Ramu Gope & Ors Vs. State Of Bihar
[1968] INSC 261 (29 October 1968)
29/10/1968 SHAH, J.C.
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.
CITATION: 1969 AIR 689 1969 SCR (2) 558
ACT:
Indian Penal Code, 1860, ss. 149,
302--Conviction by trial Court of H as one member of unlawful assembly under s.
302 for causing death of a person in
pursuance of common object and of others under s. 302 read with s. 149--High
Court acquitting H in appeal but confirming conviction of others--If conviction
sustainable.
HEADNOTE:
The appellants and one H were tried on the
charge that on July 2, 1962 they had formed an unlawful assembly and in
prosecution of the common object of the unlawful assembly i.e., to rescue their
cattle which had damaged the maize crop of one B and had on that account beer
detained by the villagers, made an assault on persons resisting the rescue
causing injuries to various persons including B as a result of which B died.
The Trial Court, relying on the evidence of certain witnesses, held that H had
caused injuries with a spear to B which resulted in her death. It therefore
convicted H of an offence under s. 302 I.P.C. and the appellants for an offence
under s. 302 read with s. 149 I.P.C. The High Court appeal acquitted H as it
entertained a doubt about his presence in the unlawful assembly, but confirmed
the conviction of the other appellants.
In appeal to this Court it was contended on
behalf of the appellants that because of the acquittal of H, the conviction of
the other appellants for an offence under s. 302 read with s. 149 I.P.C. could
not, in law, be sustained;
when according to the prosecution case H was
responsible for causing the: death of B and he was acquitted, the appellants
who were charged with sharing the common object of the unlawful assembly could
not be convicted for the vicarious liability arising out of the offence
committed in prosecution of the common object of the unlawful assembly.
HELD: Dismissing the appeal:
The order of conviction of the appellants for
the offence under s. 302 read with s. 149 I.P.C. was not rendered illegal
because H was held not to have been a member of the unlawful assembly. [56.2 B]
There was clear evidence to show that B was one of the persons upon whom an
attack was made and injuries inflicted by the unlawful assembly of which the
appellants and others were members. On the findings of the High Court, the
offender who actually caused injuries to B could not be ascertained: it follows
that the injuries were, caused to B by some members of the unlawful assembly.
[561 H] Failure to prove the presence of the named offender among the members
of the unlawful assembly will not affect the criminality of those who are
proved to be members of the assembly if the other conditions of the
applicability of s. 149 I.P.C. be established. [56.1 A]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 145 of 1966.
559 Appeal by special leave from the judgment
and order dated January 29, 1966 of the Patna High Court in Criminal Appeal No.
231 of 1963.
D. Goburdhun, for the appellants.
B.P. Jha, for the respondent.
The Judgment of the Court was delivered by
Shah, J. At mid-day on July 2, 1962, an unlawful assembly about 30 persons
armed with lethal weapons made an assault upon certain villagers of Mananki
Khandha who were engaged in agricultural operations and caused injuries to six
persons. Budhia one of the persons injured died as a result of the injuries, a
few hours after the assault. The seven appellants in this appeal and one
Harihar Gope were tried before the Additional Sessions Judge, Patna, for
offences under s. 302 read with ss. 149, 147, 148, 323, 324, 325 read with 34
and 326 I.P. Code, on the charge that they had formed an unlawful assembly and
had committed rioting and in prosecution of the common object of the unlawful
assembly, viz. to rescue their cattle which had damaged the maize crop of
Budhia and had on that account been detained by the villagers, and to assault
persons resisting the rescue, and had caused injuries to the victims as a
result of which Budhia died. The Sessions Judge held, relying on the evidence
of four witnesses P.Ws. 5, 8, 12 and 18, that Harihar Gope had caused injuries
with a spear to Budhia which resulted in her death. He accordingly recorded an
order of conviction against Harihar Gope of the offence under s. 302 I.P. Code
and against the other appellants for the offence under s. 302 read with s. 149
I.P. Code.
The High Court of Patna in appeal acquitted
Harihar Gope for the offence under s. 302 I.P. Code for they entertained doubt
about Harihar Gope's presence in the unlawful assembly in question. The High
Court observed that Harihar Gope was a resident of another village and had no
reason to bring his cattle to the village .Mananki Khandha for grazing,. and
that the name of Harihar Gope was not mentioned in the first information which
was given at the police station in the presence of the witnesses who deposed to
the assault made on Budhia by Harihar Gope. The State has not appealed against
that order of acquittal.
The High Court has however, confirmed the
conviction of the other appellants for the offence under s. 302 read with s.
