High CourtDivision Bench1981-03-24Appeal allowed; conviction and sentence set asi...

BHUDEO MANDAL & OTHERS v. STATE OF BIHAR

Case / Petition Number:Criminal Appeal No. 365 of 1974

Neutral Citation:(1981) 3 SCR 291

Case Details & Bench

Court: High Court
Hon'ble Judges: S. Murtaza Fazal Ali
Baharul Islam
A. Varadarajan
Judgment Date: 1981-03-24
Court Decision / Holding: In the result the appeal is allowed and the conviction and sentence of the appellants are set aside and the appellants are acquitted of the charge framed against them. The appellants are hereby discharged from their bail bonds and need not surrender.
Final Disposition: Appeal allowed; conviction and sentence set aside; acquitted.

Parties to the Case

Appellants / Petitioners

Dayanand Mandal
Bhubneshwar Mandal
Kuldip Mandal
Bhagwat Mandal
Nemo Mandal
Udin Yadav

Respondents

State of Bihar

Legal Representation & Advocates

Counsels for Petitioners

• U.P. Singh

Counsels for Respondents

• K.G. Bhagat
• U.N. Prasad

Case Synopsis & Summary

This Supreme Court appeal arises from a Patna High Court decision convicting six appellants—Dayanand Mandal, Bhubneshwar Mandal, Kuldip Mandal, Bhagwat Mandal, Nemo Mandal and Udin Yadav—for offences arising out of an irrigation dispute. According to the prosecution, when the appellants attempted to irrigate land, they were resisted by the deceased Bhudeo Mandal; in the ensuing confrontation, Bhudeo Mandal inflicted a bhala blow on Mainu Mandal, who died, while the other appellants, armed with lathis, did not injure witnesses or the deceased. The Sessions Judge convicted Bhudeo Mandal under IPC section 304 Part I and the others under 326/149, while acquitting on charges under sections 323 and 325. The Patna High Court, however, convicted under 325/149 but failed to make a finding on the common object of the unlawful assembly. The Supreme Court holds that there is no evidence or finding of the ingredients of section 149. The occurrence was rooted in an irrigation dispute and the appellants acted under a bona fide claim or belief of a right to irrigate. Merely being armed with lathis does not prove a common object. The Court emphasizes that a conviction under section 149 requires a clear finding of a common object, and the object must be unlawful; it also requires compliance with section 141. Accordingly, the appeal is allowed and the convictions are set aside.

Provisions of Law Cited

Indian Penal Code, 1860, s. 149Indian Penal Code, 1860, s. 304 Part IIndian Penal Code, 1860, s. 326/149Indian Penal Code, 1860, ss. 323Indian Penal Code, 1860, ss. 325Indian Penal Code, 1860, s. 141

Legal Doctrines & Maxims

Common object of an unlawful assembly
Essential ingredients of section 141 IPC
Clear finding required when convicting under section 149
Bona fide claim or belief in a right to irrigate (contextual)
Mere presence/arming with weapons does not establish common object

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that there was no material to establish the ingredients of section 149 IPC. The occurrence stemmed from an irrigation dispute, with the appellants acting under a bona fide belief in their right to irrigate the land. There was no overt act attributed to any appellant linking them to the deceased; merely being armed with lathis did not prove a shared common object. The Sessions Judge's conviction of Bhudeo Mandal under 304 Part I and the others under 326/149 lacks support, and the High Court's conviction under 325/149 rests on absence of a clear finding on the common object. They argued that the essential ingredients of section 149 and the object under section 141 must be established, and in this case there was none. They urged that the High Court erred in convicting under 326/149 without a clear finding of the object; since the main accused was convicted under 304 Part I, the others should not be convicted under alternative sections.

Contentions of Respondents

The State contended that there was a common object of the unlawful assembly and the acts were in prosecution of that object, given the sequence of events and the deceased's death. The main accused inflicted a bhala blow; the other appellants, though not injuring witnesses, assisted or joined in the unlawful assembly. They contended that the High Court's attempted conviction under 326/149 should be maintained and that the common object should be specified; however, the State's counsel conceded that it would be difficult to sustain the conviction given the lack of a clear finding of the common object in evidence, and emphasized the necessity of a clear finding under s.149. The Court ultimately addresses this by reversing the conviction for lack of evidence, requiring a clear object, and acquitting the appellants.

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Extracted Judgment Text

Exact text extracted from official judgment records.

