Mahadeva Sharma and ors. Vs. State of Bihar - Court Judgment

Hidayatullah, J.

1. In these two appeals by nine persons, who have been convicted under s.302/149, Indian Penal Code, special leave is limited to one question of law,namely, whether the accused could be legally convicted under the above sectionswhen they were not charged and convicted under s. 147 or s. 148 of the IndianPenal Code It appears from the judgment under appeal that there was adifference of opinion on this point in the High Court at Patna and the appealsin the High Court were disposed of by a full Bench which held that chargesunder Sections 147 and 148 were not necessary before conviction under s. 302, IndianPenal Code could be made with the aid s. 149, Indian Penal Code.

2. In view of the limited nature of the appeals only the essential facts maybe stated. The person who lost his life was one Misari who was related to someof the accused persons. In the past there were other incidents. In 1955 oneAjablal was murdered and some of the present accused were prosecuted but wereacquitted. Subsequently, one Baldeo Sharma was murdered and some of theprosecution witnesses in this case were charged with that offence. At the timeof the judgment under appeal (August 30, 1962) an appeal was pending in thePatna High Court against the conviction of the accused in that case.

3. The present occurrence took place on April 24, 1958. The prosecution caseis that Misari was going in the morning to call labourers when he was attackedby the appellants with diverse weapons, He died as a result of his injuries anda case was registered under s. 302, Indian Penal Code. The appellants werecharged at the trial alternatively under s. 302/149 and 302/34, Indian PenalCode. The Additional Sessions Judge, Monghyr convicted three of the appellantson both the charges, sentencing them to imprisonment for life on the firstcharge only. The remaining accused were acquitted. Appeals by those who wereconvicted and by the State Government against the acquittal of the others wereheard together and were disposed of by the common judgment now under appeal.The appeal of the State Government was allowed and that of the three convictedaccused was dismissed. As a result all the original accused were convictedunder s. 302/149, Indian Penal Code and were sentenced to imprisonment forlife. During the hearing of the appeals a point was raised by the State counselin the appeal by the State that the trial was bad inasmuch as no charge unders. 147 or s. 148 had been framed. The Divisional Bench thinking that the pointmight benefit the convicted accused allowed it to be raised but referred theappeals to a Full Bench in view of an earlier decision on tins point with whichthey did not agree. The Full Bench overruled the earlier decisions and came tothe conclusion that it was not obligatory for the validity of the convictionunder s. 302/149. Indian Penal Code that a charge under s. 147 or s. 148 shouldhave been framed and a conviction under those sections recorded.

4. The charges against the appellants were as follows :

'First :- That, you on or about the 24-4-58 at 7a.m. at village Jhanjhra P. S. Parbatta, District Monghyr were members ofunlawful assembly, armed with gun, bhala and chhura (dagger) and in prosecutionof the common object to murder Misari Sharma you all caused such bodily injuryto Misari Sharma, which caused his death, the offence punishable under section302 I. P. C. and thereby committed an offence punishable under section 149/302 of the Indian Penal code and within the cognizance of Court of Sessions.'

'That you, on or about the24-4-58 at 7 a.m. at village Jhanjhra P. S. Parbatta, district Monghyr infurtherance of the common intention of you all caused the death of MisariSharma, intentionally and knowingly, and thereby committed an offencepunishable under section 302/34 of the Indian Penal Code, and within mycognizance and I hereby direct that you be tried by the said court on the saidcharge'.

. . . . . . . . . . .

5. No charge under s. 147 or s. 148 was framed and the question is whetherthe conviction under s. 302/149, Indian Penal Code could legally be recorded inthe absence of such a charge or charges. Mr. S. P. Verma has brought to ournotice the earlier unreported decisions of the Patna High Court which were consideredand overruled by the Full Bench and has contended that they were correct andthe judgment under appeal is erroneous.

6. Section 149 occurs in Chapter VIII of the Indian Penal code which dealswith offences against the public tranquillity. That chapter consists oftwenty-one sections and most of them are concerned with assemblies which are adanger to public peace. Such assemblies are designated unlawful assemblies andthe punishment for membership varies in severity according as the assembly onlymenaces the public peace or actually disturbs it. The scheme of the Chapter maynow be examined.

7. Section 141 defines an unlawful assembly as an assembly of five or morepersons the common object of which is inter alia to commit an offence. Thereare five clauses which describe the many kinds of common objects which renderan assembly unlawful. These clauses need not be reproduced here for nothingturns on them in the present case. Here we are concerned with the offence ofmurder and according to the charge the common object of the accused who hadformed themselves into an assembly was to commit the murder of Misari. Thiscommon object has been held proved and there can thus be no question that thiswas an unlawful assembly. Continuing again with the scheme of the Chapter, wenext see that s. 142 says that a person is considered to be a member of anunlawful assembly, if, being aware of facts which render any assembly anunlawful assembly he intentionally joins that assembly or continues in it. Amere membership of an unlawful assembly is punishable under s. 143. Under thenext section heavier punishment is awardable to a person who joins an unlawfulassembly armed with a deadly weapon or with anything which used as a weapon ofoffence is likely to cause death. Section 145 next provides for a similarhigher punishment for a person who joins or continues in an unlawful assemblyknowing that it has been ordered to disperse. These sections make membership assuch of an unlawful assembly punishable, though in varying degrees.

