IMPORTANT POINT
Where no injury is inflicted pursuant to common object (of unlawful assembly) to kill the deceased, but caused only when provoked by one of the witnesses, the members of unlawful assembly cannot be held guilty for the commission of the offence of murder.

Headnote:Indian Penal Code, 1860-Sections 302 r/w 149-Common object of the unlawful assembly by appellants to commit trespass to take possession of land of the informant and his family members by force-Murder of Sardari Raut committed by Bhaiya Manis Raut who was member of unlawful assembly-Trial Court holding that the members of unlawful assembly knew that the murder was likely to be committed in prosecution of the common object of criminal trespass-Whether correct? (No) Appellant Sukhan Raut is proved to have instigated Bhaiya Mani Raut to give fatal blow-What does it prove -Common object or common intention-The later-Appellant Sukhan Raut is guilty for offence under Sections 302 r/w 34-Other appellants committed offences under Sections 147, 148, 323 r/w 149 of IPC-They are liable for those offences only-Question of sentence-Appellant Sukhan will suffer life imprisonment and others sentence of period they have already undergone-Case of Bhaiya Mani not affected-Appeal allowed accordingly.
       Held : Special Leave Petition filed by Bhaiya Mani Raut was rejected by this Court vide order dated 6.9.1999. (Para 2)
       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 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. (Para 6)
       It is admitted that no member of the unlawful assembly except Bhaiya Mani Raut, inflicted any injury on the person of the deceased despite 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 fleeing towards south, no member of the unlawful assembly prevented him or in, any other way facilitated the accomplishment of the crime of murder committed 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 mortem revealed the following injuries on the person of the deceased:
        (i) One incised wound on frontal area of scalp 2"x 3/4" bone deep with crack fracture of the frontal bone.
        (ii) One abrasion on left leg near ankle 1/4" x l/4".
       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 appellant 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 attending circumstances at the time of commission of the offence do not indicate that all the accused had the common object of committing the murder of Sardari Raut. However, the position of Sukhan Raut, the appellant is different. He is proved to have instigated Bhaiya Mani Raut for giving a tangi blow to the deceased in consequence of which he died. Though not common object, yet common intention is proved against Sukhan Raut. It is established beyond any shadow of doubt that Sukhan Raut 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 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 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 sentenced to the imprisonment already undergone by them. Accordingly, the appeal is disposed of by holding guilty and convicting Sukhan Raut under Section 302 read with Section 34 of the Code. He is 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 Raut, 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. The bail bonds of Sukhan Raut are cancelled and he is directed to be taken into custody forthwith for serving out the remaining part of his sentence. (Paras 9 to 12)

JUDGMENT

Sethi, J.-Appellants along with one Bhaiya Mani Raut @ Babu Muni 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 this appeal.

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

3. Mr. P.S. Misra, learned Senior Counsel appearing for the appellants has 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 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 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.

4. 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 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 against the action of the appellants, he was abused and threatened. Tarni Raut (PW3) asked Sat Narain (PW5) to call the Sarpanch and directed Hare Krishna Raut (PW9) to inform the police. At this point of time Sukhan Raut, appellant who was armed with spade and lathi directed Bhaiya Mani Raut to attack Sardari Raut. Bhaiya Mani Raut gave a Tangi blow on the head of Sardari Raut who started fleeing towards South but fell down in the nearby field whereafter Dewan Raut is alleged to have thrown a stone weighing about 4 kgs on the chest of Sardari Raut resulting in his instantaneous death. Bal Krishan Raut (PW1), Hakim Raut (PW8), Tarni Raut (PW3) were assaulted by the appellants 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 (PW9) 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.

5. The appellants pleaded not guilty and stated that they were falsely 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 their appeal was dismissed by the High Court.

6. Section 149 of the Code makes the members of an unlawful 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

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2001 Supreme(SC) 1626

IMPORTANT POINTWhere no injury is inflicted pursuant to common object (of unlawful assembly) to kill the deceased, but caused only when provoked by one of the witnesses, the members of unlawful assembly cannot be held guilty for the commission of the offence of murder.

IMPORTANT POINT
Where no injury is inflicted pursuant to common object (of unlawful assembly) to kill the deceased, but caused only when provoked by one of the witnesses, the members of unlawful assembly cannot be held guilty for the commission of the offence of murder.