SUKHAN RAUT AND ORS.versusSTATE OF BIHAR

                          SUKHAN RAUT AND ORS.                                    A
                                    v.
                             STATE OF BIHAR

                             NOVEMBER 28, 2001

                    [R.P. SETHI AND Y.K. SABHARWAL, JJ.]                          B

         Criminal Law :

           Penal Code, 1860-Sections 149, 34, 302, 147 and 148-Commission of
    of.fence by unlawful assembly in prosecution ~f common object-Liability of-   C
    Murder committed pursuant to the common object offorcibly dispossessing the
    deceased and others by members of unlawful assembly-Such members cannot
    be said to have the common object ~f committing murder.

          Common object tuul common intention-Distinction between.
                                                                                  D
          According to the prosecution, deceased alongwith one 'ff' was plough-
    ing land when the accused appellants including appellant No. 1 armed with
    weapons came on the spot and started ploughing. 'H' protested and on the
    direction of appellant No. 1, one 'B' gave a blow on the head of the
    deceased in consequence of which he died. Thereafter the appellants           E
    alongwith 'B' were convicted under Section 302 read with Section 149 and
    also Sections 148, 147 and 323 of the Penal Code and were sentenced to
    imprisonment for life. High Court confirmed the order. Hence the present
    appeal.
                                                                                  F
.         Appellants contended that the common object was only with respect
    to forcibly dispossessing the deceased and others and not for committing
    murder.

          Respondent submitted that as murder was committed in furtherance
    of the common object of dispossessing the deceased it has to be inferred      G
    that the appellants were aware of the ultimate offence of murder.

          Disposing of the appeal, the Court

          HELD : 1. Section 149 IPC makes the members of an unlawful              H
                                       359
    360                 SUPREME COURT REPORTS              [2001] SUPP. 5 S.C.R.
A   assembly vicariously liable where it is proved that the offence is committed
    in pursuance of the common object of the unlawful assembly which the
    members of the unlawful assembly knew that such offence was likely to be
    committed in prosecution of the object of the unlawful assembly. Once it
    is established that the unlawful assembly had common object, it is not
B   necessary that all'persons forming the unlawful assembly must be shown
    to have committed some overt act for the purposes of incurring the vicari-
    ous liability for the offence committed by a member of such unlawful
    assembly. [362-F-H]

C          2. Appellant No. 1 is proved to have instigated 'B' for giving the blow
    to the deceased in consequence of which he died. It is established beyond
    any doubt that Appellant No.1 and 'B' shared the common intention
    though not common object at the time when the blow was caused on the
    head of the deceased. Therefore, Appellant No. 1 is guilty of common of
    offence punishable under Section 302 read with Section 34 of the Code and
D   is sentenced to undergo imprisonment for life. [364-E; Fl

           3. 'B' on being instigated by appellant No. 1 inflicted injury on the
    person of the deceased despite the fact that all the members of the unlawful
    assembly were allegedly armed with weapons like lathis. When, after
E   receiving the blow the deceased started fleeing towards south, then also no
    member of the unlawful assembly prevented him or in any another way
    facilitated the accomplishment of the crime of murder committed by 'B'
    on the orders of appellant No. 1. One of the appellants is stated to have
    thrown a stone on the chest of the deceased but the allegation stands belied
F   from the injuries found on the person of the deceased. Thus there is
    no basis to hold in view of the attending circumstances at the time of
    commission of the offence that the members of the unlawful assembly had
    the common object of committing the murder of the deceased in prosecu-
                                                                                     ..
    tion of the common object of committing the criminal trespass. Also there
G   is no sufficient evidence produced by the prosecution to prove the same
    beyond reasonable doubt. Therefore, the other appellants are convicted
    only for the offences punishable under sections 147, 148, 323 read with
    section 149 of the Code and sentenced to imprisonment already undergone
    by them.
                                              [363-F; G; H; 364-A; C; D; G; H]
H
                     SUKHAN RAUT v. STATE [SETHI, J.]                       361
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 135                      A
of 2000.

      From the Judgment and O•der dated 23.4.99 of the Patna High Court in
Cr!. A. No. 511 and 518 of 1986.

      P.S. Mishra, Vishnu Sharma, Chandrashekhar Singh, Upendra Mishra,              B
Tathagat Harshvardhan, Deba Prasad Mukherjee for the Appellants.

      Silket Singh, for D.B. Singh for the Respondent.

