1956 Supreme(SC) 29

SUPREME COURT OF INDIA
5th April, 1956
BOSE, JAGANNADHA DAS AND CHANDRASEKHARA AIYAR, JJ.
Sukha and others, Appellants
Versus
State of Rajasthan, Respondent.
Criminal Appeal No. 133 of 1955
Advocates Appeared
Mr. Jai Gopal Sethi, Senior Advocate (Mr. K. R. Krishnaswami and Mr. K. R. Chaudhry, Advocates with him), for Appellants; Mr. Porus A. Mehta Mr. P. G. Gokhale, Advocates, for Respondent.

Headnote: Question as to prejudice-Cr. P. Code, S. 225-Art. 136, Constitution of India.

       Held: The Supreme Court will be slow to entertain question of prejudice when details are not furnished. The fact that the objection is not taken at an early stage will also be taken into account. - Sections 149, 34-Common object and common intention Distinction-Rioting-Conviction.

       Thirty six persons were committed for trial in a case of rioting. Of these, two died during the course of the proceedings. The remainder were all charged under section 325/149 of the I.P.C. and eleven were also charged under section 302/149. The Sessions Judge acquitted twenty five of the charge under section 325/149 and convicted nine. He acquitted all the eleven who were charged under section 302/149 but convinced nine of them under section 325/149. The State did not appeal the acquittals of the twenty five under section 325/149 nor did it appeal against the acquittals of two of the eleven who were charged under section 302/149 but it appealed against the acquittals of the examining nine who had been convicted under section 825/149. These nine convicts also appealed. The High Court dismissed the appeal of the convicts and allowed that of the State. The convictions of the nine persons were accordingly altered to ones under section 302/149 of the I.P.C. and the lesser sentence of transportation was given to each.

       Held (dismissing the appeal) : (1) "The finding is that the eleven accused who were charged for the murder were all involved in the beating of the injured persons. That satisfies one of the ingredients of rioting namely the presence of five or more persons. But that of course is not enough. These must, in addition, be an assembly and that assembly muss have a common object and the object must be unlawful.

       "But a common object is different from a common intention in that it does not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the people get there. It is not for us to re-assess the evidence in special leave. All we can say is that there are circumstances from which Courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit had started; and as two courts of fact were satisfied that it did, there is no reason for us to interfere. Persons who had come there quite lawfully, in the first instance, thinking there were thieves could well have developed an intention to beat up the thieves instead of helping to apprehend them or defend their properties; and if five or more shared the object and joined in the beating, then the object of each would become the common object.

       "This is not to say that all those present were members of that assembly. The presumption of innocence would preclude such a conclusion. Those who rushed to the scene in the circumstances disclosed must be presumed to have gone there for a lawful purpose even if they were armed. The apprehension of marauders who prowl the town at night and the defence of person and property are lawful objects. But when that object is exceeded and persons begin to beat up the suspect the act of beating becomes unlawful, for private persons are no more entitled to beat and ill-treat thieves than are the police, especially at a time when there is nothing beyond suspicion against them. But if five or more exceed the original lawful object and each has the same unlawful intention in mind and they act together and join in the beating, then they in themselves form an unlawful assembly. There is no difference in principle between this and a case in which the original object was unlawful" .. (per Bose J.)

       (2) "Any person who carries a fire arm at that hour of the night and uses it and then continues a fight after an excited crowd has assembled and when at least nine of them rush in to join in the beating after his first shot must know either somebody is likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a member of persons armed with lathis is likely to cause death from shock. Riots of this kind are common and death frequently results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion but Sukha and Gumana as men of ordinary intelligence must have known, it (ibid). - Section 367-Appreciation of evidence-Evidence Act,

       Section 5.

       Held: Where one part of a witnesss evidence is disbelieved, Judges of fact have the right to act on the rest of his testimony. - Sections -Falsus in uno falsus in omnibus.

       Held: Where one part of witnesses evidence is disbelieved. Judges. off act have the right to act on the rest of the testimony.