minal Appeal No 203 of 1966
Appeal by special leave from the judgment and order dated April 5 1966 of the Patna High Court in Criminal Appeal No 602 of 1963
D P Singh for the appellant
Nur ud din Ahmed and D Goburdhun for the respondents
The Judgment of the Court was delivered by Bachawat J
The prosecution case was that Bhaiya Ramanuj Pratap Deo was the proprietor of village Phatpani and owned and possessed bakasht and gairmazura lands therein including plot No 1311 and the mahua trees standing thereon
On April 10 1962 at 3 pm his employee PW 33 Bindeshwari Singh was in charge of collection of mahua fruits in plot No 1311 and the victims Ram Swarup Singh and Ramdhari Singh were supervising the collection
PW 1 Dhaneshwari PW 2 Deokalia PW 3 Dewal PW 4 Rajmatia PW 6 Udal Singh PW 7 Border Singh PW 8 Meghan Chamar PW 9 Ram Dihal Kharwar PW 10 Ram Torai Kharwar PW 11 Manan Singh and PW 13 Jhagar Kharwar were collecting mahua fruits when suddenly accused Mathua Pandey Kundal Pandey and Muneshwardhar Dubey armed with garassas Chandradeo Pandey Dayanand Pandey and Nasir Mian armed with bhalas and Bife Bhogta Thegu Bhogta Nageshwardhar Dubey and Uma Shankar Dubey armed with lathis surrounded Ramswarup and Ramdhari and assaulted them with their weapons
Dewal also was assaulted by Bife and Thegu and suffered minor injuries
Ramdhari died on the spot
Ramswarup died while preparations were being made to carry him to the hospital
Bindeshwari lodged the first information report at 8 pm on the same date
On April 14 1962 accused Mathu gave a report 360 at Nagaruntari hospital
He said that on April 10 1962 at 3 pm while he was returning home he was assaulted with lathis garassas and bhalas by the employees of the Bhaiya Saheb
The following injuries were found on the dead body of Ram swarup Singh  1 abrasion 1 12x 1 14 with ecchymosis on anterior aspect of right knee joint 2 another abrasion 12 x 14  with ecchymosis on anterior aspect of right leg 3 a small abrasion with ecchymosis on anterior aspect of left knee joint 4 an incised wound 4 x 1 x scalp on anterior aspect of the left side of the head 5 a lacerated wound 31 X 13 X scalp with ecchymosis on right side of head and  6 a penetrating wound with clean cut margins 2 12 X 1 X abdominal cavity placed transversely on right hypochondrium just right to mid line with stomach and loop of large bowel bulging out of it
 On opening the abdominal wall it was found that the peritoneum was con gested and the stomach was perforated on its anterior wall
Injuries 1 2 3 and 5 were caused by hard and blunt substance such as lathi
Injury No 4 was caused by sharp cutting weapon such as garassa
Injury No 6 on the abdominal cavity was caused by some sharp pointed weapon with sharp cutting margin such as bhala
The death was due to shock and internal haemorrhage caused by the abdominal wounds
The following injuries were found on the dead body of Ramdhari Singh  1 the helix of left ear was cut 2 a lacerated wound 12 x 110 x 110 with ecchymosis on the outer part of the left eye brow 3 a punctured wound with clean cut margins 2 12X I X 1 12 on left thigh below its middle 4 a punctured wound with clean cut margin 1 X 14 X 1 on posterior aspect of the left thigh in its middle and 5 a penetrating wound with clean cut margins 2 14 x 34 x abdominal cavity on right side of the abdomen
The loops of intestines were bulging out of this opening
Injury No 2 was caused by hard and blunt substance such as lathi
The other injuries were caused by a sharp pointed weapon with sharp cutting edge such as bhala
Death was due to shock and internal haemorrhage caused by injury No 5 the abdominal wound
The trial court convicted the accused respondents Mathu Chandradeo Kundal Dayanand Bife Thegu Nasir Munesh wardhar Nageshwardhar Umashankardhar under section 302 read with section 149 of the Indian Penal Code for the murders of Ram dhari and Ramswarup and sentenced them to rigorous imprison ment for life each
Bife Thegu Nageshwardhar and Umashan kardhar were convicted under section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for six months each
The remaining respondents were convicted under section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year 361 each
Bife and Thegu were convicted under section 323 of the Indian Penal Code for causing hurt to Dewal and sentenced to rigorous imprisonment for six months each
The sentences of each respondent were to run concurrently
The trial court held that 1 Bhaiya Saheb was in possession of plot No 1311 2 while Ramswarup and Ramdhari were collecting mahua on the plot the respondents armed with bhalas garassas and lathis inflicted fatal injuries on them with a view to forcibly prevent them from collecting the mahua 3 Thegu and Bife assaulted Dewal with lathis 4 the accused persons knew that there was likelihood of murders being committed in prosecution of the common object and 5 the assailants inflicted the injuries on Ramswarup and Ramdhari with the intention of murdering them
The respondents filed an appeal in the High Court of Patna
The High Court allowed the appeal and set aside all the convictions and sentences