      The Judgment of the Court delivered by

      SETHI, J. Appellants along with one Bhaiya Mani Raut @ Babu Muni
                                                                                     c
Raut were convicted under Section 302 read with Section 149 of the Indian
Penal Code (hereinafter referred to as "the Code") and sentenced to undergo
imprisonment for life. They were also convicted under Section 148, 147 and
323 of the Code but no separate sentences were passed against them. The
appeals filed by the convicts were dismissed vide the judgment impugned in           D
this appeal.

      Special Leave Petition filed by Bhaiya Mani Raut was rejected by this
Court vide order dated 6.9.1999.

       Mr. P.S. Misra, learned Senior Counsel appearing for the appellants has       E
submitted that there was no evidence against the appellants for holding them
guilty under Section 302 read with Section 149 of the Code. It is contended
that the common object, as alleged and proved by the prosecution, was only
with respect to forcibly dispossessing the deceased and others and not for
committing the ultimate crime of murder. According to the learned counsel, the       F
appellants, at the most can be convicted and sentenced for their individual acts.
Per contra it is submitted that as the murder was committed in furtherance of
the common object of dispossessing the deceased it has to be inferred that the
appellants were aware of the ultimate offence of murder likely to be committed
in pursuance of the common object for which they had joined together. As the
                                                                                     G
murder was the consequence of the common object of forcibly dispossessing
the deceased, the appellants are presumed to be aware of the commission of
the ultimate offence.

      To appreciate the rival contentions it is necessary to note the facts of the
 case which resulted in the murder of one person and injuries to the others          H
    362                  SUPREME COURT REPORTS                [2001] SUPP. 5 S.C.R.
A   including some of the PWs. According to the prosecution the occurrence took
    place on 21st July, 1981 at about 8 p.m. when Sardari Raut and Hakim Raut
    were ploughing the land comprising of Plot No. 369. All the accused persons
    armed with weapons came on spot with two pairs of bullocks and started
    ploughing the field in possession of Sardari Raut. When Hakim Raut protested
B   against the action of the appellants, he was abused and threatened. Tarni Raut
    (PW 3) asked Sat Narain (PW 5) to call the Sarpanch and directed Hare Krishna
    Raut (PW 9) to inform the police. At this point of time Sukharn Raut, appellant
    who was armed with spade and lathi directed Bhaiya Mani Raut to attack
    Sardari Raut. Bhaiya Mani Raul gave a Tangi blow on the head of Sardari Raut
    who started fleeing towards South but fell down in the nearby field whereafter
c   Dewan Raut is alleged to have thrown a stone weighing about 4 kgs on the
    cl!est of Sardari Raul resulting in his instantaneous death. Bal Krishnan Raut
    (PW !), Hakim Raut (PW 8), Tarni Raut (PW3) were assaulted by the appel-
    lants and inflicted injuries. After commission of the crime all the accused ran
    away from the spot. First Information Report was lodged by Hare Krishna Raut
D   (PW 9) at Police Station Sarawan which was registered as FIR No. 54 of 1981.
    After investigation, the charge-sheet was submitted against all the appellants.
    The prosecution examined 12 witnesses in support of its case.

          The appellants pleaded not guilty and stated that they were falsely
E   implicated in the case and that the occurrence had not taken place in the manner
    as alleged by the prosecution. According to them the land where the occurrence
    took place was in their possession and that the deceased and the prosecution
    witnesses were the aggressors. In the free fight, which is alleged to have
    ensued, some of the accused-appellants are stated to have also sustained the
    injuries. As already noticed, the trial court convicted the accused persons and
F
    their appeal was dismissed by the High Court.

           Section 149 of the Code makes the members of an unlawful assembly
    vicariously liable where it io proved that the offence is committed in pursuance
    of the common object of the unlawful assembly which the members of the
G   unlawful assembly knew that such offence was likely to be committed in
    prosecution of the object of the unlawful assembly. Once it is established that
    the unlawful assembly had common object, it is not necessary that all persons
    forming the unlawful assembly must be shown to have committed some overt
    act for the purposes of incurring the vicarious liability for the offence commit-
H   ted by a member of such unlawful assembly. Under this section the liability of
                    SUKHAN RAUT v. STATE [SETHI, l]                       363
the other member of the unlawful assembly for the offence committed during         A
the continuance of the occurrence, rests upon the fact whether the other mem-
bers knew before hand that the offence actually committed was likely to be
committed in prosecution of the common object. Common object has to be
distinguished from the common intention. There is no question of common
intention in Section 149 of the Code. Where no injury is inflicted pursuant to     B
the common object to kill the deceased, but caused only when provoked by one
of the witnesses, the members of the unlawful assembly cannot be held guilty
for the commission of the offence of murder.

