Holding

A conviction under Section 149 IPC is invalid unless the court records a clear finding of the common object of the unlawful assembly, which was absent in this case.

Summary

The appellants were involved in an irrigation dispute during which the deceased, Mainu Manda, prevented them from irrigating their land. Bhudeo Mandal, one of the appellants, struck the deceased, causing his death, while the other appellants were armed with lathis but caused no injuries. The Sessions Court convicted Bhudeo under Section 304 IPC (life imprisonment) and the others under Section 326/149 IPC (three years' rigorous imprisonment). The Patna High Court upheld the conviction under Section 326/149 but failed to record a finding on the common object of the alleged unlawful assembly. The Supreme Court held that a conviction under Section 149 IPC requires a clear finding of the common object and that the essential ingredients of Section 141 IPC must be established; since no such finding was made, the convictions were set aside and the appellants were acquitted.

Issues considered

Whether the conviction under Section 149 of the Indian Penal Code is sustainable without a clear finding of the common object of the unlawful assembly.
Whether the essential ingredients of Section 141 IPC were established in the present case.
Whether the High Court erred in upholding the conviction under Section 326/149 IPC without recording the nature of the common object.

Legislation cited

Indian Penal Code, 1860s. 141, s. 149, s. 304, s. 323, s. 325, s. 326

Subjects

Section 149 IPCunlawful assemblycommon objectconvictionappealirrigation disputecriminal law

Judgment

A

291
y
BHUDEO MANDAL & OTHERS
V.
B
STATE OF BIHAR

March 24, 1981

[S. MURTAZA fAZAL ALI, BAHARUL !SLAM, AND
.. ¥"' A. VARADARAJAN, JJ.)
c
Indian Penal Code 1860-S. 149·-Conviction under clear finding regarding
common object of assembly-Necessity of.

When the appellants wanted to irrigate the land they were prevented from
doing so by the deceased as a result of which the !st appellant who is now dead
gave a bhala blow to the deceased. The other appellants were supposed to have
been armed with lathis but they did not cause any injuries either to the witnesses
D
or to the deceased.

The Sessions Judge convicted the l st appellant under section 304 Part I of
the Indian Penal Code and sentenced him to undergo imprisonment for life and
the other appellants under section 326/149 of the Indian Penal Code and senten-
ced them to undergo 3 years' rigorous imprisonment but affirmed the acquittal of
the individual charges under sections 323 and 325 I.P.C. The High Court while E
convicting the appellant under sections 325/149 of the I.P.C. has given no finding
regarding the common object of the unlawful assembly.

Accepting the appeal, the Court

HELD : In the instant case, there is neither any evidence nor any finding
that any of the ingredients of section 149 have been established by the prosecu- F
tion. Even on the prosecution case itself the occurrence took place as a result
of an inigation dispute and the appellants were merely acting under a· bona fide
claim or belief that they had the right to irrigate the land. There is no overt act
attributed to any of the appellants in regard to the deceased and the mere fact
that the appellants were armed with lathis by itself would not prove that they

.... shared the common object with which the deceased was inspired. [292 G-H]

2. Before the High Court upheld the conviction of the appellants under
G
sections 326/149 I.P.C. it should have recorded a clear finding as to what was the
object of the unlawful assembly and if so whether the object was to commit
murder, grievous hurt or simple hurt. [293 A]

3. Whenever the High Court convicts any person or persons of an H
offence with the aid of section 149 a clear finding regarding the common
object of the assembly must be given and the evidence discussed must
292 SUPREME COURT REPORT [1981] 3 S.C.R.

A show not only the nature of the common object but also that the object was un-
lawful. Before recording a conviction under section 149 of the l.P.C. the essen-
tial ingredients of section 141 of the I.P.C. must be established. [293 DJ
I
CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal No.
365 of 1974.

B Appeal by Special Leave from the Judgment and Order dated
24.1.1974 of the Patna High Court at Patna in Criminal Appeal No.
306/ I 969.

U. P. Singh for the Appellants.

c K. G. Bhaget and U. N. Prasad for the Respondent.

The Judgment of the Court was delivered by

FAZAL Au, J. This appeal by special leave is directed against the
judgment of the Patna High Court dated 24.1.1974 and has been pre-
D ferred by appellants Dayanand Manda!, Bhubneshwar Manda!, Kuldip
Manda!, Bhagwat Mandal, Nemo Manda!, and Udin Yadav. The
occurrence seems to have arisen out of an irrigation dispute. Accord-
ing to the prosecution case the appellants wanted to irrigate the land
and when they were prevented from doing so, Mainu Manda! resisted
as a result of which Bhudeo Manda! who is now dead gave a bhala
E blow to the deceased Mainu Manda!. So far as the other appellants
are concerned, they are supposed to have been armed With laihis
but they did not cause any injuries either to the witnesses or to the
deceased. The Sessions Judge had convicted the accused Bhudeo Man-
da! under section 304 Part I of the Indian Penal Code and sentenced
him to undergo imprisonment for life and the other appellants under
F section 326/I 49 of the Indian Penal Code and sentenced them to 3
years rigorous imprisonment but affirmed the acquittal of the accused
of the individual charges under sections 323 and 325 of the Indian
l'enal Code by the Sessions Judge. We have gone through the
judgment of the High Court which while convicting the appellant
G under section 326/149 of the Indian Penal Code has given no finding
regarding the common object of the unlawful assembly. Even on
the prosecution case itself the occurrence took place as a result of
an irrigati~n dispute and the appellants were merely acting under a
bona fide claim or belief that they had the right to irrigate the land.
There is no overt act attributed to any of the appellants on
H the deceased and the mere fact that the appellants were armed
with Iathis by itself would not prove that they shared the common
BHUDEO MANDAL v. BIHAR (Fazal Ali, J.) 293

object with which Bhudeo Manda! was inspired. Before the High A
Court could have upheld the conviction of the appellants under
section 326/149 of the Indian Penal Code, it should have recorded a
y clear finding as to what was the object of the unlawful assembly and
if so whether the object was to commit murder, grievous hurt or
simple hurt. In these circumstances we find ourselves in complete
agreement with the argument of Mr. U.P. Singh, learned counsel B
for the appellants that there is no material to support the conviction
of the appellants under section 326/149 of the Indian Penal Code.
Mr. Bhagat appearing for the State fairly conceded that in the
circumstances of this case it would not be possible for him to
support the conviction mainly on the ground that since the main
accused was convicted under section 304, Part I the other appellants c
should also have been convicted under section 304/ l 49 and not
under section 326 of the Indian Penal Code. We should like to
point out that whenever the High Court convicts any person or
persons of an offence with the aid of section 149 a clear finding
regarding the comn:ion object of the assembly must be given and the
evidence discussed must show not only the nature of the common D
object but also that the object was unlawful. Before recording a
conviction under section 149 of the Indian Penal Code, the essential
ingredient of section 141 of the Indian Penal Code must be estab-
lished. Section 149 creates a specific offence and deals with the
punishment of that offence. There is an assembly of five or more
persons having a common object and the doing of acts by members
E
is in prosecution of that object. The emphasis is on common object.
In tbe instant case there is neither any evidence nor any finding that
any of the ingredients of section 149 have been established by the
prosecution.

In the result the appeal is allowed and the conv1ct10n and F
sentence of the appellants are set aside and the appellants are
acquitted of the charge framed against them. The appellants are
hereby discharged from their bail bonds and need not surrender.

N.K.A. Appeal allowed.