The High Court found that 1 respondent Chandradeo was the thikadar of plot No 1311 and was in possession of the mahua trees standing thereon 2 on the date of the occurrence the members of the prosecution party including Ramdhari and Ramswarup committed theft on the fruits of the mahua trees and the respondents had the right of private defence of property against the theft 3 Ramswarup carrying a tangi and Ramdhari carrying a danta caused severe injuries to respondent Mathu on his head leg and that while doing so they were not defending themselves Mathu became unconscious
He regained consciousness on April 14 1962
4 the theft of mahua fruits was committed under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised
Accordingly the respondents  right of private defence of property extended under section 103 of the Indian Penal Code to voluntarily causing death to Ramdhari and Ramswarup subject to the restrictions mentioned in section 99 5 the person or persons who caused the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence
These findings are based on adequate evidence and are not shown to be perverse
In this appeal under article 136 of the Constitution from an order of acquittal passed by the High Court we are not inclined to interfere with the above findings
The question is whether in these circumstances the High Court rightly acquitted the appellants
 The fatal wounds on the abdominal cavities of Ramdhari and Ramswarup were caused by bhalas
The prosecution case was that Chandradeo Dayanand and Nasir were armed with bhalas
The High Court rightly held that the prosecution failed to established that Chandradeo was armed with a bhala
The prosecution witnesses said generally that all the respondents surrounded Ram 362 dhari and Ramswarup and
assaulted them
The prosecution case has been found to be false in material respects
It is not possible to record the finding that Chandradeo Dayanand and Nasir were armed with bhalas
Some of the respondents were armed with bhalas but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Ramdhari and Ramswarup
Accordingly we cannot convict any of the respondents under section 302
The only question is whether they can be convicted under section 302 read with either section 149 or section 34
In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly
Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any Person
Section 141 must be read with sections 96 to 106 dealing with the right of private defence
Under section 96 nothing is an offence which is done in the exercise of the right of private defence
The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression to enforce any right or supposed right in the fourth clause of section 141
In Kapildeo Singh vs The King1 the High Court had affirmed the appellant s conviction and sentence under section 147 and section 304 read with section 149 without considering the question as to who was actually in possession of the plot at the time of the occurrence
The High Court observed that the question of possession was immaterial and that the appellants party were members of an unlawful assembly as both sides were determined to vindicate their rights by show of force or use of force
 The Federal Court set aside the conviction and sentence
It held that the High Court judge stated the law too loosely if by the use of the word vindicate  he meant to include even cases in which a party is forced to maintain or defend his rights
The assembly could not be designated as an unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law
The charges against the respondents were that they were members of an unlawful assembly in prosecution of the common object of which viz in forcibly preventing Ramdhari Singh and Ramswarup Singh from collecting mahua from Barmania field of village Phatnapi and if necessary in causing the murder of the said two persons for the purpose that some of them caused the murders of Ramdhari and Ramswarup and that thereby all of them committed offences under section 302 read with section 149
We have found that respondent Chandradeo was in possession of plot 1 363 No 1311 and the mahua trees standing thereon
The object of the respondent s party was to prevent the commission of theft of the mhua fruits in exercise of their right of private defence of property
This object was not unlawful
Nor is it possible to say that their common object was to kill Ramdhari and Ramswarup
Those who killed them exceeded the right of private defence and may be individually held responsible for the murders
But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object
The accused respondents cannot be made constructively responsible for the murders under section 302 read with section 149
In Kishori Prasad  Ors
vs State of Bihar1 the High Court convicted the appellants under section 326149 of the Indian Penal Code though the appellant Hirdaynarain was in lawful possession of the western portion of plot No 67 and the attempt by the prorecution party to cultivate the same was high handed
This Court set aside the conviction and sentence
Ramaswami J observed In a case where the accused person could invoke the right of private defence it is manifest that no charge of rioting under section 147 or section 148 Indian Penal Code can be established for the common object to commit an offence attributed in the charge under section 147 or section 148 Indian Penal Code is not made out