8. Section 146 then defines the offence of rioting. This offence is said tobe committed when the unlawful assembly or any member thereof in prosecution ofthe common object of such assembly uses force or violence. It may be noticedhere that every member of the unlawful assembly is guilty of the offence ofrioting even though he may not have himself used force or violence. There isthus vicarious responsibility when force or violence is used in prosecution ofthe common object of the unlawful assembly. The next two sections prescribepunishment for the offence of rioting. Section 147 punishes simple rioting.Section 148 punishes more severely a person who commits the offence of riotingarmed with a deadly weapon but the section makes only a person who is so armedliable to higher punishment. Section 149 then creates vicarious responsibilityfor other offences besides rioting. The section provides as follows :

'149. Every member of unlawful assembly guilty ofoffence committed in prosecution of common object. If an offence is committedby any member of an unlawful assembly in prosecution of the common object ofthat assembly, or such as the members of that assembly knew to be likely to becommitted in prosecution of that object, every person who, at the time of thecommitting of that offence, is a member of the same assembly, is guilty of thatoffence'.

9. For the application of the section there must be an unlawful assembly.Then if an offence is committed in prosecution of the common object of thatassembly or is such as the members of the unlawful assembly know to be likelyto be committed then whoever is member of that assembly at the time the offenceis committed is guilty. The remaining sections do not help in the presentdiscussion.

10. This being the scheme, is it obligatory to charge a person under s. 147or s. 148 before s. 149 can be utilized Section 149 does not state this to bea condition precedent for its own application. No other section prescribes thisprocedure. Sections 146 and 149 represent conditions under which vicariousliability arises for the acts of others. If force or violence is used by amember in the prosecution of the common object of the unlawful assembly everymember of the assembly is rendered guilty of the offence of rioting and ispunishable for that offence under s. 147. The offence of rioting must, ofcourse, occur when members are charged with murder as the common object of theunlawful assembly. Section 148 creates liability on persons armed with deadlyweapons and it is a distinct offence. It need not detain us. If a person is notcharged under s. 147 it does not mean that s. 149 cannot be used. When anoffence (such as murder) is committed in prosecution of the common object ofthe unlawful assembly or the offence is one which the members of the assemblyknew to be likely to be committed in prosecution of the common object,individual responsibility is replaced by vicarious responsibility and everyperson who is a member of the unlawful assembly at the time of the committingof the offence becomes guilty. It is not obligator)- to charge a person unders. 143, or s. 144 when charging him with s. 147 or s. 148. Similarly, it is notobligatory to charge a person under s. 143 or s. 147 when charging him for anoffence with the aid of s. 149. These sections are implied. It may be useful toadd a charge under s. 147 and 148 with charges under other offences of thePenal Code read with s. 149. but it is not obligatory to do so. A person mayjoin an unlawful assembly and be guilty under s. 143 or 147 or 148 but he maycease to be its member at the time when the offence under s. 302 or some otheroffence is committed. He would not in that event be liable for the otheroffence for s. 149 would not apply to him. The present case is not of thatkind.

11. The fallacy in the cases which hold that a charge under s. 147 iscompulsory arises because they overlook that the ingredients of s. 143 areimplied in s. 147 and the ingredients of s. 147 are implied when a charge unders. 149 is included. An examination of s. 141 shows that the common object whichrenders an assembly unlawful may involve the use of criminal force or show ofcriminal force, the commission of mischief or criminal trespass or otheroffence, or resistance to the execution of any law or of any legal process.Offences under Sections 143 and 147 must always be present when the charge is laidfor an offence like murder with the aid of s. 149, but the other two chargesneed not be framed separately unless it is sought to secure a conviction underthem. It is thus that s. 143 is not used when the charge is under s. 147 or s.148, and s. 147 is not used when the charge is under s. 148. Section 147 may bedispensed with when the charge is under s. 149 read with an offence under theIndian Penal Code.

12. The charges that are framed against the appellants and which we havereproduced earlier, contain all the necessary ingredients to bring home to eachmember of the unlawful assembly the offence of murder with the aid of s. 149.The prosecution has proved the existence of an unlawful assembly, its commonobject which was murder of Misari and the membership of each of the appellants.Nothing more was necessary. Of course, if a charge had been framed under s. 147or 148 and that charge had failed against any of the accused then s. 149 couldnot have been used against him. The area which is common to Sections 147 and 149 isthe substratum on which different degrees of liability are built and therecannot be a conviction with the aid of s. 149 when there is no evidence of suchsubstratum. It is quite a different thing to say that to lay down thissubstratum one must frame first a charge under s. 143, then a charge under s.147 and then a charge under R. 149. The last named section is not dependent onthe others because the others are implied in circumstances in which s. 149 isused. There can be proof under s. 149 of the existence of an unlawful assembly,of the common object and of the part played by the unlawful assembly or any ofits members, same as under s. 143 or s. 147 or s. 148. There may be additionalcharges under these sections to guard against failure of the charge for anoffence read with s. 149 but the other charges cannot be regarded as conditionprecedent.

13. We agree with the conclusion of the Full Bench and therefore confirm thejudgment under appeal. The appeals will be dismissed.

14. Appeals dismissed.