Moti Das And Ors. vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 6 May, 1954

Coram: B.K. Mukherjea, Ghulam Hasan, Bose J.

In the case titled Moti Das and others versus the State of Bihar, decided on 6 May 1954, the Supreme Court examined the convictions of six appellants. Five of the appellants had been found guilty under Section 147 of the Indian Penal Code and each received a sentence of one year’s rigorous imprisonment. The sixth appellant, Misri Das, had been convicted under Sections 148 and 324 of the Indian Penal Code; he was sentenced to fifteen months’ rigorous imprisonment for the offence under Section 148, and no separate sentence was imposed for the offence under Section 324. The Court noted the convictions and the sentencing before turning to the matters raised on appeal.

The Court observed that the conviction of Misri Das under Section 324 required no further comment because it concerned an individual act for which the only issue raised related to the credibility of the witnesses. Following the established rule of not interfering with findings of fact, the Court dismissed that portion of the appeal without elaboration. The remaining questions focused on whether an unlawful assembly had existed at the time of the incident. The Court traced the background of a dispute over the right to occupy and cultivate certain lands. It was established that the title to the lands in question belonged to Jattu Rai (identified as plaintiff-witness 4) and a person named Gena Kumar. Originally, the lands had been owned by Mangal Das and others, against whom a decree for arrears of rent had been obtained. In execution of that decree, the lands were auctioned and purchased by Banarsi Prasad in 1927, who subsequently sold them to Jattu Rai and Gena Kumar on 25 July 1928. The prosecution alleged that Jattu Rai and Gena Kumar personally cultivated a portion of the purchased area and employed a number of bataidars—Sonu Gope (plaintiff-witness 1), Sahdeo Gope (plaintiff-witness 5), Jadu Gope (plaintiff-witness 6), Manu Gope (plaintiff-witness 8) and Nankeshwar Pas-ban (plaintiff-witness 9)—to work the remaining portion. The appellants, however, contended that they themselves were the bataidars of Jattu Rai and Gena Kumar and had been in actual possession and cultivation of the land since the sale date of 25 July 1928. The lower courts found that neither side had succeeded in proving exclusive possession, and the Supreme Court accepted that factual finding.

The Court then turned to the incident that gave rise to the prosecution, which occurred on 30 November 1947. According to the prosecution evidence, particularly the testimonies of Sonu Gope (plaintiff-witness 1) and Sahdeo Gope (plaintiff-witness 5), both of whose statements had been accepted, the appellants entered their fields accompanied by roughly one hundred to one hundred fifty labourers and thirty to forty individuals armed with lathis. At least one appellant, Misri Das, was said to be carrying a spear. The group began cutting the paddy that was growing in the fields. Observing this, Sonu Gope, who claimed to be the bataidar, hurried to a police outpost located about half a mile away and returned with the police havildar (plaintiff-witness 3) and two constables. Upon reaching the fields, Sonu Gope advanced to confront the appellants. The Court accepted the version of events as narrated by Sahdeo Gope, which described that the reapers were removing bundles of paddy when Sonu Gope attempted to stop them. Moti, identified as an appellant, gave the order to assault. Misri Das rushed toward Sonu Gope, who fled; Misri Das caught up with him and struck him with a spear, causing Sonu Gope to fall in the field of Rasul Mian. The remaining accused then assaulted Sonu Gope with lathis. The police havildar and constables arrived, restrained the accused named Jagan and Churaman, and took them into custody. Both the trial court and the High Court had accepted this narrative, and the Supreme Court affirmed that those facts formed the basis of the case.

According to the testimony of the witnesses, after the police havaldar and two constables arrived at the fields, Sonu Gope stepped forward to remonstrate. When he reached the spot, he began to protest, and the subsequent events were described by Sahdeo Gope. He recounted that the reapers were carrying bundles of paddy and that Sonu moved ahead to stop them. Moti gave the order to assault, and Misri rushed toward Sonu, causing Sonu to flee. Misri overtook Sonu and struck him with a spear, causing Sonu to fall in the field belonging to Rasul Mian. The other accused then attacked him with lathis. The havaldar and the constables arrived and apprehended the accused Jagan and Churaman. Both the trial court and the appellate court accepted this version, and the same facts are taken as established. On the basis of these facts, counsel for the appellants argued that no conviction could be founded. The counsel maintained that the prosecution must be strictly confined to the charge and could not go beyond it. The charge alleged that the appellants formed an unlawful assembly with the common object of stealing the paddy and assaulting Sonu Gope in the course of that theft. The appellants had been acquitted of the dacoity charge, whose essential element was theft, because the prosecution had failed to prove that the complainant possessed the paddy or that the accused did not. Consequently, the counsel contended that, in the absence of a theft, there could be no assault on Sonu Gope as a component of the theft. Alternatively, even if the portion of the charge relating to Sonu Gope were separated, the counsel asserted that the appellants could not have assembled with the purpose of assaulting him because no one anticipated his arrival. Therefore, the alleged common object was lacking, and without a common object there could be no unlawful assembly and consequently no riot. The counsel further argued that if a few individuals in a lawful assembly suddenly acted violently, each could be held only for his own actions; the assembly could not become unlawful simply because of those isolated acts, as an unlawful assembly requires a pre-concerted common object.

