1991 JTR(SC) 513
1991 2 AICLR 1036 ; 1992 AIR(SC) 483 ; 1992 AIR(SCW) 75 ; 1992 1 BLJR 158 ; 1992 CriLR 13 ; 1991 3 Crimes(SC) 444 ; 1992 CrLJ 518 ; 1992 EastCrC(SC) 46 ; 1991 4 JT 65 ; 1992 1 PLJR(SC) 1 ; 1992 1 PLJR(SC) 99 ; 1991 3 RCR(Cri) 623 ; 1991 2 Scale 654 ; 1992 Supp1 SCC 727 ; 1992 SCC(Cri) 349 ; 1992 1 SCC(Cri) 349 ; 1992 1 UJ 208 ; 1992 KHC 632
SUPREME COURT OF INDIA
S.R. PANDIAN AND K. JAYACHANDRA REDDY, JJ.
Mukteshwar Rai and others, Appellants
Versus
State of Bihar, Respondent
Criminal Appeals Nos. 459-60 with 458 of 1988, D/- 25-9-1991.
WITH
Bhola Rai Kurmi and others, Appellants
Versus
State of Bihar, Respondent
Act Referred :INDIAN PENAL CODE : S.302, S.149, S.364, S.436
(A) The offences alleged arise from a communal mob violence occurring in a village, where the accused were members of an unlawful assembly gathered with weapons. The provisions of Indian Penal Code S.302 (murder), S.149 (unlawful assembly), S.364 (kidnapping or abducting in order to murder), and S.436 (mischief by fire or explosive substance with intent to destroy house) are central to the case. Section 302 read with Section 149 establishes liability for murder when committed by a member of an unlawful assembly. Section 364 read with Section 149 and Section 436 read with Section 149 addresses offences of kidnapping or mischief compounded by the presence in an unlawful assembly. The specific overt acts of setting fire and causing death attract the combined provisions of S.436 with S.149, while the resulting homicides attract S.302 read with S.149, read together with the Arms Act where applicable.
(B) Key legal principles include the doctrine of constructive liability of members of an unlawful assembly for acts committed in prosecution of the common object under Section 149, the requirement of specific intent for murder under Section 302, and the application of Sections 364 and 436 read with Section 149 for offences involving force or fire in furtherance of such assembly. The case underscores that mere presence at the scene is insufficient; liability under Section 149 requires active participation or a shared common object, and the common object must extend to the specific grave offence proved beyond reasonable doubt.
Facts of the case:
On 25-3-1978, a mob armed with rifles, guns, spears, and lathis gathered in a village, causing residents to flee. The mob set houses on fire and ransacked them. A police officer arrived, and the mob dispersed. Two persons were found charred to death, and two others were missing, presumed dead or abducted. Multiple eyewitnesses identified several accused persons as present during the incident. Some accused were found near the fires, but it was not established that any of them were armed.
Findings of Court:
The court confirmed the presence of the accused in the unlawful assembly and held them liable under Sections 302/149 and 364/149 and 436/149, with modified sentences. However, the specific overt acts of actively setting fire and throwing victims into the fire were disbelieved. The court found no evidence that any accused was armed and concluded that the common object was at most to commit mischief by fire under Section 436 read with Section 149, not murder. Consequently, convictions for murder under Section 302 read with Section 149 were set aside for some accused, while other convictions were confirmed. Sentences under Sections 364/149 and 436/149 were reduced from 10 years to 5 years.
Issues:
1. Whether mere presence in an unlawful assembly, without proof of individual participation in overt acts, is sufficient to attract liability for murder under Section 302 read with Section 149.
2. Whether the common object of the unlawful assembly can be inferred to include murder where only mischief by fire is established, in the absence of direct evidence linking specific accused to the homicides.
3. How to evaluate the liability of accused when some overt acts are disbelieved and no evidence shows accused were armed.
Ratio Decidendi:
The court held that to attract liability under Section 302 read with Section 149, it must be proven that the common object of the unlawful assembly extended to murder. While the accused were liable for being part of an unlawful assembly with a common object of committing mischief by fire under Section 436 read with Section 149, the absence of evidence linking them to the specific homicides or to an intent to murder required setting aside the murder convictions and reducing sentences.
