RAMASHISH YADAV AND ORS.versusSTATE OF BIHAR

                   RAMASHISH YADA V AND ORS.                                  A
                               v.
                        STA TE OF BIHAR

                         SEPTEMBER 9, 1999

          [G.B. PATTANAIK AND N. SANTOSH HEGDE, JJ.]                          B

     Indian Penal Code, 1860 :

       Ss. 3021149, 302134, 324134, s.141-Unlawful assemb~Murder-Land
dispute between complainant side and accused persons-Accused 13 in C
number,; some armed with gun, gandasa, knife and lathis-One accused shot
dead a person on complainant side-Two others gave gandasa blows to
another person on complainant side as a result the victim died-Two more
accused caused knife injuries to complainant-Trial Court convicted all the
accused uls. 3021149 and sentenced them to imprisonment for life-High
Court acquitted 5 and convicted remaining 7 u/s, 302, 3021149 and 302134; D
one of the accused died pending appeal-Held, from the prosecution evidence
it is not established that accused persons constituted an unlawful assembly-
Their conviction by taking recourse to s.149 is unsustainable-Conviction
u/s. 3021149 set aside-Accused who fired gunshot causing death of the
person on complainant side convicted uls. 302-Accused who caused death E
of another person by giving him gandasa blows, convicted uls. 302134-
These tr.ree accused sentenced to imprisonment for life-The other two accused
who caused knife. injuries to the complainant convicted u/s. 324134 and
sentenced to imprisonment for two years.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.                    f
719-722of1996.

      From the Judgment and Order dated 31.1.96 ofthe Patna High Court in
Crl. A. Nos. 543/88, l/89, 13 and 30of1989.

     M.P. Jha and Ram Ekbal Roy for the Appellants.
                                                                              G
     B.B. Singh for the Respondent.

     The following Order of the Court was delivered by :

     Seven accused appellants who were tried along with 6 others for having
                                   285                                        H
     286                    SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

