Sukha & Ors Vs. The State of
Rajasthan  INSC 24 (5 April 1956)
BOSE, VIVIAN JAGANNADHADAS, B.
AIYAR, N. CHANDRASEKHARA
CITATION: 1956 AIR 513 1956 SCR 288
intention" and "Common object" -Distinction-Duty of a Court of
fact-Indian Penal Code (Act XLV of 1860), ss. 34,149.
Common intention required by s. 34 of the
Indian Penal Code and common object set out under s. 149, though they sometimes
overlap, are used in different senses and should be kept distinct. In a case
under s. 149 there need not be a prior concert and meeting of minds, it is
enough that each has the same object in view and their number is five or more
and they act as an assembly to achieve that object.
When a crowd assembles and there is an uproar
and people are killed and injured, it is only natural for others to rush to the
scene with whatever arms they can snatch. Some may have an unlawful motive but
others may not, and in such circumstances it is impossible to say that they
were all motivated by a common intention with prior concert. What a court of
fact should do in such a case is to find from the evidence which of them
individually had an unlawful object in view, or having originally a lawful
object in view developed it later on into an unlawful one and if it finds that
there were five or more such persons who acted together there would be an
Consequently, in a case where there were
circumstances from which the courts of fact could deduce that an unlawful
object developed with more than five to share it after the fighting started and
they were satisfied that it did, there was no reason why their concurrent
decisions should be set aside.
This court will be slow to entertain a
question of prejudice when details are not furnished; also, the fact that the
objection was not taken at an early stage will be taken into account.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 133 of 1955.
Appeal by special leave from the judgment and
order dated the 10th January 1955 of the High Court of Judicature at Jodhpur in
Criminal Appeals Nos. 57 & 83 of 1953 arising out of the judgment and order
dated the 26th May 1953 of the Court of 289 Sessions Judge at Merta in Criminal
Original Case No. 1 of 1952.
Jai Gopal Sethi, K. R. Krishnaswami and K. R.
Chaudhry for the appellants.
Porus A. Mehta and P. G. Gokhale, for the
1956. April 5. The Judgment of the Court was
delivered by BOSE J.-Four persons were killed about 11 p.m. on the night of the
21st July 1951 and a number of others injured. This was said to be the result
of a riot that occurred in the village Dhankoli. Thirty six persons were
committed for trial. Of these, two died during the course of the proceedings.
The remainder were all charged under section 325/149 of the Indian Penal Code
and eleven were also charged under section 302/149.
The learned Sessions Judge acquitted twenty
five of the charge under section 325/149 and convicted nine. He acquitted all
the eleven who were charged under section 302/149 but convicted nine of them
under section 325/149.
The State did not appeal against the
acquittals of the twenty five under section 325/149 nor did it appeal against
the acquittals of two of the eleven who were charged under section 302/149 but
it appealed against the acquittals of the remaining nine who had been convicted
under section 325/149. These nine convicts also appealed. The High Court
therefore had two appeals before it, one against the acquittals of nine persons
under section 302/149 and the other by the same persons against their
convictions under section 325/149.
The High Court dismissed the appeal of the
convicts and allowed that of the State. The convictions of these nine persons
were accordingly altered to ones under section 302/149 of the Indian Penal Code
and the lesser sentence of transportation was given to each.
It is admitted on both sides that there was
bad 290 blood in the village Dhankoli between a caste known as Baories on one
side and three other castes of the village namely, Jats, Dhobis and Khaties on
The case for the prosecution is that this was
due to a dispute over a field that belonged to some of the Jats.
There were some court proceedings about the
field in which Parsia (one of the Baories who was killed) had appeared against
the Jats. The accused Sukha, Gumana, Begla and Govinda were in particular
interested in this field and so bore a grudge against Parsia.
The defence also allege enmity. Their case is
that the enmity is due to the fact that the villagers decided not to employ the
Baories for watch and ward work in the village as they suspected that the
Baories were responsible for certain thefts that had occurred there. The other
castes in the village therefore did this work themselves by turns. This was
resented by the Baories and the allegation is that the Baories were responsible
for the fight and attacked some of the others in the village and that led to a
fight; but none of the appellants was concerned with it.