##### A B ## c D E ##### F G ### _y_ .. ¥"' # .... 291 BHUDEO MANDAL & OTHERS _V._ STATE OF BIHAR _March 24,_ _1981_ [S. MURTAZA fAZAL ALI, BAHARUL !SLAM, AND A. VARADARAJAN, JJ.) _Indian Penal Code_ _1860-S._ _149·-Conviction under clear finding regarding_ _common object_ _of assembly-Necessity of._ When the appellants wanted to irrigate the land they were prevented from doing so by the deceased as a result of which the !st appellant who is now dead gave a bhala blow to the deceased. The other appellants were supposed to have been armed with lathis but they did not cause any injuries either to the witnesses or to the deceased. The Sessions Judge convicted the l st appellant under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/149 of the Indian Penal Code and senten ced them to undergo 3 years' rigorous imprisonment but affirmed the acquittal of the individual charges under sections 323 and 325 I.P.C. The High Court while convicting the appellant under sections 325/149 of the I.P.C. has given no finding regarding the common object of the unlawful assembly. Accepting the appeal, the Court HELD : In the instant case, there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecu tion. Even on the prosecution case itself the occurrence took place as a result of an inigation dispute and the appellants were merely acting under a· _bona fide_ claim or belief that they had the right to irrigate the land. There is no overt act attributed to any of the appellants in regard to the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common object with which the deceased was inspired. [292 G-H] 2. Before the High Court upheld the conviction of the appellants under sections 326/149 I.P.C. it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. [293 A] #### 3. Whenever the High Court convicts any person or persons of an H offence with the aid of section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must ##### **A** **B** ## c **D** E **F** **G** **H** 292 SUPREME COURT REPORT [1981] 3 S.C.R. show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the l.P.C. the essential ingredients of section 141 of the I.P.C. must be established. [293 DJ I CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal No. 365 of 1974. Appeal by Special Leave from the Judgment and Order dated 24.1.1974 of the Patna High Court at Patna in Criminal Appeal No. 306/ I 969. _U._ _P._ _Singh_ for the Appellants. _K._ _G._ _Bhaget_ and _U._ _N._ _Prasad_ for the Respondent. The Judgment of the Court was delivered by FAZAL Au, J. This appeal by special leave is directed against the judgment of the Patna High Court dated 24.1.1974 and has been preferred by appellants Dayanand Manda!, Bhubneshwar Manda!, Kuldip Manda!, Bhagwat Mandal, Nemo Manda!, and Udin Yadav. The occurrence seems to have arisen out of an irrigation dispute. According to the prosecution case the appellants wanted to irrigate the land and when they were prevented from doing so, Mainu Manda! resisted as a result of which Bhudeo Manda! who is now dead gave a bhala blow to the deceased Mainu Manda!. So far as the other appellants are concerned, they are supposed to have been armed With laihis but they did not cause any injuries either to the witnesses or to the deceased. The Sessions Judge had convicted the accused Bhudeo Manda! under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/I 49 of the Indian Penal Code and sentenced them to 3 years rigorous imprisonment but affirmed the acquittal of the accused of the individual charges under sections 323 and 325 of the Indian l'enal Code by the Sessions Judge. We have gone through the judgment of the High Court which while convicting the appellant under section 326/149 of the Indian Penal Code has given no finding regarding the common object of the unlawful assembly. Even on the prosecution case itself the occurrence took place as a result of an irrigati~n dispute and the appellants were merely acting under a _bona fide_ claim or belief that they had the right to irrigate the land. There is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were armed with Iathis by itself would not prove that they shared the common ## _y_ BHUDEO MANDAL _v._ BIHAR _(Fazal Ali,_ _J.)_ 293 object with which Bhudeo Manda! was inspired. Before the High Court could have upheld the conviction of the appellants under section 326/149 of the Indian Penal Code, it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. In these circumstances we find ourselves in complete agreement with the argument of Mr. U.P. Singh, learned counsel for the appellants that there is no material to support the conviction of the appellants under section 326/149 of the Indian Penal Code. Mr. Bhagat appearing for the State fairly conceded that in the circumstances of this case it would not be possible for him to support the conviction mainly on the ground that since the main accused was convicted under section 304, Part I the other appellants should also have been convicted under section 304/ l 49 and not under section 326 of the Indian Penal Code. We should like to point out that whenever the High Court convicts any person or persons of an offence with the aid of section 149 a clear finding regarding the comn:ion object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the Indian Penal Code, the essential ingredient of section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. In tbe instant case there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution. In the result the appeal is allowed and the conv1ct10n and sentence of the appellants are set aside and the appellants are acquitted of the charge framed against them. The appellants are hereby discharged from their bail bonds and need not surrender. N.K.A. _Appeal allowed._ A B ## c D E F