Result:
Appeals partly allowed. Convictions under Sections 302/149 for murder are set aside for the accused whose specific overt acts were disbelieved and who lacked evidence of arming. Other convictions under Sections 364/149 and 436/149 are confirmed, with sentences reduced from 10 years to 5 years.
(A) The offences alleged arise from a communal mob violence occurring in a village, where the accused were members of an unlawful assembly gathered with weapons. The provisions of Indian Penal Code S.302 (murder), S.149 (unlawful assembly), S.364 (kidnapping or abducting in order to murder), and S.436 (mischief by fire or explosive substance with intent to destroy house) are central to the case. Section 302 read with Section 149 establishes liability for murder when committed by a member of an unlawful assembly. Section 364 read with Section 149 and Section 436 read with Section 149 addresses offences of kidnapping or mischief compounded by the presence in an unlawful assembly. The specific overt acts of setting fire and causing death attract the combined provisions of S.436 with S.149, while the resulting homicides attract S.302 read with S.149, read together with the Arms Act where applicable.
(B) Key legal principles include the doctrine of constructive liability of members of an unlawful assembly for acts committed in prosecution of the common object under Section 149, the requirement of specific intent for murder under Section 302, and the application of Sections 364 and 436 read with Section 149 for offences involving force or fire in furtherance of such assembly. The case underscores that mere presence at the scene is insufficient; liability under Section 149 requires active participation or a shared common object, and the common object must extend to the specific grave offence proved beyond reasonable doubt.
Facts of the case:
On 25-3-1978, a mob armed with rifles, guns, spears, and lathis gathered in a village, causing residents to flee. The mob set houses on fire and ransacked them. A police officer arrived, and the mob dispersed. Two persons were found charred to death, and two others were missing, presumed dead or abducted. Multiple eyewitnesses identified several accused persons as present during the incident. Some accused were found near the fires, but it was not established that any of them were armed.
Findings of Court:
The court confirmed the presence of the accused in the unlawful assembly and held them liable under Sections 302/149 and 364/149 and 436/149, with modified sentences. However, the specific overt acts of actively setting fire and throwing victims into the fire were disbelieved. The court found no evidence that any accused was armed and concluded that the common object was at most to commit mischief by fire under Section 436 read with Section 149, not murder. Consequently, convictions for murder under Section 302 read with Section 149 were set aside for some accused, while other convictions were confirmed. Sentences under Sections 364/149 and 436/149 were reduced from 10 years to 5 years.
Issues:
1. Whether mere presence in an unlawful assembly, without proof of individual participation in overt acts, is sufficient to attract liability for murder under Section 302 read with Section 149.
2. Whether the common object of the unlawful assembly can be inferred to include murder where only mischief by fire is established, in the absence of direct evidence linking specific accused to the homicides.
3. How to evaluate the liability of accused when some overt acts are disbelieved and no evidence shows accused were armed.
Ratio Decidendi:
The court held that to attract liability under Section 302 read with Section 149, it must be proven that the common object of the unlawful assembly extended to murder. While the accused were liable for being part of an unlawful assembly with a common object of committing mischief by fire under Section 436 read with Section 149, the absence of evidence linking them to the specific homicides or to an intent to murder required setting aside the murder convictions and reducing sentences.
Result:
Appeals partly allowed. Convictions under Sections 302/149 for murder are set aside for the accused whose specific overt acts were disbelieved and who lacked evidence of arming. Other convictions under Sections 364/149 and 436/149 are confirmed, with sentences reduced from 10 years to 5 years.