From this point it will be convenient to
divide the narrative into a series of numbered steps.
1.On the day in question, two of the Baories,
Chhotiya and Parsia, bad been to a neighbouring village to bid at an auction
where the field, which according to the prosecution engendered the dispute, was
being sold. They returned to their village about 11 p.m. and ran into the
accused Sukha and Gumana (both Jats). They were challenged and when they
disclosed who they were, Sukha and Gumana cried out "kill them. They had
gone for the auction of the field." On that Sukha fired a gun which he had
with him and hit Parsia on the legs. Parsia fell down and Gumana bit him over
the head with a sword. He also hit Chhotiya over the head with a sword and
Chhotiya also fell down.
2.Parsia and Chhotiya at once cried out for
help and their cries, coupled with the sound of the gun fire, brought a number
of persons to the scene. The 291 number varies widely. Chhotia (P.W. 8) says 30
to 35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts it at 30 or 40 and so
does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks there were as many as 100
to 150. There are other estimates too, mostly in the neighbourhood of 30 to 40,
but the exact number does not matter because it is evident that a crowd
assembled. Those who did the attacking are said to have been about 30 or 40 but
it is clearly proved that several Baories were there and that some of them were
The point of stressing these facts is to
bring out the fact that most of the persons there did not assemble for an
unlawful purpose and so did not form an unlawful assembly.
The problem is to sort out those who formed
an unlawful assembly from those who did not. Mr. Sethi argued that there is no
evidence to support a finding that there was an unlawful assembly because it is
impossible to determine who came to attack and who did not. But we will deal
with this later. For the present, we will continue our narrative outlining the
3.After the gun was fired and Parsia and
Chhotiya struck down, a large number of persons rushed to the scene and, among
them, some 30 or 40 were armed with various kinds of weapons. Of these, Kamla,
Balia, Todia and Bhawana (all Jats) had pharsies, Gumana, Govinda and Jodbiya
(also Jats) had swords and the rest (Jats, Dhobis and Khaties) had lathis.
These persons also attacked Chhotiya and Parsia.
4.The cries of Chhotiya and Parsia attracted
Mana, Govinda, Pemla, Rambuxa and Gangli and some others. These persons are
Baories. This crowd of 30 or 40 turned on Mana and Govinda and attacked them.
Sukha then fired his gun a second time and hit Mana on his left hand.
5.In the meanwhile, Ganesh and his wife
Seruri (Baories) arrived and said "don't beat, don't beat". Sukha and
Gumana said that they should also be beaten and thereupon these 30 or 40
persons started to beat them too and they fell down.
6. After this, Parsia's wife Lacbhuri came
there 292 and some 10 or 1 1 persons out of the original 30 or 40 started to
chase her. But she ran away and managed to escape with only a slight beating.
7.While this was happening, the five Baories
who had been felled to the ground (Parsia, Ganesh, Mana, Govinda and Seruri)
started to cry out. The ten or eleven who had chased Lachhuri came back and on
hearing the cries of these five on the ground, Sukha and Gumana said that they
were crying and should be killed outright. On that these eleven persons divided
into three groups and attacked the five on the ground as follows:
Parsia was beaten by Sukha (with a pharsi),
Jeewana (dangri) and Chokla (dangri).
Mana and Govinda were beaten by Gumana
(sword), Balia (pharsi) and Jankiya and Naraina (lathis).
Ganesh was beaten by Bhawana (dangri),
Govinda (sword), Kumla (pharsi) and Begla (dangri).
All four died on the spot.
The accused were charged as follows. One
group consisting of 25 persons were charged under section 325/149 of the Indian
Penal Code for intentionally beating, along with the other accused,
5. Govinda and 6. Ganesh.
At a later stage, the following sentence was
added to the charge:
"which you inflicted as a member of an
unlawful assembly in prosecution of its common intention". These twenty
five were acquitted and we are not concerned with them except to note that they
were not concerned with that part of the occurrence which we have set out as
steps 6 and 7 above.
