N Criminal Appeal No 365 of 1974
Appeal by Special Leave from the Judgment and Order dated 2411974 of the Patna High Court at Patna in Criminal Appeal No 3061969
U P Singh for the Appellants
K G Bhagat and U N Prasad for the Respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave is directed against the judgment of the Patna High Court dated 2411974 and has been preferred by appellants Dayanand Mandal Bhubneshwar Mandal Kuldip Mandal Bhagwat Mandal Nemo Mandal and Udin Yadav
The occurrence seems to have arisen out of an irrigation dispute
According to the prosecution case the appellants wanted to irrigate the land and when they were prevented from doing so Mainu Mandal resisted as a result of which Bhudeo Mandal who is now dead gave a bhala blow to the deceased Mainu Mandal
So far as the other appellants are concerned they are supposed to have been armed with lathis but they did not cause any injuries either to the witnesses or to the deceased
The Sessions Judge had convicted the accused Bhudeo Mandal under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326149 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 Penal Code by the Sessions Judge
We have gone through the judgment of the High Court which while convicting the appellant under section 326149 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 irrigation 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 the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common 293 object with which Bhudeo Mandal was inspired
Before the High Court could have upheld the conviction of the appellants under section 326149 of the Indian Penal Code 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
In these circumstances we find ourselves in complete agreement with the argument of Mr UP Singh learned counsel for the appellants that there is no material to support the conviction of the appellants under section 326149 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 should also have been convicted under section 304149 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 common object of the assembly must be given and the evidence discussed must show not only the nature of the common 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 established
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 is in prosecution of that object
The emphasis is on common object
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 prosecution
In the result the appeal is allowed and the conviction and 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
NKA Appeal allowed


Summary:
When the appellants wanted to irrigate the land they were prevented from doing so by the deceased as a result of which the 1st 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 or to the deceased
The Sessions Judge convicted the 1st 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 326149 of the Indian Penal Code and sentenced them to undergo 3 years  rigorous imprisonment but affirmed the acquittal of the individual charges under sections 323 and 325 IPC The High Court while convicting the appellant under sections 325149 of the IPC 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 prosecution
Even on the prosecution case itself the occurrence took place as a result of an irrigation 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 sections 326149 IPC 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 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 show not only the nature of the common object but also that the object was unlawful
Before recording a conviction under section 149 of the IPC the essential ingredients of section 141 of the IPC must be established
293 D