that the question of possession was immaterial and that the appellants party were members of an unlawful assembly, "as both sides were determined to vindicate their rights by show of force or use of force." The Federal Court set aside the convic-'1icln and sentence. It held that the High Court judge stated the law too loosely "if by the use of the word 'vindicate' he meant to include even cases in which party is forced to maintain or defend his ril!hts''. 'The assembly could not be designated as an unlawful-assembly if its object was to defend property by the use of force within the limits prescribed by law.

The charges against the respondents were that they "were members of an unlawful assembly in prosecution of the common object of which, viz .. in forcibly preventing Ramdhari Sin~h and Ramswarun Singh from collecting mahua from Barmania field ,.¢f village Phatnapi and if necessary in causing the murder of the said two persons. for the purpose. "that some of them caused the murders of Ramdhari and Ramswarup and that thereby all of them committed offences under s. 302 read with s. 149. We have found that respondent Chandradeo was in possession of plot

no. 1311 and the mahua trees standing thereon. The object of the respondent's party was to prevent the commission of theft of the mhua fruits in exercise of their right of private defence of property. This object was not unlawful. Nor is it possible to say that their .common object was to kill Ramdhari and Ram-swarup. Those who killed them exceeded the right of private 8 defence and may be individually held responsible for the murders. But the murders were not committed in prosecution of the com-mon object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object. The accused respondents cannot be made constructively responsible for the murders under s. 302 read with s. 149.

In Kishori Prasad & Ors. v. State of Bihar(') the High Court convicted the appellants under s. 326/149 of the Indian Penal Code though the appellant Hirdaynarain was in lawful possession of the western portion of plot no. 67 and the attempt by the pro-recution party to cultivate the same was high-handed. This Court set aside the conviction and sentence. Ramaswami J. observed :-

"In case where the accused person could invoke the right of private defence it is manifest that no charge of rioting under s. 147 or s. 148, Indian Penal Code can be established for the common object to commit an offence attributed in the charge under s. 14 7 or s. 148, Indian Penal Code is not made out. If any accused person had exceeded the right of private defence in causing the death of Chitanu Rai or in injuring Gorakh Prasad it is open to the prosecution to· prove the individual assault and the particular accused per-son concerned may be convicted for the individual assault either under s. 304, Indian Penal Code or of the lesser offence under s. 326, Indian Penal Code. The difficulty in the present case is that the High Court has not analysed the evidence given by th.e parties and given finding whether any or which of the appellants are guilty of causing the death of Chitanu Rai or of assaulting Gorakh Prasad. As we have already said, none of the appellants can be convicted of the charge of rioting under s. 148 or of the constructive offence under s. 326/149,.Indian Penal Code."

We accordingly hold that the respondents cannot be convicted under s. 302 read with s. 149, Indian Penal Code. Nor is it possible to convict them under s. 302 read with s. 34. The High Court rightly found that the respondents wanted to prevent the

[-1970] 1 S.C.R.

cgllection· obnaJiua fruits and that common intention of all of • thetJ;( fe. murder Ramdhri and Ramswarup was not established .

. ;The case· of Gurudittamal v. State of U.P,([1 ]) jg distinguish-able; In that case the Co~ foµnd that ( 1} the a~cused persons who were in possession of field bad exceeded the _Egb.t of pri-vate defence of property by murdering four perStins who were peacefully harvesting the crops standing on the field and ( 2) each of the. four appellants killed one member of the p(Osecution party and each of them indiyidually committed an offence under s. 302 (see paragraph 6 and end of paragraph 14). In these circumstances, the Court upheld their conviction and sen~ce unller s. 302. The Court also found that the appellants had the ·Common intention to kill the victims and could be convicted under s; 302 'read with s. 34 (see, paragraph 12 and 9). In the present ciwe, .none of the respondents can .be collvicted under s. _302. A• -a Cotri!:tion. Intention to murder Ramdhari or Ramswarup is ·not ~tablished, they cannot be convicted under s. 302 read with· . ~. 34.

sen~ce

In , the result, the appeal . . is· dismissed. R.K.P.S.

Appeal dismissed:

o} AI'.lt. 1965 s.c. m.