Appellants Tej Singh and Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh’s cousin and Maiku was a servant of Tej Singh. They were all convicted under Section 302 read with Section 149 of the Indian Penal Code and except Mizaji who was sentenced to death, they were all sentenced to imprisonment for life.
The offence for which the appellants were convicted was committed on July 27, 1957, at about sunrise and the facts leading to the occurrence were that Field No. 1096 known as Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded as in possession as tenant-in-chief. Sometime in 1949 he mortgaged this plot of land to one Lakhan Singh. In 1952 this field was shown as being under the cultivation of Rameshwar, the deceased and four other persons, Ram Sarup who was the uncle of Rameshwar, Jailal his brother, Sita Ram and Saddon. The record does not show as to the title under which these persons were holding possession. The mortgage was redeemed sometime in 1953.
The defence plea was that in the years 1954, 1955, 1956 possession was shown as that of Banwari. But if there were any such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of Rameshwar, and four others above-named. These entries showing cultivating possession of the deceased and four others were continued in 1957. On April 18, 1957, Banwari sold Field No. 1096 to Tej Singh appellant who made an application for mutation in his favour but this was opposed by the deceased and four other persons whose names were shown as being in possession.
In the early hours of July 27, 1957 the five appellants came armed as above stated. Mizaji’s pistol is stated to have been in the fold (phent) of his dhoti. A plough and plank known as patela and bullocks were also brought. The disputed field had three portions, in one sugarcane crop was growing, in the other Jowar had been sown and the rest had not been cultivated. Maiku started ploughing the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept watch. Bateshwar PW 7 seeing what was happening gave information of this to Ramsarup who accompanied by Rameshwar, Jailal and Israel came to the Sukhna field but unarmed. Ram Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied that he had purchased the field and therefore would do “what he was doing” which led to an altercation. Thereupon, the four persons cutting the sugarcane crop i.e. Mizaji, Subedar, Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej Singh, Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died half an hour later. The accused, after Rameshwar fell down, fled from the place. Ram Sarup, Jailal and Israel then went to the police station Nawabgunj and Ram Sarup there made the first information report at about 7-30 a.m., in which all the five accused were named.
The question for decision is as to what was the common object of the unlawful assembly and whether the offence of murder was committed in prosecution of the common object or was such an offence as the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. It was argued on behalf of the appellants that the common object was to take forcible possession and that murder was committed neither in prosecution of the common object of the unlawful assembly nor was it such as the members of that assembly knew to be likely to be committed. That the common object of the unlawful assembly was to take forcible possession of the Sukhana field cannot be doubted.
Can it be said in the circumstances of this case that in prosecution of the common object the members of the unlawful assembly were prepared to go to the extent of committing murder or they knew that it was likely to be committed? One of the members of the assembly Tej Singh was armed with a spear. His son Mizaji was armed with a pistol and others were carrying lathis.
The extent to which the members of the unlawful assembly were prepared to go is indicated by the weapons carried by the appellants and by their conduct, their collecting where Tej Singh was and also the language they used at the time towards the complainant’s party.
The High Court has found that the appellants “had gone prepared to commit murder if necessary in the prosecution of their common object of taking forcible possession of the land”, which it based on the testimony of Matadin and Hansraj who deposed that when the complainant’s party arrived and objected to what the appellants were doing they (the appellants) “collected at once” and asked Ram Sarup and his companions to go away otherwise they would finish all of them and when the latter refused to go away, the pistol was fired. That finding would indicate the extent to which the appellants were prepared to go in the prosecution of their common object which was to take forcible possession of the Sukhana field. The High Court also found that in any event the case fell under the second part of Section 149, Indian Penal Code in view of the weapons with which the members of the unlawful assembly were armed and their conduct which showed the extent to which they were prepared to go to accomplish their common object.
The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.
There is a great deal to be said for the opinion of Couch, C.J., in Sabid Ali case that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part.
It was next argued that the appellants went to take possession in the absence of the complainants who were in possession and therefore the common object was not to take forcible possession but to quietly take possession of land which the appellants, believed was theirs by right. In the first place there were proceedings in the Revenue Department going on about the land and the complainants were opposing the claim of the appellants and then when people go armed with lethal weapons to take possession of land which is in possession of others, they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole.
The finding of the High Court as we have pointed out was that the appellants had gone with the common object of getting forcible possession of the land. They divided themselves into three parties, Maiku appellant was in the field where jowar was sown and he was ploughing it, Mizaji, Subedar and Machal were in the sugar field and cutting the crop. Tej Singh was keeping watch. When the party of the complainants on being told of what the appellants were doing came, they protested to Tej Singh. Thereupon, all the members of Tej Singh’s party gathered at the place where Tej Singh was and asked the complainants “to go away otherwise they would be finished”, but they refused to go. Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was carrying in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died 1/2 hour later. It was argued on behalf of the appellants that in these circumstances it cannot be said that the offence was committed in prosecution of the common object of the assembly which was clear from the fact that the party had divided itself into three parts and only Mizaji used his pistol and the other appellants did not use any weapon and just went away.
Both the Courts below have found that the pistol was fired by Mizaji and thus he was responsible for causing the death of Rameshwar which would be murder and also there is no doubt that Tej Singh would be guilty of abetment of that offence. But the question is whether Section 149 is applicable in this case and would cover the case of all the appellants? This has to be concluded from the weapons carried and the conduct of the appellants. Two of them were armed one with a spear and the other with a pistol. The rest were armed with lathis. The evidence is that when the complainants’ party objected to what the appellants did, they all collected together and used threats towards the complainants’ party telling them to go away otherwise they would be finished and this evidence was accepted by the High Court.
From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the murder must be held to be immediately connected with the common object and therefore the case falls under Section 149, Indian Penal Code and they are all guilty of murder. This evidence of Hansram and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession.
It was then contended that Mizaji did not want to fire the pistol and was hesitating to do so till he was asked by his father to fire and therefore penalty of death should not have been imposed on him. Mizaji carried the pistol from his house and was a member of the party which wanted to take forcible possession of the land which was in possession of the other party and about which proceedings were going on before the Revenue Officer. He fully shared the common object of the unlawful assembly and must be taken to have carried the pistol in order to use it in the prosecution of the common object of the assembly and he did use it. Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the courts would take into consideration.
In our opinion the courts below have rightly imposed the sentence of death on Mizaji. Other appellants being equally guilty under Section 149, Indian Penal Code, have been rightly sentenced to imprisonment for life.