The charge against the remaining eleven can
be divided into two parts. Under the first, each, except Sukha, is charged with
beating the Baories Parsia, Mana, Govinda, Ganesh, Chhotiya, Seruri, etc.
"along with other accused". Five of the eleven are said to 293 have
beaten them with "swords and lathis"; another five "with lathis,
etc." while the eleventh, Sukha, is said to have fired at Parsia and Mana
"as a result of which they fell down". Then each charge continues-"and
when all had fallen down as a result of these injuries".
After that the charges divide off into three
groups: One group charges (1) Gumana, (2) Naraina, (3) Balia and (4) Jankiya
with beating Govinda and Mana, "who were groaning, with lathis with intent
to kill them till they were actually killed". The next group charges (1)
Jeewana, (2) Sukha and (3) Chokhla with hitting Parsia with lathi blows
"with intent to murder him till he died". The third group charges (1)
Begla, (2) Govinda, (3) Kumla and (4) Bhawana with assaulting Ganesh with
lathis with intent to murder till he died.
The following sentence was also added in the
end of each of these charges:
"And you did this as a member of an
unlawful assembly in prosecution of its common intention".
There has been some confusion in both the
Sessions Court and the High Court between "common intention" and
"common object". It is true the two sometimes overlap but they are
used in different senses in law and should be kept distinct.
In a case of unlawful assembly or riot we are
concerned with a common object. However, we are satisfied that has not caused
any prejudice. But the reason why we have set out these charges at some length
is because counsel for the appellants argued that the prosecution case is that
there were two separate assemblies, one of twenty five persons to beat six
specific persons and another of eleven to kill them in three groups. He argued
that the twenty five who constituted the first assembly have all been
acquitted; that the only material from which an unlawful assembly can be
inferred in the other case is the instigation of Sukha and Gumana for a second
time after they bad returned from chasing Lachhuri. That story, he said, has
been disbelieved, so all must be acquitted.
It will be necessary at this stage to set out
the 294 findings of the two lower courts. The learned Sessions Judge starts by
rejecting the evidence of Ruga (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3)
on the question of identification of any of the accused and the evidence of
Arjun (P.W. 4) about the conspiracy to beat up the Baories.
But he finds that the evidence of the Baori
witnesses, Chhotiya (P.W. 8), Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W.
12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent "so far as these
II accused are concerned regarding their beating 4 persons to death and causing
injuries to Lachhuri, Ganesh's wife, Seruri and Chhotiya " Later, he
states "From the evidence of these Baori witnesses................. it is
found that these eleven accused were involved in the beating of the injured
Whether they formed part of a bigger assembly
is not now material because I have already discussed the cases of other accused
and given them benefit of doubt. These eleven accused even amongst themselves
being more than five in number could be regarded as members of an unlawful
But the learned Judge only accepted this
story in part. Hebelieved Chhotiya (P.W. 8), Seruri (P.W. 12), Gangli (P.W. 13)
and Pemla (P.W. 14) in so far as they stated that Sukha had a gun and that
Sukha used it against Parsia and Mana, but he did not accept the evidence of
Chhotiya (P.W. 8) in so far as he said that Gumana hit Chhotiya with a sword.
He also rejected the prosecution version that the incidents occurred in two
parts, first with a bigger assembly that beat all the accused and next with a
smaller one that ran after Lachhuri and beat her and then returned to beat the
others to death at the instigation of Sukha and Gumana. On this part of the
case, the learned Sessions Judge found that " whatever beating was done
was done immediately after the scuffle between Chhotiya and Parsia and Sukha
and Gumana and Gumana and Naraina, and those accused who had arrived on the
spot. Nobody instigated anybody". (Para 103).
It was argued on behalf of the defence that
the learned Sessions Judge discarded the evidence about 295 instigation in to.
Counsel for the State, however, contended that this passage refers to the
second instigation which is said to have been given after the eleven had chased
and beaten Lacbhuri and returned to finish off the others who were lying on the
ground. We think that is right.