If any accused person had exceeded the right of private defence in causing the death of Chitanu Rai or in injuring Gorakh Prasad it is open to the prosecution to prove the individual assault and the particular accused person concerned may be convicted for the individual assault either under section 304 Indian Penal Code or of the lesser offence under section 326 Indian Penal Code
The difficulty in the present case is that the High Court has not analysed the evidence given by the parties and given a finding whether any or which of the appellants are guilty of causing the death of Chitanu Rai or of assaulting Gorakh Prasad
As we have already said none of the appellants can be convicted of the charge of rioting under section 148 or of the constructive offence under section 326149 Indian Penal Code
 We accordingly hold that the respondents cannot be convicted under section 302 read with section 149 Indian Penal Code
Nor is it possible to convict them under section 302 read with section 34
The High Court rightly found that the respondents wanted to prevent the 1 Cr
No 191 of 1966 decd
on 5 12 1968
364 collection of mahua fruits and that a common intention of all of them to murder Ramdhri and Ramswarup was not established
The case of Gurudittamal vs State of UP1 is distinguish able
In that case the Court found that 1 the accused persons who were in possession of a field had exceeded the right of private defence of property by murdering four persons who were peacefully harvesting the crops standing on the field and 2 each of the four appellants killed one member of the prosecution party and each of them individually committed an offence under section 302 see paragraph 6 and end of paragraph 14
In these circumstances the Court upheld their conviction and sentence under section 302
The Court also found that the appellants had the common intention to kill the victims and could be convicted under section 302 read with section 34 see paragraph 12 and 9
In the present case none of the respondents can be convicted under section 302
As a common intention to murder Ramdhari or Ramswarup is not established they cannot be convicted under section 302 read with section 34
In the result the appeal is dismissed
RKPS Appeal dismissed
1 AIR 1965 SC 257


Summary:
In proceedings against the accused respondents the prosecution case was that on certain land belonging to one B where some of his men were gathering fruits the respondents armed with bhallas lathis etc attacked these men killing two of them and injuring others
The trial court convicted the respondents under section 302 read with section 149 IPC of the murder of the two deceased persons and of offences for inflicting injuries on other persons
The respondents  appeal to the High Court was allowed and that Court set aside all the convictions and sentences
The High Court found that the land in question was in the possession of one of the respondents and that on the date of occurrence the members of the prosecution party including the murdered victims committed thefts of fruits on the land and that the respondents had the right of private defence of property against the theft the theft of the fruits was committed under such circumstances as might reasonably cause apprehension that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised
Accordingly the respondents  right of private defence of property extended under section 103 IPC to voluntarily causing death of the two murdered victims subject to the restrictions mentioned in section 99
In appeal to this Court against the acquittal of the respondents it was contended that they were members of an unlawful assembly prosecuting the common object of forcibly preventing the two deceased from collecting fruit from the land in question and if necessary in causing the murder of the said two persons for the purpose that some of them caused the murder of the two victims and that thereby all of them committed offences under section 302 read with section 149
HELD  The respondents could not be convicted under section 302 read with section 149 IPC nor was it possible to convict them under section 302 read with section 34
In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly
Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person
Section 141 must be read with Ss 96 to 106 dealing with the right of private defence
Under section 96 nothing is an offence which is done in the exercise of the right of private defence
The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression to enforce any right or supposed right in the fourth clause of section 141
362 C 359 As it had been found in the present case that the land in question was in the possession of one of the respondents the object of the respondents  party was to prevent the commission of theft of the fruits in exercise of their right of private defence of property
This object was not un lawful
Nor was it possible to say that their common object was to kill the two deceased victims
Those who killed them exceeded the right of private defence and may be individually held responsible for the murders
But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object
The accused respondents could not be made constructively responsible for the murders under section 302 read with section 149
363 B Kapildeo Singh vs The King  Kishori Prsad  Ors
vs State of Bihar Cr
Appeal No 191 of 1966 decd
on 5 12 1968 and
Gurudittamal vs State of UP
AIR 1965 SC 257 referred