Judgement
K. JAYACHANDRA REDDY, J. :- These are all connected appeals and arise out of the judgment of the Patna High Court in Criminal Appeals Nos. 219 and 231 of 1981. The prosecution case is as follows:
On 25-3-1978 at about 11 A.M. persons of several villages gathered in village Bisharam four miles away from P. S. Dinara in District Rohtas. They were variously armed with rifles, guns, bhalas (spear), lathis etc. and the mob was searching for some persons in the village and the villagers fled in all directions. It is also alleged that the mob set some houses on fire and ransacked them. On receiving information P.W. 8, a Police Officer came there and the mob fled. According to the prosecution in all four persons were killed. Two of them got burnt and the other two were not traced. Therefore, according to the prosecution those two must have died or must have been abducted by the mob. The prosecution examined P.Ws.1 to 12, 14, 16, 18, 22 and 30 as eye-witnesses. After completion of the investigation the charge-sheet was laid. The learned Sessions Judge who tried the case convicted all the appellants under S.364 read with S.149, S.436 read with S.149 and S. 395 and sentenced each of them to undergo 10 years R.I. and all of them were also convicted under S.302 read with S.149, I.P.C. and each of them was sentenced to imprisonment for life. Ramdular Rai, A-30 was also convicted under S.30 of the Arms Act and sentenced to undergo imprisonment for three months. All the convicted accused preferred two appeals Nos. 219 and 231 of 1981. The State also preferred appeal No. 42 of 1981 against the acquittal of four of the accused. All the three appeals were heard by a Division Bench of the High Court. Both the learned Judges agreed that the State appeal has to be dismissed and accordingly dismissed the same. So far as the convicted accused are concerned, one learned Judge took the view that they should be acquitted but the other learned Judge disagreed. Therefore the appeals were heard by a third learned Judge. He acquitted six of them. He also set aside the conviction under S.395 and sentence of 10 years R.I. thereunder but confirmed the convictions and sentences of others. The convicted accused have preferred these three appeals against the same common judgment.
2. Shri Kohli, learned counsel appearing for the appellants submitted that there was a big mob and on the basis of mere presence of some of them the conviction cannot be sustained. It is also his submission that the third learned Judge who convicted the appellants has applied a mechanical test namely that if two or three witnesses have identified any of the appellants then they are held to be members of the unlawful assembly. The learned counsel also submitted that if the overt acts attributed to some of the accused are completely disbelieved then on the mere presence all the appellants cannot be held constructively liable for the major offences by the application of S. 149, I.P.C.
3. We have perused the impugned judgment. The learned Judge has discussed the evidence of all the eye-witnesses and thereafter he has discussed the case against each of the accused and such of those appellants who have been identified by two or more eyewitnesses have been held to be the members of the unlawful assembly. We may observe that so far as the presence of the present appellants are concerned who learned Judges have accepted the prosecution case and after going through the evidence carefully we see no reason to disagree. Therefore the presence of these appellants in the mob is established.
4. Before considering the nature of offences committed by these appellants we may note that the place and time of occurrence are beyond dispute. Likewise the presence of the eye-witnesses also cannot be doubted at all. The fact that several houses were burnt and two persons were charred to death and that some houses were ransacked, is also established. There was sufficient motive because of some of the criminal proceedings under S.107 etc. Therefore the persons who gathered were members of an unlawful assembly. To this extent we see no hesitation to agree with the findings of the High Court. But the specific overt acts attributed to A-1 and five others who are said to have actively participated in setting the fire and thrown some of the victims into the fire stand disbelieved. It may also be noted that none of the P.Ws. is injured and we find from the judgment of the High Court that none of the witnesses say that any one of these appellants were armed. The learned Judge has extracted the incriminating part in each of the witnesses against these appellants. It stated that these accused were identified by those respective witnesses mentioned therein in discussing the case against each of the accused. There is nowhere any mention that any one of these appellants was armed. In such a situation the question is whether these appellants also had a common object of committing the murder. We have given earnest consideration to this aspect. Taking a general picture of the case and after a close scrutiny of the evidence we find that two persons were charred to death. This must have been the result of setting fire to those houses. With regards the other two missing persons it cannot be concluded that they were murdered in the absence of any iota of evidence. Under these circumstances we find it extremely difficult to hold that a common object of the unlawful assembly was to commit murder.
5. We are unable to agree with the learned counsel that these appellants were mere onlookers. The prosecution case is that mob in which these appellants were present moved into the village. Therefore it is established beyond reasonable doubt that the common object of the unlawful assembly was at least to set the fire punishable under S.436 read with S.149, I.P.C. So in the result the conviction in respect of each of these appellants under S.302 read with S.149, I. P. C. and sentence of imprisonment for life are set aside. The other convictions are confirmed. But so far as the sentence under S.364 read with S.149 and S.436 read with S.149, I. P. C. is concerned, it is reduced from 10 years to 5 years. All the other convictions and sentences are confirmed. With the above modifications these three appeals are partly allowed.
Appeals partly allowed.
For Citation : AIR 1992 SC 483
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