In paragraph 101 of his judgment the learned
Sessions Judge set out the fact that the prosecution witnesses divide the
incidents into two parts: one in which a larger assembly beat all the injured
persons and the other in which eleven killed the four deceased persons at the
instigation of Sukha and Gumana.
In paragraph 102 be set out reasons why he
was not able to believe this story. The first was because "Ladia (P.W. 11)
did not state in his statement before the police that after beating Lachhuri,
when ten or eleven persons had returned then at the instigation of Sukha and
Gumana the injured were again beaten to death".
Then, after setting out four more reasons,
the learned Judge reached the conclusion just enumerated in paragraph 103.
In paragraph 117 he said"Leaving Begla
and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia,
Jeewana, Chokhla, Bhawana Khati and Jankiya did commit rioting with the common
object of beating the Baories".
In paragraph 118 he said"I am not
convinced that the intention of all these accused was to murder the whole lot
of Baories.............." In para 119-"The accused did give sound
beating to the injured".
He concluded that no common object to kill
could be deduced but held that a common object to beat was clear. As he was
unable to determine which accused gave the fatal blows be convicted all under
section 302 read with section 149 of the Indian Penal Code.
We think it is clear from this judgment, read
as a whole, that the learned Sessions Judge disbelieved 296 the story of
instigation at any stage because if he had believed even the first instigation,
a common object to kill would have emerged.
We are unfortunately not able to obtain much
assistance from the judgment of the learned High Court Judges. They have not
analysed the evidence and have not reached clear findings about a common object
due in some measure to the fact that they do not appear to have appreciated the
difference between a common object and a common intention.
They hold that six witnesses can be relied on
to the extent that "the villagers were armed with guns, swords, farsies
and lathis". They do not believe all that these witnesses say because they
hold "Though, therefore, we do not believe that these eleven persons
deliberately murdered the four injured Baories who were lying there saying that
they should be killed, there is no doubt in our minds that these eleven persons
who have all been mentioned by these six witnesses were certainly seen taking
more active part in this incident".
Then they hold"We are, therefore,
satisfied on the statements of these witnesses that the incident took place in
the main as stated by them and that the prosecution has given the right version
of the affair".
Next, they hold that the fact that a large
number of villagers, including the nine appellants, turned up armed with
various weapons immediately they beard the quarrel between Chhotiya and Parsia
on the one side and Gumana on the other "shows that there must have been
some consultation from before and that these persons arrived in prosecution of
the common object.............." And they add this reason:
"There is also the evidence of the
prosecution witnesses that as the Baories came, some one or the other of these
accused incited the rest of the villagers to beat up the Baories".
From this they conclude that there was an
unlawful assembly with the common object of beating up the Baories.
297 This is very unsatisfactory. The learned
Judges were dealing with an appeal against an acquittal and though they have
allowed the appeal they have not been specific about which part of the evidence
they rely on in support of their findings nor do their conclusions follow
logically-from the premises on which they are based.
Take, for example, the finding about prior
consultation. In the first place, no prior consultation is required when a
common object is in question. The essence of the distinction between common
object and common intention lies there. In the next place, the six witnesses,
who are relied on, say that a crowd of 30 or 40 persons assembled. Among that
crowd were Baories because three Baories (other than Parsia and Chhotiya) were
killed and others injured. It is also evident that some of these Baories must
have had some sort of weapons because three of the accused had slight injuries
on their person and one a fracture. The evidence discloses that there had been
thefts in t the village. The uproar occurred at 11 in the night. In those
circumstances, it would be natural for the villagers to rush to the scene and
arm themselves with whatever came to band. Some may have been motivated by an
unlawful motive but many would not, and to deduce a common intention with prior
concert in such circumstances is impossible. A common object is different and
courts of fact are entitled to conclude on the evidence that has been accepted
that some of those who rushed to the scene went there with the object of
beating up persons whom they thought to be thieves and not merely to apprehend
them or defend their properties; in other words, that some of those persons
individually had an unlawful object in view. If each bad the same object, then
their object would be common and if there were five or more with this object,
then they would form an unlawful assembly without any prior concert among
Next, take the High Court's finding about
incitement. They have rejected the version given by the prosecution witnesses
because they hold that the 298 story about the second beating is an improvement
and also because they disbelieve the evidence that indicates that these eleven
persons deliberately murdered the four injured Baories.