 A committed an offence under section 302/149 and some other offences were
     ultimately convicted by the learned Sessions Judge under section 302/149 and
     were sentenced to rigorous imprisonment for life for having caused the murder
     of Mundrika and Ram Tapeshwar yadav. Out of the 13 accused persons who
                                                         •
     were convicted by the learned Session Judge, one expired after the judgment
B of the learned Sessions Judge. The High Court considered the case of all the
    accused persons who stood convicted by the learned Sessions Judge and
    acquitted 5 of them but maintained the conviction of rest 7 under sections
    304, 302/149, 302/34 and other offences and as such these appeals are by the
    7 appellants. According to the prosecution case these accused persons were
    ploughing the land claiming the land to be theirs on the date of occurrence
C and smpe of the accused persons had a gun while some others had weapons
    like gandasa and lathis. When the informant and some others belonging to
    his party went and protested as to why they are ploughing the land belonging
    to the informant the accused persons asserted that it is their land and,
    therefore, they would continue to plough the land in question. On this score
    there was some altercation and then accused Ram Das Yadav brought out the '
D gun and fired which hit Mundrika and Mundrika died at the spot. Two other
    accused persons, namely, Ram Pravesh Yadav and Ramanand Yadav suddenly
  ·came and caught hold of Tapeshwar Yadav belonging to the complainant
    party and at that point of time Samundar Yadav and Sheo Layak Yadav came
   with gandasa in their hand and gave blows on the head of Tapeshwar by
E means of gandasa. The informant was caught hold by Ramanand Yadav,
    Sukhdeo Yadav, Sheo Layak Yadav and Ram Ishwar Yadav who has already
   died, gave a lathi blow on the wrist and Ramanand Yadav gave a chhura blow.
   On the basis of information given by PW .1, the police stared investigation
   and submitted the charge-sheet, as already stated. The prosecution case is
   sought to be proved through the evidence of the 3 eye witnesses PWs. l, 3
F and 4. The learned Sessions Judge relying upon the evidence of the aforesaid
   eye witnesses came to hold that all the accused persons formed an unlawful
   assembly and in furtherance of the common object of the said assembly
   accused Ram Das Yadav had fired the gun as a result of which Mundrika died
   and, therefore convicted all of them under section 302/149. Accused Ram Das
G Yadav who had given the gun blow was convicted under section 302. On
   appeal, the High Court re-appreciated the evidence of the three eye witnesses
   PWs. I, 3 and 4 and came to the conclusion that their evidence can be relied
   upon which finds corroboration from the evidence of the doctor. The High
   Court further came to the conclusion that there is satisfactory and convincing
   evidence on record to establish that Mundrika Yadav had been shot at by
H Ram Das Yadav, after some exchange of words in the field and Mundrika died
     t
     f
                   RAMASHISH Y ADA V v. ST ATE OF BIHAR                     287
   at the spot and that Ram Tapeshwar after being caught was given blows with      A
   gandasa by Samundar yadav and Sheo Layak Yadav and the informant too
_ after being caught had been given blows with lathi and chhura by Ram Ishwar
   Yadav and Ramanand Yadav but since the witnesses had not ascribed any
   positive role to accused Rajeshwar Yadav, Chandeshwar Yadav, Devi Dayal
   Yadav, Rajendra Yadav and Sonadhari Yadav, they cannot be held to have
   shared the common object of assaulting or killing persons who became the        B
   victim of the occurrence and accordingly held them to be not guilty of any
   offence and acquitted them of the charges. But so far as the five appellants
   are concerned, the High Court held them guilty of the offence under section
   302/149 IPC, and affirmed the sentence of imprisonment for life. The High
   Court also held accused Samundar Y adav and Sheo Layak Yadav to be guilty       C
   of offence under section 302/34 IPC for having caused the murder of Tapeshwar
   and affirmed the sentence of life imprisonment thereunder. Besides, Rameshwar
   Yadav's conviction under section 325 for causing grievous injury to the
   informant and sentencing him to undergo R.I. for two years was upheld. So
   far as the conviction of the accused Ramanand under section 307 IPC, the
 · High Court set aside the same and instead convicted him under section 324       D
   IPC and sentenced him to undergo R.I. for one year. The sentences were
   directed to run concurrently.