149 I.P. Code.
In this Court, counsel for the appellants
contends that because of the order of acquittal passed by the High Court in
favour of Harihar Gope, conviction of the other appellants for the offence
under s. 302 read with s. 149 I.P. Code cannot, in law, be sustamed. Counsel
argues that if Harihar Gope who was according to the case of the prosecution
responsible for causing the death of Budhia is acquitted the appellants who
were charged with sharing the common object of the unlawful assembly cannot be
convicted for the vicarious liability arising out of the offence committed in
prosecution of the common object of the unlawful assembly. There is no
substance in that argument. The case for the prosecution when analysed consists
of four parts--(1) that there was an unlawful assembly of 30 persons the common
object of which was to forcibly rescue cattle detained by the villagers of
Mananki Khandha and to beat up all those who resisted; (2) that six villagers
of Mananki Khandha were beaten up by the members of the unlawful assembly and
Budhia died in consequence of the injuries suffered by her; (3) that the
injuries were caused to the six victims by the members of the unlawful assembly
in prosecution of the common object of the unlawful assembly or the injuries
were such that the members of the assembly knew to be likely to he caused; (4)
that Harihar Gope was a member of the unlawful assembly, and he caused injuries
to Budhia in prosecution of the common object of the assembly in consequence of
which she died. The result of the findings of the High Court is that the first
three parts are made out but not the last. On that account however we are
unable to hold that the appellants who are proved to be members of the unlawful
assembly escape liability for conviction under s. 302 read with s. 149 I.P.
Code. On the finding recorded by the High
Court it inevitably follows that fatal injuries were caused to Budhia by a
member of the unlawful assembly which the members of the assembly knew to be
likely to be caused in prosecution of the common object of the unlawful
assembly. The State, however, failed to establish that it was Harihar Gope who
caused those injuries. Failure to establish that a member or members of the
unlawful assembly named by .the witnesses for the State cause the particular
injury which resulted in the death of Budhia will not result in the rejection
of the case of the State against persons proved to be members of the unlawful
assembly, if the common object of the unlawful assembly and the commission of
the offence in the prosecution of the common object or which the members knew
to be likely to be committed be proved.
Where a member of an unlawful assembly is
named as an offender who committed an. offence for which the members of the
unlawful assembly are liable under s. 149 I.P. Code, and the evidence at the
trial is insufficient to establish that the named person committed the act
attributed to him, he may still be convicted of the offence if it is proved
that he was a member of the unlawful assembly and that the act was done by some
member of the assembly in prosecution of the common object or which the members
knew was likely to be committed in prosecution of that 561 object. In our
judgment, failure to prove the presence of the named offender among the members
of the unlawful assembly will not affect the criminality of those who are
proved to be members of the assembly if the other conditions of the
applicability of s. 149 I.P. Code be established. If the Court refuses to
accept the testimony of witnesses who speak to the presence of and part played
by a named offender, the weight to be attached to the testimony of those
witnesses insofar as they involve others may undoubtedly be affected, but it
cannot be said that because the testimony of witnesses who depose to. the
assault by the named offender is not accepted, other members proved to be
members of the unlawful assembly escape liability arising from the commission
of the offence in prosecution of the common object of the assembly.
The High Court found that on the day in
question more than 30 persons formed an unlawful assembly, the common object of
which was to rescue cattle detained by the villagers of Mananki Khandha, and to
kill those who resisted, and that members of the unlawful assembly committed
'an assault on the villagers and severely beat up the villagers including
Budhia in prosecution of the common object. The offence being such that it was
known to be likely to be committed, every person who was a member of that
unlawful assembly at the time of the commission of the offence would by virtue
of s. 149 I.P. Code be guilty of the offence committed. The argument that
Harihar Gope alone had the object of causing the death of Budhia cannot on the
evidence be accepted as correct. The object to beat up and kill those who
resisted the rescue of the cattle detained was according to the case for the
prosecution common to all members of the unlawful assembly, and that object was
established by abundant evidence. Proof of the common object of the unlawful
assembly did not depend upon the presence therein of Harihar Gope. Failure to
establish that Harihar Gope was a member of the unlawful assembly did not, in
our judgment, affect the liability of the persons proved to be members of the
unlawful assembly for the acts done in prosecution of its common object, or
which they knew to be likely to be committed in prosecution of the object
thereof.
When a concerted attack is made on the victim
by a large number of persons it is often difficult to determine the actual part
played by each offender. But on that account for an offence committed by a
member of the unlawful assembly in the prosecution of the common object or for
an offence which was known to be likely to be committed in prosecution of the
common object, persons proved to be members cannot escape the consequences
arising from the doing of that act which amounts to an offence.
There is clear evidence on the record to show
that Budhia was one of those persons upon whom an attack was made by the
unlawful assembly of which the appellants and others were members.
562 In the assault made by the members of the
assembly Budhia as well as other persons were injured. On the findings of the
High Court, the offender who actually caused injuries to Budhia cannot be
ascertained: it follows that the injuries were caused to Budhia by some member
of the unlawful assembly, and that Budhia succumbed to those injuries. In our
judgment, the order of conviction of the appellants, other than Harihar Gope,
for the offence under s. 302 read with s. 149 I.P. Code is not rendered
illegal, because Harihar Gope is held not to have been a member of the unlawful
assembly.
The appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.
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