But the only evidence about incitement is
that Sukha and Gumana called on the others to kill Barsia, and later to kill
the others. The incitement was quite clearly to kill and not merely to beat. If
this is rejected, then there is no evidence about incitement, so we are left in
the dark to know what the learned Judges based their conclusion on.
That has left us with the task of finding
whether there is, or could be, any proper basis for these convictions.
Now, as we understand the learned Sessions
Judge, he has believed the first part of the story which we have set out as
step No. I except the portion that speaks about an incitement to kill. He finds
that there was the meeting between Sukha and Gumana on the one side and Parsia
and Chhotiya on the other. He says"It can safely be deduced from the
incidents as related by the witnesses in this case that in the beginning the
fighting was between a couple of persons only and on hearing their cries their
relatives, friends and relations and other villagers reached the spot and some
of the villagers did beat the Baories".
Pausing there, it is evident that there was
no unlawful assembly when the beating started; nor can it be deduced that all
the persons who rushed to the scene, whether the number was 30 or 150, formed
an unlawful assembly. We therefore have to scan the evidence carefully to see
what happened after that. The finding is that the eleven accused who were
charged for the murder were all involved in the beating of the injured persons.
That satisfies one of the ingredients of rioting, namely the presence of five
or more persons. But that of course is not enough. There must in addition, be
an "assembly" and that assembly must have a "common object"
and the object must be "unlawful".
But a common object is different from a
common intention in that it does not require prior concert and 299 a common
meeting of minds before the attack, and an unlawful object can develop after
the people get there. It is not for us to re-assess the evidence in special
leave. All we can say is that there are circumstances from which courts of fact
could deduce that an unlawful object developed with more than five to share it
once the marpit bad started; and as two courts of fact are satisfied that it
did, there is no reason for us to interfere. Persons who had come there quite
lawfully, in the first instance, thinking there were thieves could well have
developed an intention to beat up the "thieves" instead of helping to
apprehend them or defend their properties; and if five or more shared the
object and joined in the beating, then the object of each would become the
This is not to say that all those present
were members of that assembly. The presumption of innocence would preclude such
a conclusion. Those who rushed to the scene in the circumstances disclosed must
be presumed to have gone there for a lawful purpose even if they were armed.
The apprehension of marauders who prowl the town at night and the defence of
person and property are lawful objects. But when that object is exceeded and
persons begin to beat up the suspects the act of beating becomes unlawful, for
private persons are no more entitled to beat and ill-treat thieves than are the
police, especially at a time when there is nothing beyond suspicion against
them. But if five or more exceed the original lawful object and each has the
same unlawful intention in mind and they act together and join in the beating,
then they in themselves form an unlawful assembly. There is no difference in
principle between this and a case in which the original object was unlawful.
The only difference is that a case like this is more difficult to establish and
must be scrutinised with greater care. But that scrutiny is here and we are
satisfied that there is evidence in this case on which courts of fact could
base the conclusion that they have reached.