         It is contended by the learned counsel for the appellants that even
   taking the prosecution case in full on the evidence of PWs. 1, 3 and 4 only     E
  Ram Das Yadav can be convicted under section 302 who has fired the gun
  and Mundrika died on account of the gun shot injury and the two others who
  have the gandasa blo~s on Tapeshwar can be convicted under section 302/
  34. But the two others who caught hold Tapeshwar as well as two other
  appellants who never assaulted either Mundrika or Tapeshwar who had caused
  the injury on PW. l could not have been convicted under section 302/149.         F
  Mr. B.B. Singh, appearing for the State of Bihar, on the other hand, contended
  that the very fact that accused persons went there with arms in the hands
  and then after the informant party went and challenged, there was exchange
  of words and then they started assault as a result of which two people died,
  it must be held that all of them had the common object and could be held         G
  liable by taking recourse of section 149. In the alternative he argued that at
  least those who caught hold of deceased who facilitated the other two
  accused persons to give the gandasa blow on Tapeshwar would be liable
  under section 302/34. To appreciate the contentions of Mr. Singh we have
  scrutinised the evidence of PWs. 1, 3 and 4. From the evidence it transpires
  that the accused persons had gone to the field and were ploughing. Obviously,    H
     288                     SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A at that point of time it cannot be said that they constituted an unlawful
   assembly within the meaning of section 141 of the Indian Penal Code inasmuch
   as it has not been established by the prosecution that they had one of the
   five specified objects enumerated in section 141 of the IPC, as their common
   objects. Mr. B.B. Singh, however, relied upon the explanation to section 141
   and contended that an assembly which was not unlawful, when it assembled,
B may subsequently become an unlawful assembly. There is no dispute with the
   aforesaid preposition. But from the evidence of PWs. 1, 3 and 4, it is difficult
   for us to conceive that at any later point of time the accused persons can be
   said to have nurtured one of the five specified objects as their common
   objects. This being the position and in the absence of establishing the fact
C that the accused persons constituted an unlawful assembly, their conviction
  by taking recourse to section 149 IPC is unsustainable. Section 149 postulates
  an assembly of five or more persons having a common object namely, one of
  those named in section 141 and then the doing of acts by members of the
  assembly in prosecution of that object. In view of our conclusion that there
  was no unlawful assembly, conviction of the appellants under section 149 IPC
D cannot be sustained. We accordingly set aside the conviction of the appellants
  under section 302/149 IPC. But so far as the accused Ramdas Yadav is
  concerned, the witnesses being consistent that it is he, who fired the gun
  shot which hit Mundrika and Mundrika died and medical evidence corroborates
  the same, he is convicted under section 302 IPC and sentenced to imprisonment
E for life.
           Coming to the question of applicability of section 34 for the murder of
     Tapeshwar, we find from the evidence of the three eye witnesses that while
     Ram Pravesh Yadav and Ramanand Yadav caught hold ofTapeshwar, accused
     Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows
F    on the head of Tapeshwar, as a result of which Tapeshwar died. section 34
     lays down a principle of joint liability in the doing of a criminal act. The
     absence of that liability is to be found in the existence of common intention
    animating the accused leading to the doing of a criminal act in furtherance
    of such intention. The distinct feature of section 34 is the element of
G   participation in action. The common intention implies acting in concert,
    existence of a pre-arranged plan which is to be proved either from conduct
    or from circumstances or from any incriminating facts. It requires a pre-
    arranged plan and it presupposes prior concert. Therefore, there must be prior
    meeting of minds. The prior concert or meeting of mind may be determined
    from the conduct of the offenders unfolding itself during the course of action
H   and the declaration made by them just before mounting the attack. It can also
                      RAMASHISH Y ADA V v. ST A TE OF BIHAR                     289
     be developed at the spur of the moment but there must be pre-arrangement A

-    or premediated concert. This being the requirement oflaw for applicability of
     section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and
     Ramanand Yadav came and caught hold ofTapeashwar, whereafter Samundar
      Yadav and Sheo Layak Yadav came with gandasa in their hands and gave
     blows by means of gandasa, it cannot be said that the accused Ram Pravesh B
      Yadav and Ramanand Yadav shared the common intention with accused
     Samundar yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh
     Yadav and Ramanand Yadav cannot be held guilty of the charge under
     section 302/34 IPC but accused Samundar Yadav and Sheo Layak Yadav did
     commit the offence under section 302/34, having assaulted deceased Tapeshwar
     on his head by means of gandasa on account of which Tapeshwar died. The C
     accused Ram Pravesh Yadav and Ramanand Yadav are, therefore, acquitted
     of the charges levelled against them and they be set at liberty forthwith. So
     far as the two other appellants are concerned, namely, Ramashis Yadav and·
     Sukhdeo Yadav, they have merely caused injury to the informant by means
     of a knife and for causing such injury they can only be convicted under
     section 324/34 IPC and are sentenced to imprisonment for two years. But they b
     have already been in custody for more than seven years by now, they should
     also be set at liberty forthwith .. In the net result, therefore, the convicticm of
     appellant Ram Das Yadav under section 302 IPC and sentence of imprisonment
     for life is upheld and his appeal stands dismissed. Conviction of all other
     appellants under section 302/149 is set aside. Conviction of appellants Samundar E
     Yadav and Sheo Layak Yadav under section 302/34 IPC and sentence of
     imprisonment for life is upheld. Appeal by them, therefore, stands dismissed.
     Accused Ram Parvesh and Ramanand are acquitted of the charges and be set
     at libert}r forthwith. Accused Ramashis Yadav and Sukhdeo Yadav are
     convicted under section 324/34 IPC and sentenced to two years' R.I. and
     since they have already been in custody for more then seven years, they are F
     directed to be set at liberty forthwith.

           The appeals are disposed of accordingly.

--   RP.                                                    Appeals disposed of.