The Court observed that it was unnecessary to decide whether the assembly was lawful at its inception. Assuming, for argument’s sake, that the gathering was lawful despite the number of persons present and the presence of armed lathials, the assembly became unlawful the moment Moti Das invited the others to assault Sonu Gope and they responded by chasing him as he fled. From the facts, it could be legitimately inferred that those who pursued Sonu did so with the intention to assault him, especially since the assault actually occurred. The Court noted that the motive prompting each individual to run after Sonu likely arose spontaneously and independently, without relation to Moti Das’s incitement. An assembly that begins lawfully may later become unlawful, as explained in the commentary to Section 141 of the Indian Penal Code. The legal principle, as set out in the eighteenth edition of Ratanlal’s Law of Crimes, states that an assembly lawful at its inception may become unlawful due to subsequent acts of its members, and it may turn unlawful suddenly without prior concert among them. However, an illegal act committed by one or two members, not endorsed by the others, does not alter the character of the assembly. Thus, the Court held that a prior concert is not a prerequisite; the common object required by Section 141 is distinct from a mere private intention of individual participants.

In the present case, the Court observed that a call made by Moti Das, under the circumstances described, was intended to assault Sonu Gope, especially because the assault actually occurred. The Court considered that the motive that prompted each individual to pursue the victim likely arose spontaneously and independently, and it was not necessarily linked to Moti Das’s incitement. The Court then explained that an assembly which was lawful at the time of its formation may become unlawful later, a principle that is reflected in the Explanation to Section 141 of the Indian Penal Code. Referring to the eighteenth edition of Ratanlal’s Law of Crimes, the Court quoted that an assembly lawful in its inception may turn unlawful by the subsequent acts of its members, and that such a transformation may happen abruptly and without prior concert among the members. However, the Court noted that an illegal act by one or two members, which is not acquiesced in by the others, does not alter the character of the assembly. The Court clarified that the requirement of a “common object” under Section 141 is different from the “common intention” required by Section 34, and that prior concert is not a prerequisite for an assembly to become unlawful.

The Court then turned to the charge itself and held that it could not accept the argument that the two objects alleged—namely theft and assault—were inseparable. The Court observed that if the prosecution had framed two separate counts or placed the objects in distinct paragraphs, the objection would not have arisen. Nevertheless, the Court stated that a mere imperfection in the charge does not invalidate a conviction unless prejudice to the accused can be shown. The Court pointed out that any irregularity in the charge was curable under Sections 225 and 537 of the Criminal Procedure Code. In the present facts, the Court found no possibility of prejudice because the First Information Report contained a detailed and straightforward account of the incident, involving only six accused and a few prosecution witnesses who presented concise testimonies. Consequently, the Court upheld the convictions under Section 147 of the Indian Penal Code and the conviction of Misri Das under Section 148, noting that Misri Das was armed with a spear and used it, thereby falling squarely within that provision once the assembly was held to be unlawful. The Court further declined to interfere with the sentences, observing that the presence of thirty to forty “lathials” at a site where peaceful paddy reaping was occurring demonstrated an intention to use force. Since the complainant had sought the assistance of the authorities rather than taking the law into his own hands, the Court concluded that leniency was not warranted. Accordingly, the appeal was dismissed and the convictions and sentences were maintained.

The Court concluded that the penal orders previously imposed on the convicted individuals shall continue to operate exactly as they were originally pronounced, without any alteration, reduction, suspension, or commutation. It directed that the terms of imprisonment, any monetary penalties, and any other forms of punishment set by the lower authority must remain in full force and effect, and that no further relief or modification shall be granted with respect to those sentences. Accordingly, the records shall reflect that the sentences as originally imposed are to be enforced unchanged, and the authorities responsible for their execution shall carry out the punishments exactly as stipulated in the earlier judgment. This direction confirms that the sentences shall be maintained in their entirety, and no further intervention by this Court shall affect the existing custodial or financial obligations imposed on the accused.