Now, did these eleven persons constitute an
assembly or were they there individually without any 300 common factor to link
them together? That, we think, is easily answered. It is clear that each
(barring Sukha and Gumana who were already there) assembled at the spot because
of the cries of Parsia and Chhotiya and because of the noise of the fight. That
imports a common factor into their meeting and links them together as an
assembly. Their object in assembling may have been innocent but the fact that a
common factor like this induced them to come together constitutes them into an
"assembly" though not, on that evidence alone, into an unlawful
We next have to see whether any of them had
an unlawful object in view. The object of Sukha and Gumana was clearly
unlawful. Now the evidence which has been believed shows that the other nine
actually joined in the beating and that they did this after Sukha had fired his
gun at Parsia and Parsia had fallen to the ground. It also shows that these
others turned on Parsia's relations and friends when they came to their
support. Therefore, whatever the original object of each may have been, it
achieved a unity of purpose the moment the others joined in and continued to
assist Sukha and Gumana and helped them to beat up the other Baories who came
to Parsia's help. It is not a case of stray sporadic acts but indicates a certain
continuity of purpose, each striving to achieve the same end, namely either to
help Sukha and Gumana in beating up Parsia and Chhotiya and those who came to
help them or to join in the beating for ends of their own. But the commonness
of purpose is an inference of fact which courts of fact would be entitled to
make. It does not matter whether the others joined in because of an initial
instigation or whether, seeing the assault in progress, they joined in on their
own account, because so long as each bad the object of beating up Parsia and
Chhotiya and those who came to their assistance, that would make their object
The distinction between the common intention
required by section 34 of the Indian Penal Code and the common object set out
in section 149 lies just 301 there. In a case under section 149 there need not
be a prior meeting of minds. It is enough that each has the same object in view
and that their number is five or more and that they act as an assembly to
achieve that object. All these features are to be found in that part of the
evidence which has been believed. Therefore, on these findings which the courts
of fact are entitled to reach, the object of the assembly was unlawful, but up
to this point the highest common denominator was merely to beat and not to
kill. Up to that point, the convictions of the learned Sessions Judge under
section 325/149, Indian Penal Code, are unassailable.
The next question is whether, that being the
case, the convictions by the High Court under section 302/149 can be upheld.
Neither the Sessions Judge nor the High Court
believe that there was any common intention to kill, therefore the convictions
for the more serious offence can only be sustained under section 149 if it can
be shown (1) that an actual killing of some of the persons attacked was likely
to result from the beating which formed the common object and (2) that each
person so convicted knew that might be a likely result.
Now so far as Sukha and Gumana are concerned,
there can be no doubt. They started the fight with deadly weapons.
Sukha fired at least twice and bit two
persons. He himself may not have had an intention to kill and indeed the fact
that the wounds are on non-vital parts must be used as a factor in his favour,
but any person who carries a fire arm at that hour of the night and uses it and
then continues a fight after an excited crowd has assembled and when at least
nine of them rush in to join in the beating after his first shot must know
either that somebody is likely to deal a fatal blow or at least that the
cumulative effect of blows inflicted by a number of persons armed with lathis
is likely to cause death from shock. Riots of this kind are common and death
frequently results, therefore, not only was a killing a likely consequence of
such an assault conducted in this fashion but Sukha and Gumana as men of
ordinary intelligence must have known that.
302 Much the same considerations apply in the
case of the other appellants. They rushed in to hit persons who had already
been fired on and who had been felled to the ground. They were in the midst of
a crowd which could hardly have been calm and impassive and they joined in with
several others to beat them up. Any man of reasonable intelligence would have
known that somebody would be likely to be killed in a melee like that.
Therefore, the requisite knowledge can be imputed to them also.
Two questions remain. One was directed
against the reliability of that part of the evidence that has been believed.
The argument, for all its repetition, length and eloquence, was the hackneyed
one that when one part of a witness' evidence is disbelieved, it is unsafe to
act on the rest of his testimony. The answer is equally hackneyed, namely that
judges of fact have the right to do this and that this is not a court of appeal
when it acts under article 136. The findings about this are concurrent, so,
following our usual practice, we decline to review the evidence.
The other is that the absence of this in the
charge occasioned prejudice. We have recently decided that we will be slow to
entertain question of prejudice when details are not furnished; also the fact
that the objection is not taken at an early stage will be taken into account.
There is not a hint of prejudice in the petition filed by the appellants here
in the High Court for leave to appeal to this Court; nor was this considered a
ground for complaint in the very lengthy and argumentative petition for special
leave filed in this Court. The only complaint about prejudice was on the score
that there was no proper examination under section 342 of the Criminal
Procedure Code. We decline to allow this matter to be raised.
The appeal fails and is dismissed.