       In the instant case the prosecution alleged a common object which the
trial court held proved was : "Now from the evidence of the PWs it is suffi-       c
ciently established that the accused persons were aggressors and went to the
field of the informant and his family members in order to take the possession
of the land forcibly. So it is apparent that the accused person formed an
unlawful assembly the common object of which was to commit criminal
trespass and to take possession of the land of the informant by means of           D
criminal force". The trial court, however, held that:

         "It is also evident from the circumstances and the conduct that the
         members of the unlawful assembly were knowing that the murder was
         likely to be committed in prosecution of the said common object and       E
         in the prosecution of the common object the murder of Sardari Rout
         was committed by Babumani @ Bhaiya Muni Rout who was member
         of unlawful assembly."

      The High Court also found that the corrunon object of the unlawful
assembly was to commit trespass to take possession of the land of the informant
                                                                                   F
and his family members by force.

      Learned Senior Counsel appearing for the appellants submitted that there
was no basis for the trial court to hold that the members of unlawful assembly
knew that the murder was likely lo be committed in prosecution of the common       G
object of corrunitting criminal trespass. We find substance in this argument of
the learned counsel. It is admitted that no member of the unlawful assembly
except Bhaiya Mani Raut, inflicted any injury on the person of the deceased
uespite the fact that they were allegedly armed with weapons like lathis. It is
also not disputed that when, after receiving the tangi blow the deceased started   H
     364                  SUPREME COURT REPORTS               (2001) SUPP. 5 S.C.R.
A   fleeing towards south, no member of the unlawful assembly prevented him or
    in any other way facilitated the accomplishment of the crime of murder com-
    mitted by Bhaiya Mani Raut on the orders of Sukhan Raut. Dewan Raut is
    stated to have thrown a stone on the chest of the deceased but such allegation
    stands belied from the injuries found on the person of the deceased. The post
B   mortem revealed the following injuries on the person of the deceased :

              "(i) One incised wound on frontal area of scalp 2"x3/4" bone deep with
              crack fracture of the frontal bone.

              (ii) One abrasion on left leg near ankle l/4"xl/4"."
c
           No injuries on the chest was noticed at the time of post mortem. Injury
     No. 2, an abrasion on left leg near ankle cannot be attributed to the appellac1t
     Dewan. There is no sufficient evidence produced by the prosecution which
     could prove beyond reasonable doubt that all the appellants had a common
     object of committing the crime of murder. The atending circumstances at the
D
    ·time of commission of the offence do not indicae that all the accused had the
     common object of committing the murder of Sardari Raul.

           However, the position of Sukhan Raul, the appellant is different. He is
    proved to have instigated Bhaiya Mani Raul for giving a tangi blow to the
E   deceased in consequence of which he died. Though not common object, yet
    common intention is proved against Sukhan Raul. It is established beyond any
    shadow of doubt that Sukhan Raul and Bhaiya Mani Raut shared the common
    intention at the time when the blow was caused on the head of Sardari Raut
    in consequence of which he died. Sukhan Raut is, therefore, guilty for the
F   commission of the offence punishable under Section 302 read with Section 34
    of the Code.

           Learned counsel appearing for the appellants has fairly conceded that all
    other appellants have rightly been held guilty and convicted for the commission
    of offences punishable under Sections 147 148, and 323 read with Section 149
G   of the Code. All the aforesaid accused persons are liable to be convicted for
    the aforesaid offences. They are stated to have undergone the imprisonment
    ranging from a periods of more than one year. Interests of justice would be
    served if they are sentwced to the imprisonment already undergone by them.

H          Accordingly, the appeal is disposed of by holding guilty and convicting
                    SUKHAN RAUT v. STATE [SETHI, J.]                   365
Sukhan Raut under Section 302 read with section 34 of the Code. He is          A
sentenced to undergo imprisonment for life. Other appellants, namely, Sattan
Raut, Jitendra Raut, Umesh Raut, Binod Raut, Deven Raut@ Deb Narain Raut,
Bhuneshwar Raut and Suchit Raul, are convicted for the offences punishable
under Sections 147, 148, 323 read with Section 149 of the Code and sentenced
to imprisonments already undergone by them.                                    B
N.J.                                                    Appeal disposed of.