PETITIONER:
SUKHA AND OTHERS
Vs.
RESPONDENT:
THE STATE OF RAJASTHAN.
DATE OF JUDGMENT:
05/04/1956
BENCH:
BOSE, VIVIAN
JAGANNADHADAS, B.
AIYAR, N. CHANDRASEKHARA
CITATION:
1956 AIR 513 1956 SCR 288
ACT
Unlawful Assembly-"Common intention" and "Common object"
-Distinction-Duty of a Court of fact-Indian Penal Code (Act
XLV of 1860), ss. 34,149.
HEADNOTE
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 deve-
loped 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 unlawful assembly.
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.
JUDGMENT
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
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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 respondent.
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
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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 other.
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
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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 assaulted.
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 prosecution case.
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
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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,
1. Chhotiya
2. Seruri
3. Parsia
4. Mana
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
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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 as-
saulting 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
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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 regard-
ing 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 persons.
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
assembly".
But the learned Judge only accepted this story in part. He-
believed 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
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instigation in toto. 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
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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.
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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 themselves.
Next, take the High Court’s finding about incitement. They
have rejected the version given by the prosecution witnesses
because they hold that the
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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
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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 common object.
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 illtreat
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
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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 assembly.
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 common.
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
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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.
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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.
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